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 - Threat Communicating

If a service member threatens to injure another service member, his property or reputation and communicates it to the person himself or to another person, then he has committed an offense and he can be punished according to the traditions of the military.

The offense is covered under Article 134. Communicating a threat is not explicitly mentioned as an offense in Article 134, but indirect references are made to such offenses. For instance, the text of statute in Article 134 says that all neglects and disorders which are adverse to the discipline and good order in the armed forces, all conduct which can bring discredit to the armed forces, all offenses and crimes not of a capital nature, can be punished by convening a court martial. Communicating a threat is one such offense covered under Article 134.

Elements of the offense

  • The accused had communicated an intent or his present determination to cause injury to another person, his property or reputation, in the present or future.
  • The accused made the communication known to the person or to another person.
  • The accused made a wrongful communication.
  • In these circumstances, the accused's conduct was against the discipline and good order in the armed forces or the nature of the conduct brought discredit to the armed forces.

Explanation for Threat Communicating Elements

To establish that the accused has threatened a service member, it is not necessary to show that the accused actually intended to carry out his action (to injure).

However, if the accused had made the declaration in jest, in innocence or for a legitimate purpose, or if the declaration contradicts the intent expressed by the accused, then it is not an offense.

No offense is committed if only a mere statement to commit an unlawful act was communicated, which did not mention injury to the other person.

Maximum punishment for the offense

If the service member is held guilty of communicating a threat, then he can be punished with a dishonorable discharge, forfeiture of allowances and pay and 3 years of confinement.

Can communicating a threat an offense if the threat is based on an impossible variable?

A service member cannot be charged with the offense of communicating a threat, if the execution of the threat was based on an impossible variable. So what is an impossible variable?

Let us refer to the case of US Vs Shropshire. In that case, the accused, who was handcuffed at the time, told his guard, 'if you remove this handcuff, I will show you what I can do.' A contingent threat is considered a threat only if there is a chance that the contingency could occur. The contingency here is the removing of the handcuffs by the guard.

However, a reasonable guard would not have removed the handcuffs, so there was no chance that the threat could have been fulfilled. Since the contingency could not be fulfilled, the threat was negated and the accused cannot be charged with communicating a threat. However, the accused can be charged with using disrespecting language towards a guard or NCO.

The court noted that the accused would have committed the offense of communicating a threat, if he had said, 'When these cuffs are taken off me, you will see what I will do to you'. There was a reasonable chance that this contingency could be fulfilled. Here is another case.

A service member of the U.S Air Force tells another service member, 'if we were in the civilian world, I would have taken my gun and shot you between your eyes.' The accused was in active duty and so he cannot be taken as a civilian. So there is no reasonable chance of fulfilling this statement. The service member has not communicated a threat. But he can be charged with using provocative words.

Is it always wrong to communicate a threat?

It is possible that an accused has communicated a threat for a legitimate purpose, for instance threatening a service member that he will be reported to the media for maltreatment, or when the threat was made in self-defense. In these cases, the accused will be allowed to use it as a special or affirmative defense.

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