This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Between January 2019 and January 2021 alone, the Army charged 18 soldiers under Article 93a across its training installations, according to data the Army provided to Military Times (reporting published circa 2021). These cases confirmed the need for a standalone provision targeting sexual misconduct in training environments.
Article 93a (10 U.S.C. § 893a) took effect on January 1, 2019, as part of the Military Justice Act of 2016. It is one of several entirely new punitive articles the MJA added to the UCMJ, and its focus is narrow: sexual misconduct by persons in positions of special trust toward military recruits, trainees, and applicants. Before Article 93a existed, this conduct was prosecuted under Article 93 (cruelty and maltreatment), Article 120 (sexual assault), or Article 134 (the general article). None of those provisions specifically addressed the unique vulnerability of people entering military service for the first time.
Consent Is Not a Defense
Article 93a defines two distinct offenses built on the same principle: people in positions of special trust who engage in prohibited sexual activity with those they are entrusted to lead have committed a crime regardless of whether the other person consented.
Subsection (a): Abuse of Training Leadership Position
An officer, NCO, or petty officer who holds a training leadership position over a specially protected junior member of the armed forces and engages in prohibited sexual activity with that person violates 93a(a). The MCM 2024 (Part IV, Paragraph 48a) specifies the elements: the accused held the relevant position, the victim was a specially protected junior member, and prohibited sexual activity occurred.
Subsection (b): Abuse of Position as Military Recruiter
A military recruiter who engages in prohibited sexual activity with an applicant for military service, or with a specially protected junior member enlisted under a delayed entry program, violates 93a(b).
What separates both offenses from general sexual offense articles is subsection (d): under Article 93a, consent is not a defense. This is not a drafting oversight. It reflects a deliberate congressional judgment that the power imbalance between a drill instructor and a trainee, or between a recruiter and an applicant, is so extreme that meaningful consent cannot exist within it. Trainees depend on the instructor for their progression, their evaluation, their daily welfare, and often their physical safety. Applicants depend on the recruiter for their entry into military service. Structurally, the relationship is coercive even when no explicit threat is made.
Who Is “Specially Protected”
The statute defines “specially protected junior member of the armed forces” with precision. It includes members who are assigned to or awaiting assignment to basic training or initial active duty for training, members enrolled in entry-level training at a service academy or preparatory school, and members within their first year of service in the armed forces. Coverage also extends to applicants for military service and members enlisted under delayed entry programs.
This definition creates a temporal boundary. But the protection expires. A service member who has completed initial training and passed their first year of service is no longer “specially protected” under Article 93a, even if the same power imbalance persists in a subsequent training environment. If misconduct occurs outside the Article 93a window, it may still be prosecutable under Article 93, Article 120, or Article 134, but without 93a’s consent-is-no-defense provision.
The temporal limitation has drawn criticism from some military justice practitioners who argue that the power imbalance between instructor and student exists in advanced training environments as well, not only in initial entry training. Congress chose the narrower scope, focusing Article 93a on the population it deemed most vulnerable, people who are newest to the military and have the least institutional knowledge, the fewest resources, and the weakest understanding of their rights.
The Relationship to Article 93
Article 93 and Article 93a are companion provisions, not replacements. Article 93 remains the general prohibition against cruelty, oppression, and maltreatment of anyone subject to the accused’s orders. It covers physical abuse, verbal abuse, sexual harassment, and any other form of maltreatment, a broad statute with broad application.
Article 93a is narrower in scope but harsher in consequence. It targets only sexual misconduct, only by persons in training leadership or recruiting positions, and only toward specially protected junior members or applicants. Maximum punishment: dishonorable discharge, total forfeiture, and five years’ confinement, exceeds Article 93’s maximum of three years. The harsher penalty reflects the aggravating factor of the trust relationship and the victim’s particular vulnerability.
Overlap is possible. A drill instructor who sexually harasses a trainee has maltreated a person subject to their orders (Article 93) and engaged in prohibited sexual activity with a specially protected junior member while in a training leadership position (Article 93a). The prosecution can charge under both, and conviction under both is possible if the elements of each are independently satisfied.
What the Prosecution Must Prove
For abuse of training leadership position: that the accused was an officer, NCO, or petty officer; that the accused was in a training leadership position with respect to a specially protected junior member; that the accused engaged in prohibited sexual activity with that person; and that the accused knew, or reasonably should have known, the victim was a specially protected junior member. “Prohibited sexual activity” is defined by reference to Article 120; it encompasses sexual acts and sexual contact as those terms are defined in the sexual assault article.
For abuse of recruiter position: that the accused was performing duties as a military recruiter; that the accused engaged in prohibited sexual activity with an applicant for military service or a specially protected junior member under delayed entry; and that the accused knew or reasonably should have known the victim’s status. Knowledge can be proven through circumstantial evidence, a recruiter who processes someone’s enlistment paperwork and then engages in sexual conduct with them cannot credibly claim ignorance of their status.
Article 93a exists because general prohibitions against maltreatment were insufficient to address sexual exploitation of recruits and trainees. The consent-is-no-defense provision reflects a statutory judgment: where the power imbalance is extreme enough that meaningful consent cannot reliably exist, the law removes consent as a variable entirely. The protection is deliberately limited in time, covering only the initial training period and first year of service, but within that window it is absolute.
Joseph L. Jordan, Attorney at Law: Article 93a, effective January 1, 2019, specifically criminalizes prohibited sexual activity by persons in positions of special trust toward military recruits, trainees, and applicants. Consent is not a defense. The article targets the unique vulnerability of individuals entering military service.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.