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 - Kidnapping

Paragraph 92 of the Manual for Court Martial deals with the charge of kidnapping. All neglects and disorders which are adverse to the discipline and order found in the armed forces and all conduct which can bring discredit to the armed forces or any offenses and crimes which are not capital, can be punished by convening a court martial.

Elements of the offense

  1. The accused confined, seized, decoyed, carried away or inveigled a certain individual.
  2. The individual was then held against his will, by the accused.
  3. The accused committed the act wrongfully and willfully.
  4. In these circumstances, the accused's conduct was adverse to the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.

Explanation for elements

Decoy, inveigh: Decoy is defined as to lure or entice an individual by using a trick, fraud or a temptation. For example, a person who has lured a child and kidnapped him by using candy, is said to have decoyed the child.

Inveigh means to entice, lure, or lead astray by making a false representation or any other deceitful method. For example, a person who lures an individual by promising to take him to a destination, would have inveighed the individual into his car.

Wrongfully: Here, wrongfully is defined as without excuse or justification. Note that if a parent or guardian seizes and holds his or her child, it is not a wrongful act and so it is not kidnapping.

Maximum punishment for the offense

The accused can be punished with a dishonorable discharge, forfeiture of allowances and pay and life imprisonment without parole.

Example for how an individual can be charged with this offense

If you are asked to imagine a kidnapper, the first thought that will probably come to your mind is that of a person who gags and binds his victims and then locks him in a room but the UCMJ thinks differently. A service member could be prosecuted for kidnapping for just preventing a person from leaving a room. Here is an example.

This case involved a private from the Navy-Marine Corps. The private had an argument with his girlfriend in a hotel room. When the woman attempted to leave the room, the private blocked her, by standing against the door and putting his hands on the doorknob. The woman tried to leave through another door but it was locked. When she tried to leave through the main door again, the private caught her, threw her on the bed and held her down. She was able to finally leave when the hotel manager arrived. In the interval (2 minutes) between the woman trying to leave and the hotel manager arriving, the private had prevented her from leaving, 4 times. This means, no matter what the duration, if a service member holds a person against his will, he could be punished for kidnapping.

Here is another case of an attempt to kidnap. A service member attempted to sexual assault a woman who had driven him home. He took her at knife point to a wooded area. The woman tried to escape from his clutches but was caught. He then proceeded to beat her. Luckily, she was able to escape the 2 nd time and was able to flag down a passing car.

The soldier was arrested and charged with attempt to kidnap. The defense argued that there was not any evidence which could show that the soldier would have held her long enough to perpetuate the crime. The court said that it was irrelevant what he would have done, had he removed the woman. The point was he had willfully and knowingly transported the woman, when she had made it clear that she did not want to go with him.

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