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Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense

Note: This law applies only to Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense offenses committed on and after 1 January 2019.

What is Article 128b UCMJ Domestic Violence Violation of Protection Order with intent to commit a violent offense against a spouse, intimate partner, or immediate family member of that person?

Article 128B Domestic Violence Violation Of Protection Order With Intent To Commit Violent OffenseDomestic violence and violation of a protection order under Article 128b of the Uniform Code of Military Justice (UCMJ) is a serious offense. This provision addresses instances where a service member violates a protection order with the intent to commit a violent offense. The gravity of such allegations necessitates a thorough understanding of Article 128b and underscores the importance of seeking legal representation from the best military defense lawyers.

Article 128b UCMJ outlines domestic violence offenses, particularly focusing on violations of protection orders. A protection order is a legal directive intended to safeguard victims of domestic violence by restricting the accused’s actions and proximity to the victim. Violating this order with the intent to commit a violent act significantly escalates the severity of the offense. Such violations demonstrate a disregard for legal boundaries and a potential threat to the victim’s safety, which the military justice system addresses with stringent penalties.

Individuals accused of violating a protection order under Article 128b UCMJ face serious consequences. Penalties can include confinement, dishonorable discharge, forfeiture of pay, and long-term impacts on military and civilian careers. Given the severity of these potential outcomes, it is crucial for the accused to seek immediate legal assistance from experienced Article 128b UCMJ Domestic Violence lawyers.

Note: The maximum and minimum punishments for Article 128b UCMJ Domestic Violence vary depending on the date of the

offense.

In the military, the crime of Article 128b UCMJ Domestic Violence Violation of Protection Order with intent to commit a violent offense against spouse, intimate partner, or immediate family member of that person falls under the general offense category of Domestic Violence. It is one of the more serious offenses under the UCMJ and carries increased punishments.

What are Article 128b UCMJ Domestic Violence Offenses?

What are the Elements of Article 128b UCMJ Domestic Violence Violation of Protection Order with intent to commit a violent offense against a spouse, intimate partner, or immediate family member of that person?

  1. That (state the time alleged) a lawful protection order was in place;
  2. That (state the time and place alleged) the accused committed an act in violation of that lawful protection order by (state the manner in which the order was allegedly violated); and
  3. That the accused committed the act with the intent to commit a violent offense against a (spouse) (intimate partner) (immediate family member) of the accused.

What are the Maximum Punishments for Article 128b UCMJ Domestic Violence Violation of Protection Order with intent to commit a violent offense?

For Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense committed between 1 January 2019 and 27 December 2023:

  • 5 Years of Confinement
  • Dishonorable Discharge, BCD, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Federal Felony Conviction

For Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense committed after 27 December 2023

  • Under the Sentencing Parameters, Article 128b UCMJ is a Category 2 Offense
  • Mandatory confinement ranges from 1-36 months (1 month to 3 years)
  • Dishonorable Discharge, BCD, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Federal Felony Conviction
  • 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.

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense

In that TSgt Julian Renaldo, US Air Force, 889th Security Forces Squadron, did at or near Cannon Air Force Base, New Mexico, on or about 6 July 2024, violate a protection order, to wit: An order to not contact his wife Maria Victim, with the intent to commit a violent offense, to wit: the premeditated murder of Maria victim by means of shooting her with a handgun.

Model Specification for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense

In that __________ (personal jurisdiction data), did, (at/on board location), on or about __________, violate protection order, to wit: __________, with the intent to commit a violent offense, to wit: (describe offense with sufficient detail to include expressly or by necessary implication every element), against the (spouse) (intimate partner) (immediate family member) of the accused.

What are the Definitions for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense?

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “violent offense” means a violation of the following:

  1. Article 118, UCMJ,
  2. Article 119(a), UCMJ,
  3. Article 119a, UCMJ,
  4. Article 120, UCMJ,
  5. Article 120b, UCMJ,
  6. Article 122, UCMJ,
  7. Article 125, UCMJ,
  8. Article 126, UCMJ,
  9. Article 128, UCMJ,
  10. Article 128a, UCMJ,
  11. Article 130, UCMJ, or
  12. Any other offense that has an element that includes the use, attempted use, or threatened use of physical force against the person or property of another.

The term “spouse” means one’s husband or wife by lawful marriage.

