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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 128 - Assault

Article 128 of the Manual for Court Martial concerns assault. The text of the statute says that

a) Any service member offering or attempting to do bodily harm to another individual, through unlawful violence or force, whether or not the offer or attempt is consummated, is guilty of committing assault and the accused can be punished as directed by a court martial.

b) Any service member who

  • Assaults with a dangerous weapon or any other means or force which is likely to cause death or severe bodily harm or,
  • Assaults and inflicts severe bodily harm intentionally with a weapon or without it.
  • Such an accused will be held guilty of committing aggravated assault and will be punished as directed by a court martial.

Elements of the offense

  1. Simple assault
  • The accused offered or attempted to inflict bodily harm on a certain individual.
  • The accused accomplished it through unlawful violence or force.
  1. Assault which is consummated by battery
  • The accused inflicted bodily harm on a certain individual.
  • The accused accomplished it through unlawful violence and force.
  1. Assaults which permit increase in punishment to the accused based on the victim's status.

a) The assault was inflicted on a commissioned, warrant officer, non-commissioned or petty officer.

  • The accused offered, or attempted to inflict or even did inflict, bodily harm on a certain individual.
  • The accused accomplished it through unlawful violence or force.
  • The victim was a commissioned, warrant, non-commissioned or petty officer.
  • The accused knew that the individual was a commissioned, warrant, non-commissioned or petty officer.

b) Assaulting a lookout or a sentinel who was executing a duty or any individual who was executing a law enforcement duty.

  • The accused offered to, or attempted to inflict bodily harm on a certain individual.
  • The accused accomplished it through unlawful violence or force.
  • The individual was a lookout or a sentinel who was executing a duty or the individual was executing a duty as a security police, shore patrol, military police, master-at-arms or any other military (civilian even) law enforcement action.
  • The accused knew that individual was executing such duties.

c) Assault consummated by battery on a child who is under 16 years of age.

  • The accused inflicted bodily harm on a certain individual.
  • The accused accomplished it through unlawful violence and force.
  • The individual on whom the bodily harm was inflicted was a child who was under 16 years of age.
  1. Aggravated assault

a) Assaulting with dangerous weapons or through force or means which will likely cause death or at least severe bodily harm.

  • The accused offered to or attempted to inflict or has inflicted bodily harm on a certain individual.
  • He did so through certain means, force or weapon.
  • The accused accomplished it through unlawful violence or force.
  • The means, force or weapon was used in a way that would likely cause death or severe harm to the individual's body.

(Add any of these if applicable)

  • The weapon used to commit the assault was a loaded firearm.
  • The assault was committed on a child who was under the age of 16 years.

b) Assault where severe harm was intentionally inflicted on the individual's body.

  • The accused has committed assault on a certain individual.
  • He has inflicted severe bodily harm on the individual.
  • The accused accomplished it through unlawful violence or force.
  • At the time, the accused intended to cause severe bodily harm.

(Add any of these if applicable)

  • A loaded firearm was used to inflict the injury.
  • The person on whom the injury was inflicted was under 16 years of age.

What is the difference between an 'attempt' type and 'offer' type assault?

If an accused has 'attempted' to assault, he would have shown an intention to inflict harm and made an overt act, showing he was more than prepared to commit assault and if the act itself is capable of inflicting bodily harm. This type of assault can occur even if a victim is unaware that the incident was committed.

In an 'offer' type assault, the accused would have demonstrated unlawful violence. The act may have been intentional or culpably negligent and would have created reasonable apprehension of bodily harm in the mind of the other person. It is not necessary to show that there was any specific intent to commit harm.

No assault if the only element present is preparation for assault

A person cannot be charged with assault, if there was only mere preparation to commit assault. For example, if a person picks up a stone, but does not make an attempt (or offer) to throw it, there is no assault. The use of threatening words does not constitute an assault by itself. However, if the accused performs a menacing gesture or act as he is threatening the other person, it can be an assault, since the actions together demonstrate violence.

What happens if the attempt to assault fails?

An accused who has been charged with assault cannot use the defense that the attempt to assault was doomed to fail, even though he did not know about it then. For instance, an accused raises a gun to shoot a person. He is aware that there are bullets in the chamber and he presses the trigger. But the bullet fails to fire because of a defective cartridge. In this case, he is guilty of committing assault.

It is assault even if the victim retreats

An accused would have assaulted a victim, if he demonstrated violence and his actions showed an ability to inflict harm, leading to a reasonable apprehension in the mind of the person, against whom the violence was perpetuated that unless he retreats, he will receive bodily harm. This is valid even if the victim had retreated and was not in striking distance of the accused. However, the ability to inflict harm should be apparent. So, if a person has aimed a pistol at another person but this person was at such a distance, that the accused could not inflict injury on the person, then it is not assault.

What does assault become battery?

If a person consummates the attempt or offer to commit assault, then it amounts to battery. Note that the force that causes harm to the person can be either directly or indirectly applied. It may be battery, if a person spits on another person, pushes a third person against the victim, sets a dog at him, which bites him, cuts another person's clothes when the other person is wearing it (even without touching the person), shoots a person, causes the person to take poison or hits him with an automobile. If a person who is excused to use force against another person, uses more force than is necessary, then that person would have also committed battery.

Maximum punishment for the offense

1. Simple assault

A. Generally

The accused can be punished with 3 months of confinement and forfeiture of 2/3 rd pay, every month for 3 months.

B. When an unloaded firearm was used

The accused shall be punished with a dishonorable discharge, forfeiture of allowances and pay and 3 years of confinement.

