Gonzalez & Waddington – Attorneys at Law

CALL NOW 1-800-921-8607

GW Logo
Menu

CALL NOW 1-800-921-8607

GW Logo
Menu

Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

What is Article 128 UCMJ Simple Assault and Assault Consummated by a Battery?

Background of the Law of Article 128 UCMJ: Simple Assault and Assault Consummated by a Battery

Article 128 Ucmj Simple Assault And Assault Consummated By A BatteryArticle 128 of the Uniform Code of Military Justice (UCMJ) addresses assault-related offenses. It covers a range of assaultive behaviors, from simple assault to more severe forms involving physical contact or injury. The primary goal of this article is to maintain order and discipline within the military by penalizing acts of violence or threats of violence among service members.

Article 128 UCMJ Simple Assault

Simple assault is defined as an attempt or offer, with unlawful force or violence, to do bodily harm to another person, whether or not the attempt or offer is consummated. The key elements of simple assault include:

  • The accused attempted or offered to do bodily harm to a certain person.
  • The attempt or offer was done with unlawful force or violence.
  • The act was done with a specific intent to commit bodily harm.

Article 128 UCMJ Assault Consummated by a Battery

Assault consummated by a battery involves physical contact that is unlawful and done with the intent to cause bodily harm. The key elements of this offense include:

  • The accused did bodily harm to a certain person.
  • The bodily harm was done with unlawful force or violence.
  • The act was done with a specific intent to inflict bodily harm.

Examples of Article 128 UCMJ Simple Assault

  1. Verbal Threats and movement: A service member raises a fist or weapon and threatens to hit another member without making any physical contact.
  2. Intimidation: A service member raises a fist threateningly but does not follow through with any physical action.
  3. Weapon Display: A service member brandishes a weapon in a threatening manner without using it.
  4. Threatening Gestures: A service member makes threatening gestures, such as pretending to punch someone but stopping short.
  5. Verbal Menace: A service member verbally threatens another member during an argument.
  6. Pointing a Gun: Pointing an unloaded gun at someone in a threatening manner.
  7. Throwing Objects: Throwing an object at someone without intending to hit them.
  8. Mock Attacks: Pretending to attack someone but stopping before contact is made.
  9. Aggressive Posturing: Taking an aggressive stance and moving toward another person threateningly.
  10.  Threatening with Animals: Using a dog or another animal to intimidate someone without letting the animal attack.
  11. Aggressive Vehicle Maneuvers: Using a vehicle to intimidate someone without making contact.
  12. Cornering Someone: Blocking someone’s path in a threatening manner.
  13.  Threatening with a Fake Weapon: Using a fake weapon to threaten someone.

Examples of Article 128 UCMJ Assault Consummated by a Battery

  1. Punching: A service member punches another service member in the face.
  2. Slapping: A service member slaps another service member during an argument.
  3. Kicking: Kicking another service member during a confrontation.
  4. Head-Butting: Using one’s head to strike another service member.
  5. Pushing: Pushing another service member to the ground.
  6. Grabbing: Grabbing another service member by the collar or arm aggressively.
  7. Choking: Choking another service member during a fight.
  8. Hitting with an Object: Striking another service member with an object like a bat or a chair.
  9. Spitting: Spitting on another service member.
  10. Hair Pulling: Pulling another service member’s hair during a confrontation.
  11. Shoving: Shoving another service member against a wall.
  12. Biting: Biting another service member during a physical altercation.
  13. Throwing Objects: Throwing an object that hits another service member.
  14. Elbowing: Using an elbow to strike another service member.
  15. Kneeing: Kneeing another service member in the stomach or groin.
  16. Tripping: Tripping another service member intentionally to cause them to fall.
  17. Throwing a Drink: Throwing a drink or any liquid at another service member.
  18. Punching the Body: Punching another service member in the body or torso.
  19. Using Pepper Spray: Using pepper spray or another irritant on another service member.
  20. Shaking Violently: Grabbing and shaking another service member violently.

These examples illustrate the range of actions that can be considered under each category of assault as defined by Article 128 of the UCMJ.