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “intimate partner” means either (a) one’s former spouse, a person with whom one shares a child in common, or a person with whom one cohabits or with whom one has cohabited as a spouse; or (b) a person with whom one has been in a social relationship of a romantic or intimate nature, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “immediate family” means either (a) one’s spouse, parent, brother or sister, child, or other person to whom he or she stands in loco parentis; or (b) any other person living in one’s household to whom he or she is related by blood or marriage. “In loco parentis,” meaning “in place of a parent,” is a legal doctrine describing a relationship similar to that of a parent to a child; it refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person.)

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “strangulation” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or wh ether there is any intent to kill or protractedly injure the victim.

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “suffocation” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.

Under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense, the term “protection order” means (a) a military protective order enforceable under 10 U.S.C. Section 892 (Article 92, UCMJ); or (b) a protection order, as defined in 18 U.S.C. Section 2266 and, if issued by a State, tribal, or territorial court, is in accordance with the standards specified in 18 U.S.C. Section 2265.

An order enforceable under 10 U.S.C. Section 892 means:

  1. That (state the name and rank or grade of the person issuing the order regulation), a member of the armed forces, issued a lawful order, to wit: (state the date and specific source of the alleged order and quote the order or the specific portion thereof);
  2. That the accused had knowledge of the order; and
  3. That the accused had a duty to obey the order)

A protection order, as defined in 18 U.S.C. Section 2266, means:

  • Any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and
  • Any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking.)

Under 18 U.S.C. Section 2265, a protection order issued by a State, tribal, or territorial court meets the standards specified if:

(1) such court has jurisdiction over the parties and matter under the law of such State, Indian tribe, or territory; and

(2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal, or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights.) (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.

The lawfulness of order under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense.

The lawfulness of the order is not a separate element of the offense. Thus, the issue of lawfulness is determined by the MJ and is not submitted to the members. See United States v. New, 55 MJ 95 (CAAF 2001); United States v. Deisher, 61 MJ 313 (CAAF 2005). If the MJ determines that, based on the facts, the order was not lawful, the MJ should dismiss the affected specification, and the members should be so advised. To be lawful, the order must relate to specific military duty and be one that the person was authorized to give the accused.

The order must require the accused to do or stop doing a particular thing either at once or at a future time. An order is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the services.

An order is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, it is arbitrary and unreasonable, and/or it is given for the sole purpose of increasing the punishment for an offense which it is expected the accused may commit.

The four preceding sentences may be modified and used by the MJ during a providence inquiry to define “lawfulness” for the accused.

For an order issued under 18 U.S.C. 2266 or 18 U.S.C. 2265, the MJ should determine the lawfulness of the order under federal law.

When the MJ determines that, based on the facts, the order was lawful, the MJ should advise the members as follows: As a matter of law, the order in this case, as described in the specification, if in fact there was such an order, was a lawful order.

“Bodily harm” under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense means 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.

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.

“Culpable negligence” under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense is a degree of carelessness greater than simple negligence.

“Simple negligence” under Article 128b Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense is 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,” on 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.

If the offense alleges that the accused committed a violent offense (Article 128b(1)) or committed an offense against the UCMJ (Article 128b(2A), Article 128b(2B)), the Military Judge must advise the members of the elements and appropriate definitions of the alleged offense, as follows. To establish that the accused committed the offense of (state the alleged offense), the government must prove, beyond a reasonable doubt, the following elements:

If the offense alleges that the accused intended to commit a violent offense (Article 128b(4)), the Military Judge must advise the members of the elements and appropriate definitions of the alleged offense, as follows.

Proof that the accused committed a violent offense is not required. However, the government must prove beyond a reasonable doubt that, at the time of violating the protection order, the accused intended every element of the offense of (state the alleged violent offense).

The government must also prove beyond a reasonable doubt that the intended offense is a violent offense.

