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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 105 Misconduct as a Prisoner

This article deals with misbehavior of enlisted members who are in the hands of the enemy during wartime. This misconduct could be in the form of behaving in an inappropriate manner as a prisoner or treating other prisoners inappropriately while the accused is in the hands of the enemy himself.

One important point to note about this article is that the enlisted member has violated it only if he has acted in a manner that goes against the custom, law or regulation. The act must also result in his captors improving his conditions of captivity and a clear detriment to other prisoners in some way (e.g.: reducing their rations). However, escape is not deemed a violation under this article. Escaping captivity is an act authorized by custom. So, escape attempts or actual escape do not constitute violation of article 105 even if this act has resulted in detriment to other prisoners.

The critical components of the two sections under this article are as follows:

a) Misconduct of the accused when he is a prisoner

Elements:

  • That at a specific time and place, the accused acted in a specific way that is contrary to regulation, law or custom and that he lacked the authority to act in this manner.
  • That the accused acted in this manner when he was in the hands of the enemy during wartime.
  • That this act was committed with the objective of achieving favorable treatment from the enemy captors.
  • That, because of this act of the accused person, other prisoners held by the enemy, civilian and military, suffered adverse consequences.
  • Note: a) It is not necessary to prove that other prisoners suffered physical harm from the accused's actions. They may have suffered psychological or other detriment.
    • b) The accused's act must be related to, on behalf of or directed at the enemy captors
    • c) The number of prisoners who gained the enemy's favor owing to the accused's act and the number of prisoners who suffered as a result is irrelevant. Even if the smallest minority suffered detriment as a result of the act of the accused, he has violated this article
    • d) Circumstantial evidence to show the intent of the accused is typically permitted during trial

b) Maltreating other prisoners during captivity by the enemy

Elements:

  • That, at a specific time and place, the accused mistreated a prisoner of the enemy in a specific manner.
  • That the accused committed this act while he himself was a prisoner in the captivity of the enemy.
  • That the accused was in a position of authority over the people or person he mistreated.
  • That there was no justifiable cause for the maltreatment that the prisoner was subjected to at the hands of the accused.

Note: a) 'Maltreatment' refers to infliction of mental or physical or any other kind of abuse. For example, striking the person, assaulting him, subjecting him to improper punishment, depriving his benefits may all constitute maltreatment.

b) Using derogatory words to abuse a prisoner who holds an inferior position to the accused is also maltreatment as it causes mental anguish

c) The term 'position of authority' does not refer only to the military ranking of the accused in relation to other prisoners. The accused has violated this article even if he has self-elected himself to a position of authority or the enemy captors have designated him as an authority figure over other prisoners.

To learn more about this Article refer to the Manual for Courts Martial.

Maximum Punishment: For violating these sections of Article 105, the accused faces maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, life sentence without parole eligibility. The punishment is decided through a court martial process.

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