Collateral Consequences of Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Conviction

A conviction under Article 128 can have several collateral consequences, including:

  • Difficulty in obtaining civilian employment due to a less favorable discharge status.
  • Loss of military benefits, including retirement pay, VA benefits, and healthcare.
  • Damage to personal and professional reputation.
  • Potential civil liability for damages caused by the assault.

List of Article 128 UCMJ Assault Offenses and their Punishments

Purpose of Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

The primary purpose of Article 128 is to maintain good order and discipline within the military by addressing acts of violence and threats of violence. The law aims to:

  • Protect service members from harm and create a safe working environment.
  • Promote respect and professionalism among service members.
  • Deter potential offenders by emphasizing the serious consequences of assaultive behavior.
  • Uphold the standards of conduct necessary for military readiness and effectiveness.

Court Martial Lawyer for Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Cases

Law on Simple Assault & Assault Consummated by Battery

MCM, pt. IV, 54; UCMJ Article 128. Under the UCMJ, assault is defined as an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. An assault can therefore be committed in one of three separate ways:

UCMJ Article 128 – Assault by Offer.

An act or omission that foreseeably puts another in reasonable apprehension that force will immediately be applied to his person is an assault by offer, provided the act or omission involved is intentional or culpably negligent.

The gravamen of this offense is placing the victim in reasonable apprehension of an immediate unlawful touching of his person. The fact that the offered touching cannot be accomplished is no defense provided the victim is placed in reasonable apprehension. MCM, pt. IV,  54d.

Victim’s apprehension of harm and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • The ability to inflict injury need not be real but only reasonably apparent to the victim. For example, pointing an unloaded pistol at another in jest constitutes an assault by intentional offer if the victim is aware of the attack and is placed in reasonable apprehension of bodily injury. United States v. Bush, 47 C.M.R. 532 (N.C.M.R. 1973).
  • The victim’s belief that the accused does not intend to inflict injury vitiates the offense under the theory of offer. United States v. Norton, 4 M.R. 3 (C.M.A. 1952).
  • The victim’s apprehension of impending harm must be reasonable. See United States v. Hernandez, 44 C.M.R. 500 (A.C.M.R. 1971).

Assault by Attempt in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Cases

An overt act that amounts to more than mere preparation and is done with apparent present ability and with the specific intent to do bodily harm constitutes an assault by attempt. MCM, pt. IV, 54c.

An apparent ability to inflict bodily harm must exist in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Cases

  • United States v. Hernandez, 44 C.M.R. 500 (A.C.M.R. 1971) (no offense where Government failed to prove that instrument used under the circumstances was likely to result in harm)
  • United States v. Smith, 15 C.M.R. 41 (C.M.A. 1954) (accused need not be within actual striking distance of victim to constitute apparent ability to inflict harm). More than mere preparation to inflict harm is required
  • United States v. Crocker, 35 C.M.R. 725 (A.F.B.R. 1965) (where the accused with open knife advances towards his victim at the time when an affray is impending or is in progress and comes within striking distance, this amounts to more than mere preparation and is sufficient to complete the offense).

Words alone, or threats of future harm, are insufficient in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Cases

  • United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956).

Mens Rea and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • Attempt-type assault requires a specific intent to inflict bodily harm upon the victim. MCM, pt. IV, 54c.
  • The victim’s apprehension of impending harm is unnecessary in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery
  • MCM, pt. IV, 54c(1)(b)(i)
  • United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994)
  • United States v. Van Beek, 47 C.M.R. 99 (A.C.M.R. 1973)
  • United States v. Davis, 49 C.M.R. 463 (A.C.M.R. 1974). Firing a pistol over the heads of victims without the intent to injure them is insufficient for assault by attempt.

 Article 128 Assault Consummated by a Battery.

  • An intentional or culpably negligent application of force or violence to the person of another by a material agency constitutes a battery.
  • United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994) (discussing alternative theories of battery in the context of an HIV case).

