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Article 128 UCMJ Battery Upon a Child Under the Age of 16

Note: This law applies only to Article 128 UCMJ Battery Upon a Child Under 16 offenses committed on and after 1 January 2019.

What is Article 128 UCMJ Battery Upon a Child Under 16?

Article 128 UCMJ Battery Upon a Child Under the Age of 16Article 128 of the UCMJ addresses battery upon a child under the age of 16, a grave offense involving the intentional use of force or violence against a minor. This act is considered particularly heinous due to the vulnerability of children and the trust placed in military personnel.

Convictions for this offense carry severe consequences, including lengthy confinement, dishonorable discharge, forfeiture of pay, and long-term social and professional repercussions. Given these harsh penalties, it is crucial for anyone accused to seek the best military defense lawyers.

Court martial lawyers play a vital role in defending against such serious charges. They possess a thorough understanding of military law and can build a robust defense, challenging evidence, and procedural errors while protecting the accused’s rights. Experienced legal representation can significantly influence the case’s outcome, potentially reducing penalties or achieving acquittal.

Engaging skilled court martial lawyers, such as those at Gonzalez & Waddington, is essential for anyone facing charges under Article 128 UCMJ. Their comprehensive approach to military defense ensures that every aspect of the case is thoroughly examined and defended, increasing the chances of a favorable outcome.

Note: The maximum and minimum punishments for Article 128 UCMJ Battery Upon a Child Under the Age of 16 vary depending on the date of the offense.

What are the Elements of Article 128 UCMJ Battery Upon a Child Under the Age of 16?

  1. That (state the time and place alleged), the accused did bodily harm to (state the name of the alleged victim) by (state the manner alleged);
  2. That the bodily harm was done unlawfully;
  3. That the bodily harm was done with force or violence; and
  4. That (state the name of the alleged victim) was then a child under the age of 16 years.

What are the Maximum Punishments for Article 128 UCMJ Battery Upon a Child Under the Age of 16?

For Article 128 UCMJ Battery Upon a Child Under the Age of 16 offenses committed between 1 January 2019 and 27 December 2023:

  • 2 Years of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1

For Article 128 UCMJ Battery Upon a Child Under the Age of 16 offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128 UCMJ Battery Upon a Child Under the Age of 16 is a Category 2 Offense – Confinement from 1-36 months (1 month to 3 years)
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128 UCMJ Battery Upon a Child Under the Age of 16

In that TSgt Wayne Garcia, US Air Force, did, at or near Minot Air Force Base, on or about 4 October 2025, unlawfully strike James Garcia, a child under the age of 16 years, in the mouth with a fist.

Model Specification for Article 128 UCMJ Battery Upon a Child Under the Age of 16

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully (strike) (__________) __________, (a child under the age of 16 years), (in) (on) the __________ with _______.

What are the Definitions for Article 128 UCMJ Battery Upon a Child Under the Age of 16?

An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.

“Bodily harm” under Article 128 UCMJ Battery Upon a Child Under the Age of 16means an offensive touching of another, however slight.

An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.

“Culpable negligence” under Article 128 UCMJ Battery Upon a Child Under the Age of 16is a degree of carelessness greater than simple negligence.

“Simple negligence” under Article 128 UCMJ Battery Upon a Child Under the Age of 16is the absence of due care. The law always requires everyone to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; that is what “due care” means.

“Culpable negligence,” under Article 128 UCMJ Battery Upon a Child Under the Age of 16on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others, instead of merely a failure to use due care.

Accused’s knowledge of child’s age and Article 128 UCMJ Battery Upon a Child Under the Age of 16

Article 128 UCMJ Battery Upon a Child Under the Age of 16 military defense lawyersWhen the alleged victim is a child under the age of 16 years, the following instruction may be appropriate.

Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.

Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense(s), you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense(s), and it is not a defense to battery upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.

