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.


This article deals with dueling incidents where an enlisted member is suspected to have fought the duel or has been involved in it in any way, including failure to report the duel. An officer who has encouraged the fighting of a duel or has connived at a duel is also charged with violating Article 114. A court martial process determines the punishment to be meted out to the accused.

There are four sections under Article 114 and they deal with the following situations:

a) Dueling


  • That at a specific time and place, a duel was fought by the accused with a specific person using specific deadly weapons.
  • That the fight arose from personal reasons and was not wartime activity.
  • That the fight took place by prior agreement between the parties involved.

Note: The words 'deadly weapons' refer to any weapons that can be used to produce grievous bodily harm or death. It is not necessary to prove that such harm or fatality actually occurred during the duel.

b) Promotion of a duel


  • That at a specific time and place, the accused was responsible for promoting a duel between two specified persons.
  • That this was done in a specified manner.

Note: The accused has 'promoted' the duel if he has actively contributed to the fighting of the duel or carried out an act to further the fight.

c) Conniving to fight a duel


  • That at a specific time and place, two specified persons had the intention to fight a duel and they were about to do so.
  • That the accused was fully aware of this intention to fight the duel.
  • That at a specified time and place, the accused connived at this fight in a specified manner.

Note: If the accused knows that a duel is being planned and he fails to bring this to the notice of his superiors or other authorized officials, he has violated this section of Article 114. Circumstantial evidence can be produced to prove that the accused had knowledge of this proposed duel.

d) Failure to report the duel


  • That a challenge for a duel either had been sent or was to be sent from and to specified persons.
  • That the accused was fully aware that the challenge had been sent or was about to be sent.
  • That at a specified time and place, the accused had failed to bring this to the notice of the right authorities promptly.

Note: A challenge could be a summons, a request or an invite to fight the duel. Generally, circumstantial evidence can be used to prove that the accused was aware of the challenge having been sent or about to be sent.


The accused faces dishonorable discharge, forfeiture of all pay and allowances and one year confinement as maximum punishment for violating any section of Article 114.


Dueling is a classic example of an offense where Wharton's Law applies. This rule applies to those violations where the concerted criminal activity, i.e.: involving more than one person, occurs. According to this rule, the accused cannot be charged with conspiracy if the offense (i.e.: dueling) can only be committed by a minimum of two persons. In a duel, the offense cannot be committed unless two parties are involved which is why these two parties are not treated as co-conspirators, according to Wharton's rule. However, if another person is also involved in the crime and his participation enlarges the agreement to commit the offense then all three may be charged with conspiracy. For more information on this article, please refer to the Manual for Courts Martial.


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Joseph L. Jordan travels around the globe to represent service members in military criminal defense matters.

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