Any offensive touching will suffice in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery Cases

  • United States v. Sever, 39 M.J. 1 (C.M.A. 1994) (nonconsensual kiss)
  • United States v. Bonano-Torres, 29 M.J. 845 (A.C.M.R. 1989), aff’d, 31 M.J. 175 (C.M.A. 1990) (nonconsensual kiss and touching buttons on blouse)
  • United States v. Madigar, 46 M.J. 802 (C.G. Ct. Crim. App. 1997) (unnecessary exposure to X-ray radiation was sufficient physical touching)
  • United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993), aff’d, 40 M.J. 320 (C.M.A. 1994) (smoke inhalation)

Mens Rea and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • Unlawful touching must be the result of an intentional or culpably negligent act. A culpably negligent act requires a negligent act/omission coupled with a culpable disregard for the foreseeable consequences to others.
  • United States v. Turner, 11 M.J. 784 (A.C.M.R. 1981) (contrasting an intentional battery with a culpably negligent battery; the court agreed that the accused who threw a rake at an MP, hitting him on the arm, had committed a battery, but it split on whether the violent act was intentional or culpably negligent).
  • United States v. Gibson, 43 M.J. 343 (C.A.A.F. 1995) (playing with and dropping a 40mm grenade round was a culpably negligent act sufficient to support a charge of aggravated assault (by battery); a reasonable soldier should have known what the object was and that dropping it would create a substantial and unjustified danger to bystanders).
  • United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993) (finding the accused was culpably negligent when he consumed alcohol while cooking and passed out, thereby causing the stove to catch fire and causing smoke inhalation injury to his infant son), aff’d, 40 M.J. 320 (C.M.A. 1994).
  • United States v. Mayo, 50 M.J. 473 (C.A.A.F. 1999) (intentionally throwing a 19-month-old child while playing with sufficient force and from a sufficient height to fracture the child’s femur may be a culpably negligent act).

Consent is not always a defense in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001) (consent not a defense to assault consummated by battery arising from sadomasochistic activities involving an accused’s wife, where the nature of injuries and means used suggested the wife was subjected to extreme pain)
  • United States v. Dumford, 28 M.J. 836 (A.F.C.M.R. 1989), aff’d, 30 M.J. 137 (C.M.A. 1990), cert. Denied, 498 U.S. 854 (1990) (consent not a defense to assault for a sexual activity where the accused has the AIDS virus)
  • United States v. Bygrave, 46 M.J. 491 (1997) (victim’s informed consent is no defense to a charge of aggravated assault for unprotected intercourse by HIV-infected accused)
  • United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989) (consent not a defense to assault by using unsterilized needles)
  • United States v. O’Neal, 36 C.M.R. 189 (C.M.A. 1966) (both parties to a mutual affray are guilty of assault)
  • United States v. Holmes, 24 C.M.R. 762 (A.F.B.R.) (consent not a defense if the injury is more than trifling or there is a breach of public order)
  • United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (child may consent to some types of assault)
  • United States v. Serrano, 51 M.J. 622 (N.-M. Ct. Crim. App. 1999) (act likely to produce grievous bodily harm or death)
  • United States v. Booker, 25 M.J. 114 (C.M.A. 1987)
  • United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996) (consent invalid where obtained by fraud).

Notice of Lack of Consent and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Johnson, 54 M.J. 67 (2000) (where there was a friendly relationship involving touchings that were not offensive and the victim never protested against backrubs, the government had to prove that the accused was on notice of lack of consent), aff’d by 55 M.J. 243 (C.A.A.F. 2001).

The Defense of Justification and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • Certain persons may be justified in touching others even without their permission.
  • United States v. McDaniel, 7 M.J. 522 (A.C.M.R. 1979) (no assault for NCO to place drunk and protesting soldier in a cold shower to sober him up). See R.C.M. 916(c).

Parental discipline defense and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Rivera, 54 M.J. 489 (2001)
  • United States v. Robertson, 36 M.J. 190 (C.M.A. 1991)
  • United States v. Brown, 26 M.J. 148 (C.M.A. 1988)

Requirements for parental disciple defense in Article 128 UCMJ Simple Assault and Assault Consummated by a Battery cases

  1. Proper parental purpose. Force is used to safeguard or promote the welfare of minors, including prevention or punishment of misconduct.
  2. Reasonable force. Force must not be intended or known to create a substantial risk of serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation.

