"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 Soliciting Another to Commit an Offense

Service members who solicit another to commit an offense are in violation of Article 134 of the Uniform Code of Military Justice. The elements of this chapter are as follows:

  • The accused wrongfully solicited or advised another to commit a criminal offense
  • The accused intended for the person to commit the offense solicited or advised
  • The accused's conduct was prejudicial to good order and discipline or brought discredit to the armed forces

What does solicitation include? Solicitation is a serious recommendation, request or inducement to another to commit a criminal offense. It includes influencing, inciting, counseling, tempting, commanding or urging the person. However, statements made in jest do not constitute solicitation. The accused, in this case, would not have a specific intent that the offense be committed.

Points to note

  1. It is not necessary to prove that the solicited offense actually occurred. What must be proved beyond a reasonable doubt is the accused's specific intention to solicit the person into committing every element of the offense.
  2. It must be proven that the accused's conduct adversely impacted the good order and discipline of the armed forces. Alternately, it must be proven that the accused's conduct was service discrediting, which means that it adversely impacted the reputation of the armed forces in the public's eye.
  3. The person advised by the accused must know that the act is part of a criminal venture.
  4. If mental illness is cited as a defense, evidence negating Mens Rea is applicable. The defense may also present evidence of voluntary intoxication. While voluntary intoxication is not a legal excuse for the commission of the wrongful act, it may negate the existence of the intent as the accused may have been grossly intoxicated at the time of commission of the act.
  5. If the accused allegedly solicited the person to commit voluntary manslaughter or murder, the specific intent required must be to kill; an intent to inflict great bodily harm will not suffice.

Maximum Punishment

The maximum punishment for espionage includes Dishonorable Discharge, total forfeiture and life imprisonment without parole. For other offenses, the maximum punishment for the solicited offense is applicable. Here, death is not an authorized punishment and confinement is limited to five years.

Example: United States Versus Konal J. Dobson

The case: A special court-martial trial of Seaman Apprentice (E-2) Konal J. Dobson of the U.S Coast Guard, accused of soliciting a friend to call a watch stander at his Coast Guard Unit in Ocean City, MD to report a false flare sighting off Ocean City.

Dobson and his friend were in Pennsylvania at the time and aware that the sighting was false. They were found to have violated 14 U.S.C. § 88(c) (2003) and Article 134.

Appellant Dobson contended that his guilty plea and finding of guilt should be set aside as improvident (not foreseeing/wise) for three reasons:

  • He knew the call violated a federal statute but his friend was not aware of the same. Hence the solicited person in this case did not know that the requested act was part of a criminal venture. The military judge deemed that the act of making a distress call was not innocent on its face. His friend had to know that falsely reporting an emergency to the Coast Guard was wrong, and therefore it cannot be reasonably believed that the friend thought the act was innocent.
  1. The appellant said that the call was meant as a joke on the watch stander and Coast Guard. The judge asked him about what he believed the watch stander would do in response to the call. The appellant's answer (alerting the OOD and launching a search team), which matched the actual response taken by the watch stander, satisfied the element of knowledge of probable or natural consequences. Appellant argued that his friend did not have this knowledge. In an earlier explanation to his friend, the appellant had told him of his duties in the Coast Guard and how he had qualified as a watch stander. The judge deemed that it was not unreasonable to assume that the friend, equipped with this understanding, had knowledge of the natural or probable consequences of the false call he was requested to make.
  • Appellant argued that the element requiring his conduct to be discrediting to the armed forces or prejudicial to good order and discipline was factually deficient. The judge disagreed, given that the call was made in a tattoo parlor where the appellant and his friend were present with some of their other friends, who could hear everything being discussed.

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