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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 90: Assaulting or Willfully Disobeying Superior Commissioned Officer

Subordinates are bound by duty to respect the orders of their seniors, maintain decorum and refrain from threatening or performing acts of violence against them. Failing this, they can face punitive action under Article 90 when declared guilty. A service member will be subject to Article 90 if he/she (a) *strikes his/her superior commissioned officer, or **lifts/draws up any weapon, or ***offers any violence against him while he is ****in the execution of office or (b) *****willfully disobeys a lawful command of his/her superior commissioned officer.

* an intentional blow directed at the officer, including offensively touching the officer

** raising a harm-inflicting weapon aggressively at or in the presence of a superior commissioned officer

*** offering violence is a physical attempt or offer to inflict bodily harm; threatening violence through words is not covered under this definition

**** an officer is said to be in the execution of office when he is engaging in any service or act authorized or required by regulation, statute or treaty, or the order of a superior.

***** willful disobedience means intentionally defying authority

"Superior commissioned officer" includes

  • the accused's commanding officer, even if he holds a rank inferior to the accused
  • any commissioned officer belonging to the accused's armed force, who is superior in rank but not inferior in command to the accused
  • any commissioned officer of another armed force placed in a supervisory position over the accused or properly placed in the chain of command

Elements pertaining to Article 90

Assaulting a superior commissioned officer:

1. The accused drew, lifted up or struck a weapon against or offered violence against a commissioned officer

2. The officer was the accused service member's superior commissioned officer

3. The accused was aware that the officer is his/her superior commissioned officer

4. The superior commissioned officer was executing the duties of office

Disobeying a superior commissioned officer:

1. The accused received a lawful command from the commissioned officer

2. The officer was the accused service member's superior commissioned officer

3. The accused was aware that the officer is his/her superior commissioned office

4. The accused willfully disobeyed the officer's lawful command

Article 90 defenses

The accused can use the following defenses to lessen the extent of charges or remove them completely.

  1. Knowledge: The accused did not know that the victim is a superior commissioned officer
  2. The victim behaved in a manner towards the accused so as to lose the protection of this article. An example would be the victim initiating an unlawful attack on the accused.
  3. Divestiture of status: If the evidence raises an issue of whether or not the victim conducted himself in a manner that took away his status as a superior commissioned officer acting in the execution of office, it must be probed. To prove the accused not guilty, you must be satisfied beyond a reasonable doubt that the language and actions of the victim departed considerably from the required standards appropriate to his rank and position, and amounted to an abandonment of his status.
  4. Illegal order: The accused cannot be convicted under this article if the order was illegal. The order must relate to military duty and one that the commissioned officer is authorized to give the accused. Disobeying an order whose sole intention is to attain a private end or increase the penalty for an offense which the accused is expected to commit, is not punishable under Article 90.

Important notes

  1. The order must be directed personally to the subordinate
  2. Non-performance of a mere routine duty is not a violation under Article 90, but could be one under Article 92 or Article 134.
  3. It is not a defense to state that the obedience of a command involves a violation of the accused's religious scruples.

When convicted under Article 90, service members cannot receive more than a maximum punishment of total forfeiture, dishonorable discharge and confinement for 10 years for striking, lifting up or drawing a weapon, or offering violence to a superior commissioned officer in the execution of officer, and confinement for 5 years for willfully disobeying the lawful order of a superior commissioned officer. For more information about this punitive article, refer to the Manual for Courts Martial.

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