Article 128 Assault DEFENDING MILITARY MEMBERS WORLDWIDE Contact Us!

ARTICLE 128 – ASSAULT

Under the Uniform Code of Military Justice, the offense of assault can be committed by one of three ways – offer, attempt, or by battery. An assault by offer places another person in reasonable apprehension of force. The act or omission can be intentional or culpably negligent. Touching is not required. An example could include pointing an unloaded person at another as a joke if the person is placed in reasonable apprehension of injury. [7] There is no assault if the circumstances indicate to the alleged victim that the accused does not intend to inflict injury.

Simple Assault

  • That the accused attempted or offered to do bodily harm to a certain person; and,
  • That the attempt or offer was done with unlawful force or violence. [1]

Assault Consummated by Battery

  • That the accused did bodily harm to a certain person; and,
  • That the bodily harm was done with unlawful force or violence. [2]

Assaults Permitting Increased Punishment Based on Status of Victim

Assault upon a commissioned, warrant, noncommissioned, or petty officer

  • That the accused attempted to do, offered to do, or did bodily harm to a certain person;
  • That the attempt, offer, or bodily harm was done with unlawful force or violence;
  • That the person was a commissioned, warrant, noncommissioned, or petty officer; and,
  • That the accused then knew that the person was a commissioned, warrant, noncommissioned, or petty officer.[3]

Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.

  • That the accused attempted to do, offered to do, or did bodily harm to a certain person;
  • That the attempt, offer, or bodily harm was done with unlawful force or violence;
  • That the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties; and,
  • That the accused then knew that the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties.[4]

Assault consummated by a battery upon a child under 16 years.

  • That the accused did bodily harm to a certain person;
  • That the bodily harm was done with unlawful force or violence; and,
  • That the person was then a child under the age of 16 years.[5]

Aggravated Assault

Aggravated assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.

  • That the accused attempted to do, offered to do, or did bodily harm to a certain person;
  • That the accused did so with a certain weapon, means, or force;
  • The attempt, offer, or bodily harm was done with unlawful force or violence; and,
  • That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.

Add any of the following as applicable:

  • That the weapon was a loaded firearm.
  • That the person was a child under the age of 16 years.[6]

Aggravated in which grievous bodily harm is intentionally inflicted.

  • That the accused assaulted a certain person;
  • That grievous bodily harm was thereby inflicted upon such person;
  • That the grievous bodily harm was done with unlawful force or violence; and,
  • That the accused, at the time, had the specific intent to inflict grievous bodily harm.

Add any of the following as applicable:

  • That the injury was inflicted with a loaded firearm.
  • That the person was a child under the age of 16 years.

An assault by attempt is an overt act that constitutes more than mere preparation and is coupled with a present ability and specific intent to inflict bodily harm. [8]

An assault by battery consists of intentional or culpably negligent use of force to another person.[9] This includes any offensive touching.

A lengthier discussion of aggravated assault is included below. The question in an aggravated assault case is most often a question of whether the force was used with a means likely to cause death or grievous bodily harm.

Maximum Punishment

  • Simple assault: Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. When committed with an unloaded firearm, dishonorable discharge, forfeiture of all pay and allowances and confinement for 3 years.
  • Assault consummated by a battery: Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
  • Assault upon a commissioned, warrant, noncommissioned, or petty officer: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
  • Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
  • Assault consummated by a battery upon a child under 16 years: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
  • Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: When committed with a loaded firearm – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. When committed upon a child under 16 years – dishonorable discharge, total forfeitures, and confinement for 5 years. In other cases, dishonorable discharge, total forfeitures, and confinement for 3 years.
  • Assault in which grievous bodily harm is intentionally inflicted: When the injury is with a loaded firearm, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. When the victim is under 16 years, dishonorable discharge, total forfeitures, and confinement for 8 years. In other cases, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

Lesser Included Offenses

  • Simple assault: None.
  • Assault consummated by a battery: Simple assault.
  • Assault upon a commissioned, warrant, noncommissioned, or petty officer: Simple assault or assault consummated by a battery.
  • Assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of police duties: Simple assault or assault consummated by a battery.
  • Assault consummated by a battery upon a child under 16 years: Simple assault or assault consummated by a battery.
  • Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm: Simple assault or assault consummated by a battery.
  • Assault in which grievous bodily harm is intentionally inflicted: Simple assault, assault consummated by a battery, and assault with a dangerous weapon.

References

  • [1] MCM, Pt. IV, ¶ 54a.
  • [2] MCM, Pt. IV, ¶ 54a.
  • [3] MCM, Pt. IV, ¶ 54a.
  • [4] MCM, Pt. IV, ¶ 54a.
  • [5] MCM, Pt. IV, ¶ 54a.
  • [6] MCM, Pt. IV, ¶ 54a.
  • [7] United States v. Bush, 47 C.M.R. 532 (N.C.M.R. 1973).
  • [8] MCM, Pt. IV, ¶ 54c.
  • [9] MCM, Pt. IV, ¶ 54c.
  • [10] MCM, Pt. IV, ¶ 54c.
  • [11] MCM, Pt. IV, ¶ 44c(2)(a)(i).
  • [12] Military Judges Benchbook, ¶ 3-54-1 – Simple Assault.
  • [13] Military Judges Benchbook, ¶ 3-54-1a – Simple Assault with an Unloaded Firearm.
  • [14] Military Judges Benchbook, ¶ 3-54-2 – Assault Consummated by Battery.
  • [15] Military Judges Benchbook, ¶ 3-54-3 – Assault Upon a Commissioned Officer.
  • [16] Military Judges Benchbook, ¶ 3-54-4 – Assault Upon a Warrant, Noncommissioned, or Petty Officer.
  • [17] Military Judges Benchbook, ¶ 3-54-5 – Assault Upon a Sentinel or Lookout.
  • [18] Military Judges Benchbook, ¶ 3-54-6 – Assault Upon a Peron in the Execution of Law Enforcement Duties.
  • [19] Military Judges Benchbook, ¶ 3-54-7 – Assault Consummated by a Battery Upon a Child Under 16 Years.
  • [20] Military Judges Benchbook, ¶ 3-54-8 – Assault Aggravated – with a Dangerous Weapon, Means or Force.
  • [21] Military Judges Benchbook, ¶ 3-54-9 – Assault Aggravated – Inflicting Grievous Bodily Harm.

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