Potential Collateral Consequences of a Conviction of Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Commit Violent Offense and a Federal Conviction

  • Employment will be severely limited (many employers won’t hire a convict)
  • Inability to enroll in college, university, or trade school
  • Loss of GI Bill
  • Loss of military career
  • Loss of retirement benefits.
  • Loss of VA benefits.
  • Loss of medical benefits.
  • Loss of spouse, family members, and friends
  • Loss of income while in jail
  • Mental, physical suffering before and after prison
  • Ineligibility for public benefits, such as food stamps
  • Ineligibility for government-sponsored student loans and grants;
  • Restrictions on certain types of employment or occupational licenses;
  • Ineligibility to provide foster care to minor family members
  • Prohibitions on working with children
  • Loss of professional license or certification
  • Limitations on adoption or foster care

Article 128b UCMJ: Domestic Violence Violation of protection order with intent to commit a violent offense against spouse, intimate partner, or immediate family member of that person military defense lawyers

There are several reasons why hiring competent defense lawyers is essential in these cases. Firstly, military law is intricate, and navigating the UCMJ requires a profound understanding of its provisions and procedural intricacies.

Defense lawyers with experience in Article 128b cases can ensure that the accused’s rights are protected and that all procedural requirements are meticulously followed. Secondly, accusations of domestic violence and protection order violations carry a substantial stigma, affecting the accused’s personal and professional life. An adept lawyer can help mitigate these repercussions by formulating a robust defense strategy to challenge the allegations or reduce the penalties.

Moreover, the investigative process in these cases can be invasive and overwhelming. Skilled defense lawyers are proficient in scrutinizing evidence, identifying procedural errors, and challenging the prosecution’s case. They can also provide critical support and guidance to the accused, helping to maintain their mental and emotional resilience during this challenging period.

In conclusion, facing accusations of violating a protection order with the intent to commit a violent offense under Article 128b UCMJ is a daunting experience that demands the support of the best military defense lawyers.

The complexities of military law and the severe consequences of a conviction make it imperative to seek experienced Article 128b UCMJ Domestic Violence lawyers. By doing so, the accused can uphold their rights and enhance their chances of achieving a favorable outcome in their case.

If you are suspected or accused of Article 128b UCMJ: Domestic Violence Violation of Protection Order with intent to commit a violent offense against your spouse, intimate partner, or immediate family member of that person, speak with one of our experienced military court martial lawyers to discuss your case.

Examples of Article 128b UCMJ Domestic Violence Violation of a Protection Order with Intent to Commit a Violent Offense:

  1. Entering Residence to Assault: Entering the protected spouse or intimate partner’s residence to physically assault them.
  2. Waiting Outside Workplace: Waiting outside the protected spouse or intimate partner’s workplace with the intent to physically harm them.
  3. Breaking into Home: Breaking into the home of the protected spouse or intimate partner to commit a violent act.
  4. Carrying a Weapon: Approaching the protected spouse or intimate partner while carrying a weapon with the intent to use it.
  5. Attempted Strangulation: Violating the protection order to gain access and attempt to strangle the protected spouse or intimate partner.
  6. Threatening to Kill: Violating the protection order to directly threaten the life of the protected spouse or intimate partner with a weapon.
  7. Kidnapping: Violating the protection order to kidnap the protected spouse or intimate partner.
  8. Throwing Objects: Violating the protection order to throw objects at the protected spouse or intimate partner with intent to injure.
  9. Physical Confrontation: Approaching the protected spouse or intimate partner to engage in a physical confrontation.
  10. Violent Home Entry: Forcing entry into the home of the protected spouse or intimate partner to commit battery.
  11. Stalking with Weapon: Stalking the protected spouse or intimate partner while armed with a weapon and intending to use it.
  12. Assault During Visitation: Violating the protection order during a supervised visitation to assault the protected spouse or intimate partner.
  13. Vandalism Leading to Confrontation: Vandalizing the property of the protected spouse or intimate partner to provoke a confrontation.
  14.  Breaking Car Windows: Smashing the car windows of the protected spouse or intimate partner to intimidate or harm the physically
  15. Violent Trespass: Trespassing on the property of the protected spouse or intimate partner to commit an act of violence.
  16. Forcing Entry During an Argument: Forcing entry into a place where the protected spouse or intimate partner is located to escalate an argument into violence.
  17. Threatening Family Members: Violating the protection order to threaten or harm family members of the protected spouse or intimate partner.
  18. Attempted Arson: Attempting to set fire to the home or property of the protected spouse or intimate partner.
  19. Forced Confinement: Violating the protection order to forcefully confine or restrain the protected spouse or intimate partner.
  20. Physical Abuse in Public: Violating the protection order to physically abuse the protected spouse or intimate partner in a public place.

These examples illustrate various ways in which a protection order can be violated with the intent to commit a violent offense against the protected individual, constituting a violation under Article 128b UCMJ Domestic Violence.

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