Consent Under Article 120, UCMJ — Military Sexual Assault Defense

Consent is the central issue in most Article 120 court-martial cases.

Yet under military law, consent is far narrower—and far more aggressively challenged—than most service members realize.

If you are accused of sexual assault under Article 120 of the Uniform Code of Military Justice (UCMJ), understanding how the military defines consent is critical to your defense.

What Is “Consent” Under Article 120, UCMJ?

Under Article 120, consent means a freely given agreement to the sexual conduct at issue. The law focuses not just on what happened, but on whether the alleged consent was legally valid at the time.

Key points under military law:

• Consent must be affirmative and voluntary
• Consent can be withdrawn at any time
• Silence or lack of resistance is not consent
• Prior sexual history does not automatically imply consent
• Consent must exist at the moment of the alleged act

What matters is not what you believed emotionally—but whether the law recognizes consent under the circumstances as a reasonable person in your shoes would see them.

When Consent Is Legally Invalid Under Military Law

Even if both parties participated in sexual activity, Article 120 treats consent as invalid in many common military scenarios.

Consent may be legally negated if the alleged victim was:

• Asleep or unconscious
• Intoxicated to the point of incapacitation
• Incapable of consenting due to mental or physical condition
• Coerced, threatened, or placed in fear
• Deceived about the nature of the act or the identity of the person

Alcohol is one of the most common battlegrounds. Intoxication alone does not eliminate consent, but impairment sufficient to prevent understanding or decision-making can.

This distinction is often misunderstood—and aggressively exploited by prosecutors.

Mistake of Fact as to Consent

Military law recognizes mistake of fact as to consent as a defense in some Article 120 cases.

This defense applies when:

• The accused honestly believed the other person consented, and
• That belief was reasonable under the circumstances

Text messages, prior interactions, conduct before and after the encounter, and witness testimony often determine whether this defense succeeds.

Importantly, this is not a moral judgment—it is a legal one. Prosecutors frequently attempt to collapse “reasonable belief” into hindsight.

A skilled defense attorney pushes back hard.

Alcohol, Consent, and Article 120 Prosecutions

Many military sexual assault cases involve alcohol. This creates enormous legal risk.

Common prosecution arguments include:

• “Too intoxicated to consent”
• “Memory gaps equal incapacity”
• “Regret equals non-consent”

But intoxication does not automatically negate consent under the UCMJ. The government must prove impairment sufficient to eliminate capacity—not merely drinking.

Defense counsel must carefully reconstruct timelines, alcohol consumption, behavior, and communications to challenge overbroad assumptions.

Alcohol and Article 120 UCMJ

Why Consent Evidence Is Often Suppressed (MRE 412)

Even when consent is the defense, the military’s rape shield rule (Military Rule of Evidence 412) often blocks relevant evidence.

Judges frequently exclude:

• Prior consensual encounters
• Flirtatious texts or messages
• Photos or communications showing mutual interest

Unless the defense fits within narrow exceptions, consent-related evidence may never reach the panel.

This is why Article 120 consent cases must be litigated aggressively and early.

Credibility and Consent Cases

In many cases, the dispute is not about what happened—but how it is later described.

Consent cases often hinge on:

• Changing statements over time
• Delayed reporting
• External pressures (relationships, command, alcohol violations)
• Motive to reinterpret consensual conduct

Establishing consent frequently means challenging credibility, not attacking character.

A careful, disciplined approach matters.

Common Scenarios Where Consent Is Disputed

We routinely see consent disputes arise from:

• Consensual encounters followed by regret
• Relationships violating fraternization or adultery rules
• Alcohol-fueled encounters between service members
• Situations where both parties were drinking
• Fear of collateral misconduct charges

These dynamics can be unique to military life and often misunderstood by investigators.

Why Consent Requires Experienced Military Defense Counsel

Consent under Article 120 is not intuitive. It is statutory, technical, and heavily litigated.

An experienced military defense lawyer knows:

• How consent is actually applied in courts-martial
• How to preserve consent evidence early
• How to litigate MRE 412 and pretrial motions
• How to frame consent without alienating judges or panels

This is not a case for assumptions or explanations after the fact.

What to Do If Consent Is an Issue in Your Case

If consent is central to your case:

• Do not explain yourself to investigators
• Do not assume texts or witnesses “will speak for themselves”
• Do not consent to searches of your phone or devices

Early legal strategy determines whether consent evidence survives.

Your Rights.

Speak With an Article 120 Consent Defense Lawyer

If you are under investigation or charged under Article 120 UCMJ, and consent is disputed, early intervention is critical.

Contact Cave & Freeburg for a confidential consultation with experienced military sexual assault defense attorneys who understand how consent cases are actually won.

Consent Under Article 120 – FAQs

Is consent a defense to Article 120 charges?

Yes. Consent or mistake of fact as to consent can be a valid defense depending on the facts.

Does alcohol automatically eliminate consent?

No. The government must prove impairment sufficient to negate capacity, not merely intoxication.

Can prior sexual history be used to prove consent?

Usually no, due to MRE 412—unless a narrow exception applies.

Can consent be withdrawn?

Yes. Consent can be withdrawn at any time, and continued conduct after withdrawal can be criminal.

Should I talk to investigators to explain consent?

No. Explanations often make cases worse. Speak with a lawyer first.

By PhilIp Cave and Nathan Freeburg at www.court-martial.com