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.

Article 102 Forcing a Safeguard

Article 102 covers incidents where a safeguard is forced. The safeguard represents a commitment from the country that the person/ property protected by it will be respected by all members of the nation's armed forces. 'Forcing a safeguard' does not always mean that the accused has gone against the orders of a protection detail or a guard that has been posted to protect a person or property.

There are several situations where this Article may apply. The elements to be proven in these trials are as follows:

  • That a specific place, person or property has been protected by the issuance of a safeguard.
  • That the accused was aware of or should have been aware of this safeguard.
  • That at a specific time and place, the safeguard was forced by the accused in a specific manner.

Maximum Punishment for Article 102 Violation

An accused who is proved to be guilty of violating Article 102 faces maximum punishment of death or other lawful punishment as decided through a court martial process.

Explanation of Article 102

The word 'safeguard' may refer to many things as follows:

a) It could refer to a guard, detail, detachment assigned by a commander to protect property, a person or a place belonging to the enemy.
b) It could refer to a guard, detail, detachment assigned by a commander to protect the person, property or place of a neutral party who is affected by the warfare or by wartime activities that precede actual battle.
c) It could refer to a written order from a commander, that is left with the enemy or posted on the property of the enemy with the objective of protecting the person or property.
d) The safeguard must originate from a person with authority in the United States armed forces. Any order or guard detail posted by the enemy forces to protect their own property does not constitute a safeguard under this Article. Forcing the enemy guards or protection does not result in violation of Article 102.
e) The term 'forcing a safeguard' means that the accused has committed an act that violates the safeguard's protection.
f) The accused is deemed to have violated the safeguard if he has trespassed on the safeguard's protection irrespective of whether the safeguard was posted during warfare or in times leading to war.

For more information on this article, please refer to the Manual for Courts Martial

Points to Note about Article 102

  • Circumstantial evidence to establish knowledge may be permitted during trial.
  • While proof of knowledge is not required, it is necessary for the prosecution to show that the accused should have had knowledge of the safeguard's existence.

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