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 134 - Unlawful Entry

Any service member who unlawfully enters the real property of another person, or the personal property of that person, (a structure used for storage or as a habitation), can be charged with a violation of Article 134 (paragraph 111) of the UCMJ. The accused can be punished by convening a court martial.

Article 134 does not mention unlawful entry, though there are indirect references, which also extend to all the other offenses covered under Article 134. The text of statute in Article 134 says that all neglects and disorders against the discipline and good order in the armed forces, all conduct which can bring discredit to the armed forces, and all offenses and crimes not capital, can be punished through a court martial.

Elements of the offense

  • The accused had entered the real property or the personal property of another person. Personal property refers to a structure which is usually used for storage and habitation.
  • The accused's entry into the property was unlawful.
  • In these circumstances, the accused's conduct was against the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.

Explanation for the offense

Entering a property becomes unlawful, if the accused enters the property without receiving the consent of a person authorized to give consent or without authorization from other lawful authority. It is not necessary to show that the accused had broken into the property or had any such intent, to prove this offense.

But there must be an entry before the offense can be effected. The entry of any body part, even a finger is sufficient. If the accused has inserted a tool or any instrument into the property, even that can be taken as entry, unless the tool or the instrument was inserted into the property to facilitate entry or break in.

Both real property and personal property, i.e. a structure normally used for storage or habitation, are included in property which come under the ambit of unlawful entry.

Unlawful entry is different from burglary and house breaking. Burglary and house breaking both have criminal intent, which is lacking in unlawful entry. So a service member who unlawfully enters a barracks with the intention of finding a place to sleep for the night, is guilty of unlawful entry and not burglary or house breaking. Another main difference is the jail time. An accused who is held guilty of burglary, housebreaking or unlawful entry can be jailed for 10 years, 5 years and 6 months, respectively.

Maximum punishment for this offense

If a service member is found guilty of unlawful entry at a court martial, he can be punished with a bad conduct discharge, forfeiture of allowances and pay and 6 months of confinement.

What could constitute an unlawful entry and what does not:

  • In U.S Vs Wickersham (CMA 1983) the court said that a fenced-in storage area could be taken as property subject to unlawful entry.
  • In U.S Vs Sutton, (CMA 1972) the court said that a vehicle being tracked is not subject to the offense of unlawful entry.
  • In U.S Vs Breen (CMA 1966), the court said that unlawful entry does not include entry into the personal locker of another person.
  • In U.S Vs Taylor (CMA 1960) the court said that an aircraft which is being used to transport troops cannot be subject to unlawful entry.
  • In U.S Vs Gillin (CMA 1958) the court said that automobiles are not covered under unlawful entry.
  • In U.S vs Cantu (AFCMR 1982), the court found the accused guilty of unlawful entry, even when he was serving as a security policeman on duty.

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