Incapacitation Definition Under Article 120

Article 120 of the Uniform Code of Military Justice (UCMJ), which has undergone many revisions in the past two decades, outlines the code of conduct regarding “rape and sexual assault generally.” As of the most recent updates to Article 120, once again, the additions attempt to more clearly define considerations of what is meant by incapacitation.

The article uses the word “incapable” to generally define rape and sexual assault as well as the victim’s capacity to deny consent. Thus, if a person is incapable of denying sexual activity, but is forcibly made to participate in a sexual act, it is deemed rape under Article 120. In these cases, the requirement for the prosecution to prove a lack of consent by the victim is no longer required.

The issue becomes more unclear when the court is charged with the duty of determining what level of incapacitation the law encompasses, based on each unique case. The new version of the law seeks to provide a more encompassing and definitive expression of the concept of incapacitation. This would allow for more justice for victims and reduce or eliminate the occurrences of crimes involving forced, unwarranted, or unwanted sexual activity in the armed forces.

What the Law States

Articles 120(b)(3)(A) and 120(d) prohibit an individual from engaging in sexual activity with someone who is incapable of consenting to the act due to their judgment being impaired by drugs or alcohol. While the revisions clarify what it means for someone to be deemed incapacitated, other sections of the article explain that rape occurs if sexual activity takes place when:

  • A person is rendered unconscious as in 120(a)(1).
  • A person is drugged to the point of substantially impairing their ability to evaluate or control their own behavior as in 120(a)(5).
  • A person is asleep, unconscious, or otherwise unaware of the sexual act occurring as in 120(2)(B).

Defining Incapable

Section 3 further goes on to explicitly elaborate on what constitutes a person as being incapacitated. It explains in the first item (A) that any person is guilty of rape and shall be punished according to the resolution of a court-martial who:

  1. Commits a sexual act on another person when that person is incapable of consenting to the sexual act because they are impaired by a drug, intoxicant, or other substance
  2. Is reasonably aware of the intoxication of the victim

Article 120(3)(B) goes on to add that the same application of the law applies to a person who has a physical disability or mental defect that incapacitates them from consciously consenting or having the ability to deny the sexual act at all.

Article 120 Section (8) explicitly defines the term “incapable of consenting” as a person who is:

  1. Incapable of evaluating the nature of the situation and circumstances, and the nature of the conduct, as being sexual
  2. Physically incapable of refusing to participate in the sexual act
  3. Unable to communicate an unwillingness to engage in the sexual act in question

The high standards set forth by these article revisions allow for a broader scope of acts that constitute rape. They also deny the intoxication of the perpetrator as an excuse for any sexual acts performed with someone who doesn’t want to participate, whether they can say so and express that disinterest or not. Furthermore, a guilty verdict does not require the prosecution to prove intent on the part of the perpetrator.

Conviction of Rape or Sexual Assault Under the UCMJ

If found guilty by order of court-martial, there are serious consequences. For instance, all service members who are convicted of sexual assault or rape will be dishonorably discharged on the grounds of bad conduct. They will also be denied the benefits they enjoyed as a member of the armed forces, including pay and veteran benefits, which they cannot get back. Sometimes, the only hope for those who are charged with rape or sexual assault in military court is to hire the most effective lawyer they can find and fight for their right to clear their good name.

Maximum Penalties Under Article 120

For a rape case, having a private attorney could mean the difference between freedom and lifetime confinement without parole. For sexual assault, the penalty is 30 years of confinement plus a dishonorable discharge. An aggravated sexual contact conviction will get a dishonorable discharge and 20 years in confinement. Abusive sexual conduct warrants a seven-year confinement and a dishonorable discharge.

With the severity of the charges, and what these defendants stand to lose, such a serious matter requires a devoted UCMJ attorney who understands Article 120 and has a strong knowledge base of past similar cases.



The legal definition of incapacitation states that it is a lack of mental or cognitive ability, or a lack of physical ability, that results in an individual’s inability to consciously manage their own behavior, personal care, finances, or other personal property. Someone who is incapacitated is not in control of their own well-being and is unable to care for themselves or communicate soundly on their own behalf.

Contact Aaron Meyer Law

Aaron Meyer Law stands with those who are erroneously accused of crimes, including the innocent who are accused of rape or sexual assault by means of Article 120. You are not alone if you are facing a court-martial for charges of violating the 120th article of the UCMJ. Contact Aaron Meyer Law to discuss your case today.

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