"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 134 - Child Endangerment

Service members who endanger the safety, welfare and/or the physical and mental health of a child aged 16 years or below, who they had a duty to take care of, through design or a culpably negligent act such that the said child suffers grievous bodily harm, or harm are violating the Article 134. Under this article, persons committing this offense shall be punished as directed by the court martial.

Note that to endanger means to expose an individual to a reasonable probability of harm and to do something by design means to something on purpose, or intentionally.

For declaring the accused as guilty, the following elements are to be proven.

  • The accused actually had a "duty to care" for the child, the alleged victim
  • The alleged victim was aged less than 16 years
  • The accused had endangered the safety, welfare and physical and mental health of the child by design, or by a culpably negligent act
  • The actions of the accused had resulted in harm or serious bodily harm to the child
  • The conduct of the accused, under the given circumstances, was meant to bring into disrepute the armed forces or was to disturb the good order and discipline in a community of the armed forces

Situations when accused can get punishment

A person accused of endangering the health, safety and welfare of the child shall be punishable only if he had a "duty of care" towards the alleged victim. Duty of care can be established by a legal parent-child relationship, regulation, statute, assumption of custody or control of the child through an affirmative act, or by mutual agreement and it is determined by taking into account the totality of the situation. So if the accused does not have a duty to care for the child, there is no offense under this article.

For instance, if a stranger, like a neighbor who is not charged with the duty of care, does not offer food to a starving or hungry child or does not stop him from running around and playing in the street, it is not an offense.

To be guilty of the offense, the accused should have committed culpably negligent acts that are more than just simple acts of negligence. Under this article, culpable negligence constitutes of conduct with a serious disregard for the foreseeable harm, based on human experience, that the acts of the accused may cause to the child. The age and the maturity levels of the child, the environment, the conditions of place and its surroundings, and proximity of available assistance from where the child has been left are also taken into consideration for determining culpable negligence.

For instance, leaving a teenager unattended at home for an evening may not be culpable or even simple negligence. But leaving a toddler or infant unattended for the alleged period is considered as culpable negligence.

Note - It is important to note that actual harm to the child, physical or mental, is not required to charge a person under this article. It is considered as child endangerment even if the actions of the accused could have resulted in physical or mental suffering or harm to the child.

Maximum punishment

The accused person will be subject to a maximum punishment of no more than 8 years for intentionally causing serious bodily harm to the child, and no more than 5 years if offense results in harm. Grievous bodily harm caused to the child, due to culpable negligence on part of the accused shall attract maximum confinement of 3 years, while harm caused due to culpable negligence attracts no more than 2 years of confinement.

Again, it is essential to note that it is an offense under the punitive Article 134 only if the accused had violated the duty of care.

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