Article 128 UCMJ Battery Upon a Child Under the Age of 16 Military Defense Lawyers

Background of Article 128 UCMJ Battery Upon a Child Under the Age of 16

Article 128 of the Uniform Code of Military Justice (UCMJ) addresses assault and battery offenses. Battery upon a child under the age of 16 is considered a particularly egregious offense due to the vulnerability of the victim. This article ensures the protection of minors within the military community and upholds standards of conduct.

Basics of Article 128 UCMJ Battery Upon a Child Under the Age of 16

To secure a conviction for Article 128 UCMJ Battery Upon a Child Under the Age of 16, the prosecution must prove the following elements beyond a reasonable doubt:

  • Battery: The accused committed a battery, meaning they made unlawful physical contact with the victim.
  • Victim’s Age: The victim was under the age of 16 at the time of the battery.
  • Intent: The contact was done with unlawful force or violence.

Collateral Consequences of Article 128 UCMJ Battery Upon a Child Under the Age of 16 Conviction

A conviction for battery upon a child under the age of 16 can have numerous collateral consequences, including:

  • Difficulty obtaining civilian employment due to the nature of the conviction and any resulting discharge status
  • Loss of military benefits, including retirement pay, VA benefits, and healthcare
  • Significant damage to personal and professional reputation
  • Potential civil lawsuits from the victim or the victim’s guardians for damages
  • Mandatory registration as a sex offender, depending on the nature of the battery

Purpose of Article 128 UCMJ Battery Upon a Child Under the Age of 16

The primary purpose of penalizing battery upon a child under the age of 16 under Article 128 is to maintain good order and discipline within the military and to protect vulnerable individuals. By criminalizing such behavior, the military aims to:

  • Ensure the safety and well-being of minors within the military community
  • Promote a culture of respect and protection for vulnerable individuals
  • Deter potential offenders by highlighting the serious consequences of such behavior
  • Uphold the standards of conduct necessary for military readiness and effectiveness

If you are suspected or accused of Article 128 UCMJ Battery Upon a Child Under the Age of 16, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128 UCMJ Battery Upon a Child Under the Age of 16:

  1. Slapping: A service member slaps a child across the face.
  2. Punching: A service member punches a child in the arm or torso.
  3. Kicking: Kicking a child during a disciplinary action.
  4. Spanking with Excessive Force: Using excessive force while spanking a child.
  5. Choking: Choking a child in a fit of anger.
  6. Shaking: Shaking a child violently.
  7. Throwing: Throwing a child onto a bed or couch.
  8. Hitting with an Object: Striking a child with a belt, stick, or other object.
  9. Pushing: Pushing a child causing them to fall and get injured.
  10. Pulling Hair: Pulling a child’s hair aggressively.
  11. Biting: Biting a child during a moment of frustration.
  12. Elbowing: Using an elbow to strike a child.
  13. Kneeing: Kneeing a child in the stomach or back.
  14. Tripping: Intentionally tripping a child causing them to fall.
  15. Pinching: Pinching a child hard enough to cause bruising.
  16. Squeezing: Squeezing a child’s arm or hand tightly enough to cause pain or injury.
  17. Hitting the Head: Striking a child on the head with an open hand or object.
  18. Poking: Poking a child with a sharp object.
  19. Burning: Burning a child with a cigarette or hot object.
  20. Throwing Objects: Throwing objects at a child causing injury.
  21. Forced Immersion: Forcing a child’s head underwater or into another substance.
  22. Restraining: Tying or binding a child’s hands or feet.
  23. Forcing to Eat: Forcing a child to eat non-food items or food in a harmful manner.
  24. Hitting with a Closed Fist: Punching a child with a closed fist.
  25. Slamming Against a Wall: Slamming a child against a wall or door.
  26. Shoving: Shoving a child into furniture or hard surfaces.
  27. Using a Weapon: Striking a child with a weapon such as a bat or knife.
  28. Kicking a Child While Down: Kicking a child while they are on the ground.
  29. Drowning: Attempting to drown a child in a bathtub or pool.
  30. Throwing a Child: Throwing a child across a room or into a hard object.

These examples cover a range of actions that constitute battery upon a child under the age of 16, as defined under Article 128 of the UCMJ.

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