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 95 Resistance, Flight, Breach of Arrest, and Escape

Article 95 covers cases where an individual has resisted arrest or escaped from confinement. Several situations are covered under this article: Resisting apprehension, Fleeing apprehension, breaking arrest, escape from custody, escape from pre-trial and post- trial confinement. The core components of this article are:

a) Resisting apprehension

Elements:

  • That an authorized individual tried to apprehend the accused.
  • That the accused resisted arrest in a specific manner.
  • If there is any question that the accused was not aware of the apprehender's authority to arrest him, the prosecution has to prove that he had sufficient reason to know of the apprehender's empowerment.

Maximum Punishment: Bad conduct discharge, forfeiture of all allowances and pay and 1 year's confinement

b) Fleeing apprehension

Elements:

  • That an authorized person tried to apprehend the accused at a specific time and place.
  • That, in a specific manner, the accused avoided arrest by fleeing from the apprehender.
  • If there is doubt that the accused did not know of the apprehender's authority to arrest him, the prosecution has to prove that the accused knew that the latter has the power to arrest him.

Maximum Punishment: Bad conduct discharge, forfeiture of all a pay and allowances and one year confinement.

c) Breaking arrest

Elements:

  • That the accused was arrested and confined to quarters in a specific company area by a specific individual who had the authority to do so.
  • That the accused went beyond his confined quarters before he had received clearance to do so.
  • If there is any question about the accused individual's knowledge of his arrest, the prosecution has to prove that he was aware of the arrest and of the limits placed on his movements as a result.

Maximum Punishment: Bad conduct discharge, forfeiture of all pay and allowances, 6 months confinement

d) Escape from custody

Elements:

  • That a specific authorized person apprehended the accused.
  • That before he was released from custody by the right authority, the accused freed himself.
  • In cases where there is doubt regarding the accused individual's acceptance of the apprehender's authority, the prosecution has to prove that the former had sufficient reason to believe that the apprehender was empowered to do so.

Note: Escape from confinement is not the same as escape from custody. The difference in these offenses lies in the manner in which the lawful restraint was imposed.

Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 1 year confinement

e) Escape from pre-trial and post- trial confinement

Elements:

  • That the accused was ordered to be placed in confinement by an authorized person.
  • That the accused was aware of such confinement.
  • That before he was released under the right authority, the accused freed himself from the confinement.
  • For post-trial confinements, the prosecution has to establish that the confinement came about as a result of a court martial.

Maximum Punishment: For escape from pre-trial confinement, the accused faces maximum punishment of dishonorable discharge, forfeiture of all allowances and pay and 1 year confinement. For escape from post- trial confinement, the maximum punishment is dishonorable discharge, forfeiture of all allowances and pay and 5 years confinement.

To learn more about this punitive article refer to the Manual for Courts Martial.

Example of Article 95 Incidence

In the United States v. Webb, 37 M.J. 540 (A.C.M.R. 1993) trial, it was concluded that the accused had resisted apprehension when he stopped fleeing, turned to face the apprehender, prepared to fight and then resumed flight.

In the United States v. Rhodes, 47 M.J. 790 trial the accused was not deemed guilty under Article 95 although he had resisted arrest by civilian law enforcement officials. Since these officials did not have military affiliation, they were not considered empowered authorities under this article.

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