Article 120b requires the government to prove the age of the alleged victim as an element of the offense. In most cases that proof is straightforward, presented through a birth certificate or testimony from a parent or guardian. In some cases, however, the age of the person involved is genuinely uncertain at the time of the alleged conduct, either because the accused had no reliable means of knowing, or because the evidence of age is less clear than the government asserts.
The mistake of fact defense, which the accused did not know and had no reason to know that the person was a minor, is recognized under certain circumstances in Article 120b prosecutions. Its availability and the standard of reasonableness applied to the accused’s belief are questions of law that courts have addressed in ways that create both opportunities and limits for the defense. Raising this defense requires early investigation into what information was available to the accused and how a reasonable person in that situation would have assessed it.
How the Government Proves Age as an Element of the Offense
Age is an element of Article 120b offenses, meaning the government must prove beyond a reasonable doubt that the alleged victim had not attained the relevant age threshold at the time of the alleged conduct. The standard method of proof is a birth certificate, introduced through a records custodian or stipulated to by the defense. When a birth certificate is unavailable or disputed, the government may introduce other forms of documentary evidence, testimony from a parent or guardian, school records, or medical records that establish a birth date.
In cases where the victim’s age is not obviously apparent and the documentary record is contested or incomplete, the evidentiary dispute becomes a genuine issue for the panel. The government bears the burden of proving age just as it bears the burden of proving every other element, and a defense that successfully creates reasonable doubt about whether the age threshold was met has created reasonable doubt about a required element of the offense. The strength of this argument depends entirely on the specific evidence available and the accuracy of the government’s documentation.
Acceptable Forms of Evidence for Establishing Age at Trial
The government’s standard approach to proving age is through documentary evidence, typically a certified copy of the alleged victim’s birth certificate or an equivalent official record of birth. When a birth certificate is available and undisputed, the age element is rarely contested at trial. The interesting cases are those in which the documentary evidence is unavailable, contested, or ambiguous, and the government must establish age through alternative means.
Alternative evidence of age can include school enrollment records, medical records, passport or identification documents, testimony from a parent or guardian who can establish date of birth from personal knowledge, and in some cases expert testimony about age estimation from physical characteristics. Each of these alternatives has vulnerabilities that defense counsel can exploit. A parent’s testimony about a date of birth is generally reliable but is not documentary proof of the same weight as a certified birth record. Expert estimation of age from physical characteristics is inherently uncertain and subject to meaningful cross-examination.
Cases Where Age Was Genuinely Disputed and How Courts Ruled
Military courts have addressed age disputes in a range of factual contexts. Cases where the alleged victim presented identification documents claiming an age above the relevant threshold, where the accused had no reason to question the documents’ accuracy, and where the documents turned out to be false have produced outcomes that vary based on the specific circumstances and the jurisdiction’s approach to the mistake of fact defense. Cases where the alleged victim’s physical appearance was consistent with an age above the threshold have produced similar variation.
The consistent thread across these cases is that courts evaluate the reasonableness of the accused’s belief about age based on all circumstances available to them at the time, not on the basis of information that was not accessible. An accused who took reasonable steps to verify age and was misled by false documentation is in a stronger position than one who simply failed to inquire. The specific facts of each case drive the outcome, and defense counsel must develop those facts thoroughly before advising on whether the age defense is viable.
The Mistake of Fact Defense and Its Limits Under Article 120b
The mistake of fact as to age defense, when available, requires showing that the accused held an honest and reasonable belief that the alleged victim had attained the relevant age at the time of the alleged conduct. The belief must be both subjectively genuine and objectively reasonable given the information available to the accused. A belief that no reasonable person could have held, even if the accused claims to have held it sincerely, will not support the defense.
The defense is not available for all Article 120b offenses. For the most serious offenses involving victims below a certain age threshold, the statute may impose strict liability as to age, meaning that no amount of reasonable belief provides a defense. Defense counsel must identify the specific offense charged, the age threshold that applies, and whether the statute permits the mistake of fact defense before advising the client about its viability. Assuming the defense is available without confirming the applicable statutory framework is an error that can significantly mislead the accused about their realistic options.
How Age Ambiguity Affects Charging Decisions
Cases where the alleged victim’s age is genuinely uncertain or contested create charging challenges for prosecutors that can benefit the defense. A prosecutor who charges the most serious version of Article 120b, which carries the highest punishment and the most severe collateral consequences, must be prepared to prove the specific age allegation beyond a reasonable doubt. If the evidence of age is ambiguous, the prosecutor may face a choice between charging a more serious offense with uncertain proof on the age element and charging a less serious offense with stronger proof.
Defense counsel who identify genuine age ambiguity early in the case and who develop the evidence supporting that ambiguity through their own investigation give the defense leverage in pretrial negotiations. A prosecutor who believes the age element will be genuinely contested at trial has incentive to negotiate terms that resolve the case without the risk of a panel finding reasonable doubt on that element. The age ambiguity argument, developed fully and presented credibly, can be a powerful tool in the pretrial resolution of Article 120b cases.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.