Recent Trends in Military Legal Strategy:
Since around 2019, a notable shift in military prosecutions has emerged. Rather than assigning cases based on military units, there's a growing trend toward organizing around specific topics. This strategic change, particularly with the formation of general crimes teams in prosecution offices, has led to a significant increase in assault cases being prosecuted in military courts-martial.
Assault and the Emergence of Domestic Violence Charges:
Increased congressional scrutiny has driven the military to address allegations of physical abuse and domestic violence at the trial level. Previously, such cases might have been managed through nonjudicial punishment (Article 15 / Captain's Mast). Now, any allegation of physical abuse could lead to charges under Article 128 for Assault Consummated by a Battery. Additionally, if the alleged victim falls within certain categories, the case may be prosecuted under the relatively new Article 128b, which specifically addresses Domestic Violence.
DISTINGUISHING ASSAULT FROM BATTERY
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Contrary to popular belief, a legal assault is not just a physical beating; it's about creating a reasonable apprehension of harm in another person. Physical contact isn't required for an assault charge – the mere act of threatening harm, like raising a fist, can constitute an assault. If physical harm occurs, it becomes a battery. The military typically prosecutes physical violence under Article 128 as either Simple Assault or Assault Consummated by a Battery.
Simple Assault under Article 128:
For a Simple Assault charge, the prosecution must demonstrate an attempt or offer to cause bodily harm, done unlawfully and with force or violence. The maximum penalty for Simple Assault includes forfeitures of pay, demotion, and confinement for up to three months.
Assault Consummated by a Battery:
In cases of Assault Consummated by a Battery, three elements must be proven: actual bodily harm, unlawfulness, and force or violence. The maximum penalty here escalates to a Bad Conduct Discharge, total forfeitures, demotion, and up to six months of confinement. If the victim is a child under 16, the punishment can be even more severe.
THE LANDSCAPE OF DOMESTIC VIOLENCE PROSECUTIONS
With the introduction of Article 128b, UCMJ, for Domestic Violence, the scope of punishable offenses has expanded, encompassing violent acts, threats, violations of protection orders, and assaults by strangulation or suffocation against a spouse, intimate partner, or family member. This new law imposes stiffer punishments and long-term consequences, reflecting the seriousness with which the military now treats such offenses.
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Maximum Penalties for Domestic Violence:
The penalties for Domestic Violence under the UCMJ, as outlined in a 2022 executive order, include dishonorable discharge, forfeiture of pay, demotion, and variable confinement periods based on the underlying offense plus additional years.
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SECOND AMENDMENT RIGHTS AND DOMESTIC VIOLENCE CONVICTIONS
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A conviction for Domestic Violence also impacts Second Amendment rights under the Lautenberg Amendment, making firearm possession a felony post-conviction. This aspect is particularly consequential for military and law enforcement personnel.
Defense Strategies:
If facing charges of Assault, Battery, or Domestic Violence under the UCMJ, it's crucial to explore all potential defenses, which vary based on the unique circumstances of each case. Consulting with an experienced military law office can provide clarity on applicable defenses and strategic legal pathways.