Since approximately 2019, military prosecutions are moving to organizing around topic, rather than merely assigning cases by military units. With the advent of the general crimes teams in prosecution offices, there has been a sharp increase in the number of assault cases being handled in military courts-martial.
Assault Consummated by a Battery AND Domestic Violence
Because of increased congressional oversight, the military has begun to handle allegations of physical abuse and domestic violence at the trial level, rather than handling such matters through nonjudicial punishment (Article 15 / Captains Mast). As a result, the mere allegation of any physical abuse can result in servicemembers being charged with what is known as AssaultConsummated by a Battery in violation of Article 128. Depending on who is the alleged victim of any assault, the case may be charged under the relatively new offense of Domestic Violence in violation of Article 128b, UCMJ.
When most people hear the word “assault,” they think of a beating with punches and violence. This is not an assault; this is what’s called a Battery or what the military calls an Assault Consummated by a Battery. Legally speaking, an assault (or sometimes what is called a “simple assault) is putting another person in a reasonable apprehension of an imminent harmful or offensive contact, physical injury is not required. Put another way, simply raising your fist and acting like you are about to punch someone, making the person flinch, is an assault. If you then actually hit the person, then you have committed both an assault and a battery. The assault is putting that person in immediate fear of being physically harmed, and the battery is the actual act of causing the physical harm. When the military charges acts of physical violence, it is typically under Article 128, UCMJ – Simple Assault or Assault Consummated by a Battery.
The assault and battery does not have to be a sucker punch to the face. The law considers an assault and battery to be any unwanted (and thereby offensive) touching however slight or an offer to make that unwanted touching. What is an offer? Like the example above, by raising your fist and making the person flinch, you have offered to do harm. In this situation the military might charge Simple Assault.
To be guilty of Simple Assault under Article 128, UCMJ, the prosecutor must prove:
MAXIMUM PUNISHMENT FOR SIMPLE ASSAULT
If found guilty of Simple Assault, the maximum punishment is two-thirds Forfeitures of pay and allowances, Reduction to E-1, and 3 months in confinement.
ASSAULT CONSUMMATED BY A BATTERY
To be guilty of Assault Consummated by a Battery under Article 128, UCMJ, the prosecutor must prove three elements:
MAXIMUM PUNISHMENT FOR ASSAULT CONSUMMATED BY A BATTERY
The maximum punishment for Assault Consummated by a Battery is a Bad Conduct Discharge, Total Forfeitures of all pay and allowances, Reduction to E-1, and 6 months in confinement.
MAXIMUM PUNISHMENT FOR BATTERY ON A SPOUSE, INTIMATE PARTNER, OR IMMEDIATE FAMILY MEMBER
This maximum punishment is increased if the alleged victim is a spouse, intimate partner (like a boyfriend or girlfriend), an immediate family member, or a child under the age of 16. If the alleged victim falls under one of these categories, then the maximum punishments could be a Dishonorable Discharge, Total Forfeitures, Reduction to E-1, and 2 years confinement. These are most commonly charged in cases of domestic violence allegations.
Recently congress allowed for the creation of a new UCMJ article specifically for Domestic Violence, Article 128b, UCMJ. This new Article of the UCMJ encompasses many acts, and the offense carries stiffer punishments and life–long consequences if found guilty.
Under this new UCMJ Article, a person can be found guilty of Domestic Violence if they commit any of the below acts against a spouse, intimate partner, or immediate family member:
Any violent offense;
An offense with the intent to threaten or intimidate;
Violate a protection order with the intent to threaten or intimidate;
Violate a protection order with the intent to commit a violent offense; or
Commit an Assault by Strangulation or Suffocation
What is most interesting about this, is that new acts can now be considered Domestic Violence and carry with it the stiff penalties associated with a Domestic Violence conviction. For example, it has long been a crime to threaten someone, in violation of Article 115, UCMJ – Communicating a Threat. If a husband threatened his wife, he could have been charged with violating Article 115. But now the military can charge someone under 128b, a domestic violence crime, for the same conduct.
MAXIMUM PUNISHMENT FOR DOMESTIC VIOLENCE
As of November 2021, the president has still not assigned a maximum punishment to this charge. Therefore, currently the maximum punishment depends on the actual act being alleged. For example, right now if a person is charged and convicted under 128b for hitting there spouse, the maximum punishment would be a Dishonorable Discharge, Total Forfeitures, Reduction to E-1, and 2 years confinement (this is the maximum punishment under Article 128 for Battery on a Spouse).
Additionally, a person’s 2nd Amendment rights are also effected if convicted of Domestic Violence. United States Code, Section 922(g)(9), also known as the Lautenberg Amendment, makes it a felony to possess a firearm or ammunition after being convicted of domestic violence.There are no exceptions for military or police, even while on duty. Therefore, a Domestic Violence conviction has wide ranging consequences and will effect current and futureemployment if carrying a weapon or ammunition is an essential part of that job.
If you or a loved one is charged with Assault, Battery, or Domestic Violence under the UCMJ, there are many defenses that could apply. Each case and each defense are based on the unique facts and circumstances that surround it. The Law Office of Jocelyn C. Stewart is available to help. Please schedule a consultation to see what defenses may apply.