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Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate

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

What is Article 128b UCMJ: Domestic Violence – Violation of protection order with intent to threaten or intimidate spouse, intimate partner, or immediate family member of that person?

Article 128B Ucmj Domestic Violence Violation Of Protection Order With Intent To Threaten Or IntimidateArticle 128b of the UCMJ addresses domestic violence involving the violation of a protection order with the intent to threaten or intimidate. This serious offense encompasses acts where the accused deliberately disregards a lawful protection order, using threats or intimidation against a spouse, intimate partner, or immediate family member. The severe penalties include confinement, dishonorable discharge, and a federal felony conviction.

Individuals accused of this crime must seek immediate legal representation from the best military defense lawyers. The military justice system is complex; navigating it without knowledgeable legal assistance can have devastating consequences. Experienced Article 128b UCMJ Domestic Violence lawyers can provide critical defense strategies, challenge the prosecution’s evidence, and protect the rights of the accused. These lawyers understand the intricacies of military law and can help mitigate the potential impacts on one’s career, reputation, and personal life.

Choosing the best military defense lawyers ensures that the accused receives a fair trial and the strongest possible defense, aiming for the most favorable outcome in these high-stakes cases.

Note: The maximum and minimum punishments for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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 Threaten or Intimidate 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 threaten or intimidate 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 (threaten) (intimidate) 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 threaten or intimidate spouse, intimate partner, or immediate family member of that person?

For offenses committed between 1 January 2019 and 27 December 2023:

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

For offenses 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. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate

In that, SGT Amy Killjoy, US Army, 3rd Support Battalion, did at or near Fort Irvin, California, on or about 7 September 2025, with the intent to intimidate the intimate partner of the accused, Sarah Victim, wrongfully violates a protection order by entering the residence of Sarah Victim.

Model Specification for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate

In that __________ (personal jurisdiction data), did, (at/on board location), on or about __________, with the intent to (threaten) (intimidate) the (spouse) (intimate partner) (immediate family member) of the accused, wrongfully violate a protection order by __________.

What are the Definitions for Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate?

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 with an element that includes the use, attempted use, or threatened use of physical force against another person or property.

The term “spouse” under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate means one’s husband or wife by lawful marriage.

The term “intimate partner”  under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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.

The term “immediate family”  under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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.)

The term “strangulation” under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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 whether there is any intent to kill or protractedly injure the victim.

The term “suffocation” under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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.

The term “protection order”  under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate 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 or 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 knew 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:

  1. any injunction, restraining order, or any other order issued by a civil or criminal court to prevent 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
  2. any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction under 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.
  3. 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.

Lawfulness of order. The lawfulness of the order is not a separate element of the offense. Thus, the MJ determines the lawfulness issue and does not submit it 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 a specific military duty and be one authorized by the person to give the accused.

The order must require the accused to do or stop doing a particular thing either immediately or at a later time. An order is lawful if reasonably necessary to safeguard and protect the command members’ morale, discipline, and usefulness. It is directly connected with maintaining 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 it is given to increase the punishment for an offense that it is expected the accused may commit.

The MJ may modify and use the four preceding sentences during a providence inquiry to define “lawfulness” for the accused.

For an order issued under 18 U.S.C. 2266 or 2265, the MJ should determine its lawfulness 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 lawful.

“Bodily harm” 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.

Under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate, “Culpable negligence” is a degree of carelessness greater than simple negligence.

Under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate, “Simple negligence” 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.

Under Article 128b UCMJ Domestic Violence Violation of Protection Order With Intent To Threaten or Intimidate, “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. In order 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 the violation of 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 Threaten or Intimidate 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 threaten or intimidate spouse, intimate partner, or immediate family member of that person Military Defense Lawyers

If you are suspected or accused of Article 128b UCMJ: Domestic Violence – Violation of protection order with intent to threaten or intimidate 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 Threaten or Intimidate:

  1. Approaching the Protected Person: Intentionally approaching a spouse or intimate partner within the restricted distance specified in the protection order.
  2. Sending Threatening Messages: Sending threatening text messages or emails to a protected spouse or intimate partner.
  3. Making Harassing Phone Calls: Repeatedly calling a spouse or intimate partner to intimidate or threaten them, despite the protection order.
  4. Showing Up at Workplace: Showing up at the workplace of the protected spouse or intimate partner to intimidate them.
  5. Following the Protected Person: Stalking or following a spouse or intimate partner despite the protection order.
  6. Vandalizing Property: Vandalizing the property of the protected spouse or intimate partner to intimidate them.
  7. Contacting Through Social Media: Using social media to send threatening or intimidating messages to a protected spouse or intimate partner.
  8. Entering the Home: Entering the home of a protected spouse or intimate partner without permission.
  9. Sending Third Parties: Sending friends or family members to communicate threats or intimidate the protected spouse or intimate partner.
  10. Showing Up at Children’s School: Showing up at the children’s school or activities to intimidate a protected spouse or intimate partner.
  11. Displaying Weapons: Displaying weapons in the presence of a protected spouse or intimate partner to intimidate them.
  12. Driving by Residence: Repeatedly driving by the residence of the protected spouse or intimate partner to intimidate them.
  13. Leaving Threatening Notes: Leaving threatening notes or messages at the home or workplace of a protected spouse or intimate partner.
  14. Violating No-Contact Orders: Initiating physical or verbal contact with a protected spouse or intimate partner despite a no-contact order.
  15. Threatening Legal Action: Threatening to take harmful legal actions against a protected spouse or intimate partner.
  16. Spreading False Rumors: Spreading false rumors about the protected spouse or intimate partner to harm their reputation.
  17. Showing Up at Public Places: Intentionally showing up at public places where the protected spouse or intimate partner is known to be.
  18. Blocking Access: Blocking the protected spouse or intimate partner’s access to their home, vehicle, or workplace.
  19. Sending Threatening Gifts: Sending threatening or intimidating gifts to a protected spouse or intimate partner.
  20. Using Children as Messengers: Using children to convey threats or intimidating messages to a protected spouse or intimate partner.

These examples demonstrate various ways in which a protection order can be violated with the intent to threaten or intimidate the protected individual, constituting a violation under Article 128b UCMJ Domestic Violence.

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