"Ei Incumbit Probation Qui Dicit."

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 117 Provoking Speeches or Gestures

Article 117 applies to enlisted personnel, who make provoking speeches or use reproachful words and gestures towards another person also covered by the UCMJ. If the offense is brought to the notice of a military court and if the elements of the crime are proven beyond reasonable doubt, the defendant will be court martialed.

A person who is convicted of delivering provoking speeches or gestures shall be confined for up to 6 months, he shall lose 2/3 of his monthly pay for a period 6 months and/or shall get a demotion to the lowest pay grade of E-1.

Determining the elements of the case

  1. The person made wrongful use of certain words and gestures towards another person.
  2. The words that the defendant used or the gestures made by him provoked or reproached the other person.
  3. The person against whom the provoking or reproachful words/gestures were used is also covered under the UCMJ. Note that it is not necessary that the accused should be aware that the other person also came under the UCMJ.

Explanation of what constitutes a 'provoking' or 'reproachful' word or gesture

The words or gestures used should have a potential to cause a breach of peace in an average person and can elicit a retaliatory turbulent or violent act. There is no need to show that the retaliatory act occurred. Censures, reprimands and criticism properly administered during training or in furtherance of discipline or efficiency matters do not constitute provoking or reproachful words.

Note that the provoking or reproachful words or gestures should have been used in the presence of the person against whom they were directed. You cannot go by hearsay and accuse someone of using provoking words or reproachful words against you.

Declarations made by one enlisted person against another, in jest also does not come under the ambit of Article 117, if such a declaration would not provoke an average person. A gesture made in a legitimate or innocent purpose is also not a provoking or reproachful gesture. If the evidence presented indicates any defense of this kind, the military judge should himself instruct the plaintiff comprehensively and carefully on the matter.

Case study to clarify Article 17

A platoon leader takes over the physical training of a platoon, after relieving an NCO of his duty. Apparently, the NCO did not reach his high standards. The platoon leader then goes up to one of the soldiers in the group and accuses him of making disgusted facial gestures. The enlisted member denies that he has made any such gesture. The platoon leader then threatens that he will file Article 117 charges on the soldier unless he changes his attitude.

Does the platoon leader have a case here? Probably not, because the soldier did not use contemptuous language or words. He did not provoke the senior to a fight nor did he use foul language against him. The alleged contempt was also not clearly shown, for example, making an obscene gesture with the hand. So the soldier has not violated Article 117.

Lesser included offenses under Article 117

All the elements under Article 80 (attempts) are also included under Article 117 as 'lesser included offenses'. An 'attempt' is defined as an act committed with a specific intent. Here is an example to explain the meaning of this statement.

Larceny, which is taking away another man's property with the intention of depriving that person of it, permanently comes under Article 121 of the UCMJ. All the elements under Article 121 are also included under article 122, which concerns robbery. Robbery has the same elements, but it also includes using intimidation or force to accomplish the act. For more information on this article, please refer to the Manual for Courts Martial.

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