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 97 Unlawful Detention

Article 97 deals with cases where the individual has arrested and/ or confined another despite not having legal grounds to do so. The accused is punished as deemed fit through a court martial process if he is found guilty of violating this article. The objective of Article 97 is to prevent abuse of power within the armed forces.

An important point to note here is that the accused may have the authority to arrest or confine the person but he is still in violation of this article if he does so without having valid legal grounds to do so. Here, 'apprehension' means placing restrictions on the freedom of another, 'arrest' means imposing moral restrictions on another via verbal or written orders and directing him to stay within a specific physical boundary and 'confinement' means physically restraining a person under watch or in a cell or any similar facility designed for this purpose. To learn more about this punitive article refer to the Manual for Courts Martial.

The elements to be proved by a military prosecutor in Article 97 trials are as follows:

  • That a certain person was apprehended, arrested or confined by the accused.
  • That the accused made unlawful use of his authority to apprehend, arrest, or confine the person.
  • If there is a possibility that the accused may have reasonably believed that detention was justified, it is up to the prosecutor to prove that the accused did not have grounds for such belief.

What is the Maximum Punishment under Article 97?

A person accused of violating article 97 faces maximum punishment of dishonorable discharge, forfeiture of all pay and allowances and three years confinement.

Points to Note about Article 97

  • The article does not cover private acts where a person has falsely imprisoned another.
  • It does not cover unlawful restraint of a person's freedom by a person who does not have the authority to apprehend, arrest or confine the former.
  • Evidence of use of force to apprehend, arrest or confine the person need not be provided by the prosecution. However, it must be proven that this happened against the will of the confined or restrained individual.
  • In defense, the accused can show that he had reasonable belief that his act of apprehending, arresting or confining another was lawful.
  • It is necessary for the prosecution to establish that the accused restricted another person's freedom of movement even though physical force was not employed.
  • The determination of guilt or innocence becomes necessary when there is factual dispute about the lawfulness of the arrest/ apprehension/ confinement.

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