2. Assault which is consummated by battery

The accused can be punished with a bad conduct discharge, forfeiture of allowances and pay and 6 months of confinement.

3. The assault was inflicted on a commissioned, non-commissioned, petty or warrant officer (not in an official function)

a. Assault on a commissioned officer.

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 3 years of confinement.

b. Assault on a warrant officer.

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 18 months of confinement.

c. Assault on a non commissioned officer or petty officer.

The accused can be punished with a bad conduct discharge, forfeiture of allowances and pay and 6 months of confinement.

4. Assaulting a lookout or a sentinel who was executing a duty or any individual who was executing a law enforcement duty.

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 2 years of confinement.

5. Assault which is consummated by battery on a child who is under 16 years of age.

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 2 years of confinement.

6. Assaulting with dangerous weapons or through force or means which will likely cause death or at least severe bodily harm.

a. The weapon used to commit the assault was a loaded firearm.

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 8 years of confinement.

b. The assault was committed on a child who was under the age of 16 years.

The accused can be punished with a dishonorable discharge, total forfeiture and 5 years of confinement.

7. Other cases:

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and 3 years of confinement.

Cases and defenses involving assault

An accused suspected of domestic assault was taken into custody and questioned about the weapon he used to commit the assault. The case being referred to here is U.S Vs Catrett (CAAF 2001). In that case, the accused was not read his Miranda rights. The court ruled that the accused could not claim that the questioning was improper, just because he was not read his Miranda rights.

In U.S Vs Weatherspoon, (CAAF 1998) the court stressed on the risk of harm to the victim against the magnitude of the harm. The likelihood of causing severe body harm or death can be interpreted in different ways, as per the situation. In cases where the act is non-consensual, the focus is on the extent of the harm. In consensual cases, (where an accused infected with HIV has consensual sex with a partner and the partner was unaware of the accused's HIV positive status), the focus is on the risk of harm.

In U.S Vs Bygrave (CAAF 1997), the consent of the victim was not deemed as a valid defense against the charge of aggravated assault, even if the victim knowingly had sexual relations with the accused, who was infected with HIV.

In U.S Vs Klauck (CAAF 1997), the court held as inadmissible the defense that the accused (who was HIV positive) had used a condom prior to engaging in a sexual act with a consenting partner. The accused could not use the defense, because the accused knew that the condom might not stop the transmission of the disease.

In U.S Vs Milton (CAAF 1997), the accused had showed a loaded gun to the victim, warning him to stay away from his wife. The court ruled that the accused's conduct fulfilled the condition of present intent. It also noted that the accused had the ability to inflict injuries. Incidentally, in U.S Vs Davis (CAAF 1998), the court said that if an accused shows an unloaded pistol to a victim as a firearm and not with the intent of using it to bludgeon the victim, the pistol could not be taken as a dangerous weapon.

In U.S Vs Outhier (CAAF 1996), the court ruled that the 'aggravated' element in aggravated assault was proved only if the accused used means which could likely cause the death or cause severe bodily harm to the victim.

In U.S Vs Dimberio (AFCCA 1999), the accused was woken up from sleep by the crying of his infant son. He shook the infant violently in an effort to stop him from crying, so that he could go back and sleep again. The court found the accused guilty of committing aggravated assault on the child (assault which is likely to cause death of severe bodily harm).

In U.S Vs Wall (AFCMR 1982), the accused had fired a pistol into an inhabited dwelling. The court said that whether or not anyone was injured was immaterial and it convicted the accused of aggravated assault.

In U.S Vs Everson, (AFCMR 1982) the accused had assaulted an individual with a deadly weapon. The accused provided the defense that he was intoxicated when he committed the assault. The court said that the accused had an intent to assault with a deadly weapon, notwithstanding the fact that he may have been intoxicated at the time of committing the crime. So, the court found him guilty.

In U.S Vs Flynn (AFCMR 1982), the accused had assaulted a person who was executing a duty as a military law enforcement officer. In that case, the court said that the accused could not be held guilty of assaulting such a person, if he did not know that the person was executing the duty.

In U.S Vs Marbury, the accused had stabbed the victim in the chest. The court said that it amounted to inflicting severe bodily harm and such cases could attract the charge of aggravated assault. However, in that case, the court said the specific intent was unclear from the accused's and victim's testimony, so the charge of aggravated assault could not be sustained.

In U.S Rivera (CAAF 2001) the accused, a parent, had punched a child with a closed fist. The court said that since the accused had used a closed fist to punch the child, the defense of parental discipline was overcome.

In U.S Vs Curry (CMA 1993), the court said that an accident (mens rea, 'guilty mind' absent), is admissible as a defense in assault cases (specific intent included).

U.S Vs Robertson (CMA 1992), the court said parental discipline is an affirmative defense (charge is assault of a child), if the parent or the guardian has used force, to promote or safeguard the welfare of the child, including punishing or preventing misconduct.

In U.S Vs Arab, the accused had inflicted injuries on his wife during the course of sadomasochistic activities. If an assault is likely to lead to death or cause severe bodily injuries, the accused cannot provide the defense that the victim had given consent to the activity. The court held the service member guilty.

In U.S Vs Sever (CMA 1194), kissing was deemed sufficient cause to constitute assault and battery. In U.S Vs Gholston (ACMR 1983), the accused had assaulted a sentinel, but the sentinel was not standing at his post or performing a duty, but was going to work. The accused was acquitted of the charge of assaulting a sentinel.

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