"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 80 Attempts

Here is a brief overview of Article 80 Attempts. A person subject to Article 80: (a) must have performed an act with specific intent to commit an offense under this chapter; the act must amount to more than *mere preparation and tending even though he/she fails to effect its commission (b) shall be punished as per the verdict of a court-martial unless otherwise specifically prescribed (c) shall be convicted of an attempt to commit an offense even though it appears on the trial that the offense was accomplished.

*Mere preparation refers to planning or arranging the measures or means necessary to commit the offense.

The elements of the crime that must be proven under Article 78 of UCMJ are as follows:

  1. The accused performed a certain overt act as alleged or brought forth by the evidence at the alleged time and place.
  2. The act was performed with the specific intent to commit the alleged attempted offense under

the code

  1. The act amounted to a substantial step and a direct movement towards committing the intended offense
  2. The act would have caused the actual commission of the alleged attempted offense except for circumstances that prevented that offense from being completed

An explanation of conditions under which the accused can be found guilty of Article 80

To be found guilty of a violation of Article 80, the court should find beyond a reasonable doubt that the accused took substantial steps that corroborate his/her criminal intent and determination to commit the offense. Failure to complete the offense is not a defense. Proof that the offense actually occurred is also not required. The intention to carry out every element of the offense must be proved beyond a reasonable doubt.

A criminal attempt is an intent to perform an act or bring about a result that would constitute a crime, together with some substantial steps taken in furtherance of the intent. The state of mind or mens rea required is the actual purpose or intent to achieve the result. An attempt implies that the individual was trying to achieve the forbidden result.

Mere preparation refers to preliminary activities that are not punishable even when accompanied by the requisite intent. For instance, the defendant announces his desire to blow up a laboratory at the installation and collects dynamite and other supplies necessary to accomplishing the task. He then places all the material inside the laboratory and lights the fuse. At what point in the sequence of events has the defendant committed a punishable attempt? The elements the court considers to arrive at a result are: commission of the last necessary act, commission of act proximate to the result or commission of an act that unequivocally confirms the defendant's intent. Based on the court's analysis of the case, the results can be widely divergent.

Factual impossibility is another element governing Article 80. If there exists evidence indicating that it was impossible for the accused to commit the offense for reasons unknown to him/her, the individual shall be still held guilty. For instance, if the accused, with an intent to kill the victim, points his gun at the victim and pulls the trigger, he is guilty of attempt to murder even if the gun is defective and will not fire, a fact that is unknown to A.

There can be lesser included offenses to an attempt. A lesser included offense is a crime for which all elements necessary to imposing liability are also elements that are part of more serious crimes. For instance, a lesser included offense of robbery is assault, and a lesser included offense of kidnapping is false imprisonment.

Maximum punishment under Article 80

When declared guilty of violating UCMJ Article 80, the individual will be subject to the same maximum punishment sanctioned for the commission of the attempted offense. Death penalty cannot be a verdict under any circumstance. With the exception of attempted murder, in no other case can confinement exceed 20 years.

Going beyond mere preparation: Two examples of Article 80

Consider two examples where the extent of steps taken by the accused was integral to deciding the outcome of the case. In United States v. Sampson, 7 MJ 513 (ACMR 1979), the defendant was found to have broken in and entered the victim's quarters. The victim, a female who was in the nude, was approached by the defendant. The defendant's act of reaching towards the victim's shoulder and neck was deemed sufficient to be adjudged as attempted rape.

In U.S. v. St. Fort, 26 MJ 764 (ACMR 1988), a husband came home one night to discover his wife wearing just a bathrobe and the appellant hiding naked in a closet. The appellant then proceeded to run away. The appellant was held guilty of attempted adultery as the court felt that he had taken substantial steps beyond mere preparation to engage in sexual intercourse with a woman not his wife.

Such is the nature and complexity of military law that experienced UCMJ attorneys will exhaustively examine all the elements of the alleged crime to prepare a strong defense. For further information on Article 80, refer to the Manual for Courts Martial.

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