"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 89 Disrespect toward a Superior Commissioned Officer

Article 89 deals with servicemen who have shown disrespectful behavior toward their superior officers. The accused is punished as deemed right through a court martial process. The elements under Article 89 that must be proved by the prosecution are:

  • That the accused committed an act(s) or used certain words to or about a commissioned officer.
  • That the words or behavior were directed towards that commissioned officer.
  • That the person who was the subject of the words or behavior was a superior commissioned office to the accused.
  • That the accused was aware of the commissioned officer's superiority when he used such disrespectful language/ behavior.
  • That the behavior or language indicated disrespect to the superior officer under the circumstances prevailing at that time.

What is the Maximum Punishment Granted under Article 89?

A serviceman charged with article 89 violation faces bad conduct discharge, forfeiture of all allowances and pay and one year confinement as maximum punishment. To learn more about this punitive article refer to the Manual for Courts Martial.

Explanation of Article 89

When a servicemen fails to give his superior the respect that is due to his authority and person, he exhibit disrespectful behavior as per Article 89. This disrespect may be in the form of an action or in language. The accused violates article 89 irrespective of whether he has been disrespectful to the commissioned officer as a private individual or in his capacity as a superior officer.

Two Situations where Article 89 Violations may Occur

a) When the accused and the superior officer are in the same armed force: In such case, the term 'superior officer' refers to the commanding officer or any commissioned officer of the same armed force who carries superior rank and is not inferior in command to the accused.

b) When the accused and the superior officer are in different armed forces: The term 'superior officer' here refers to a commissioned officer of the other armed force who is in a superior position in the chain of command when compared to the accused.

Points to Note about Article 89

  • Abusive or derogatory words and denunciatory language are considered as disrespectful behavior.
  • Failure to salute, showing disdain, insolence, indifference, rudeness, impertinence and undue familiarity also constitute disrespectful behavior to the superior.
  • The accused violates the article even if the words he has used are true and correct.
  • The superior officer need not be in this office or position when the disrespectful behavior is carried out.
  • The accused may say in his defense that he was unaware that the other was a superior officer. However, circumstantial evidence is admissible to prove knowledge of this fact.
  • A serviceman shall be charged under this article even if he used disrespectful language or carried out such actions when the superior was not present. However, generally, words used or acts done in private conversations are not used to bring about charges against the serviceman.

Special Defense

If the superior officer's conduct with the accused is not in line with accepted standards, then the latter may not be charged under Article 89 even if he has exhibited disrespect for the superior. It is deemed that the superior has lost his entitlement to respectful behavior owing to his own undesirable conduct.

Example of Article 89 Incidence

In the United States v. Sorrells, 49 C.M.R. 44 (A.C.M.R. 1974) trial, it was deemed that the accused was not violating this article when he used profanities loudly in the presence of his superior officer because these were not directed toward the latter but toward others in the room.

In the United States v. Ferenczi, 27 C.M.R. 77 (C.M.A. 1958) trial, the accused subordinate officer was found guilty of violating Article 89 by his act of contemptuously turning and walking away from his superior officer while the latter was still talking to him.

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