Aggravated Assault With a Dangerous Means, Weapon, or Force. UCMJ Article 128(b)(1)

Aggravated assault with a dangerous weapon, means, or force includes the assault theories of offer, attempt, and battery. MCM, pt. IV, 54b(4)(a).

Dangerous under Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • A means/force/weapon is dangerous when used in a manner likely to produce grievous bodily harm.
  • United States v. Hernandez, 44 C.M.R. 500 (C.M.A. 1971) (Claymore Mine, under the circumstances, not used as a dangerous weapon). The offense is not established by the subjective state of mind of the victim but by an objective test as to whether the instrument is used as a dangerous weapon.
  • United States v. Cato, 17 M.J. 1108 (A.C.M.R. 1984). The mere use of a weapon in the course of an assault is sufficient whether or not the accused intended to employ the weapon to accomplish the assault.
  • United States v. Griffin, 50 M.J. 480 (C.A.A.F. 1999).

The government must prove that the natural and probable consequence of the means or force used would be death or grievous bodily harm.

  • United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996); Whether a particular means is a “means likely” depends on two findings: 1) the risk of harm must be more than a fanciful, speculative, or remote possibility; and 2) the natural and probable consequence of inflicting injury by such means must be death or grievous bodily harm.
  • United States v. Weatherspoon, 49 M.J. 209 (C.A.A.F. 1998).

Firearms and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • Article 128 Ucmj Simple Assault And Assault Consummated By A Battery Military Defense LawyersAn unloaded firearm is not a dangerous weapon within the meaning of Article 128 in an offer-type assault, even if the victim reasonably believed the weapon was capable of inflicting imminent death or grievous bodily harm.
  • United States v. Davis, 47 M.J. 484 (C.A.A.F. 1998).
  • United States v. Smith, 2 C.M.R. 256 (A.B.R. 1951) (pistol as the bludgeon is a dangerous weapon);
  • United States v. Lamp, 44 C.M.R. 504 (A.C.M.R. 1971) (functional carbine with rounds in magazine but not chambered is a dangerous weapon).
  • United States v. Bean, 62 M.J. 264 (C.A.A.F. 2006) involved a member engaging the safety of a loaded, operable firearm that does not remove its character as a dangerous weapon.
  • United States v. Cato, 17 M.J. 1108 (A.C.M.R. 1984) (jammed rifle a dangerous weapon).
  • Under UCMJ art. 134, a person can be convicted for carrying a concealed weapon, provided it is shown that the weapon was “dangerous.”
  • United States v. Thompson, 14 C.M.R. 38 (C.M.A. 1954). The term “dangerous weapon” has a different meaning in connection with the art. 134 offenses than it does in connection with the offense of aggravated assault.
  • Under UCMJ art. 134, the term “dangerous weapon” includes an unloaded pistol. United States v. Ramsey, 18 C.M.R. 588 (A.F.B.R. 1954)
  • United States v. Brungs, 14 C.M.R. 851 (A.F.B.R. 1954).]

Fists and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Kenne, 50 C.M.R. 217 (A.C.M.R. 1975)
  • United States v. Saunders, 25 C.M.R. 89 (C.M.R. 1958)
  • United States v. Vigil, 13 M.R. 30 (C.M.A. 1953)
  • United States v. Whitfield, 35 M.J. 535 (A.C.M.R.1992)
  • United States v. Debaugh, 35 M.J. 548 (A.C.M.R. 1992).

Belt buckle and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956).

Beer bottle and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Straub, 30 C.M.R. 156 (C.M.A. 1961).

Butter knife and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Lewis, 34 C.M.R. 980 (A.B.R. 1964).

Stick and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Ealy, 39 C.M.R. 313 (A.B.R. 1967).

CS/riot grenade and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Aubert, 46 C.M.R. 848 (A.C.M.R. 1972)
  • United States v. Schroder, 47 C.M.R. 430 (A.C.M.R. 1973).

AIDS (HIV) virus and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Dacus, 66 M.J. 235 (C.A.A.F. 2008). In a guilty plea to aggravated assault, a medical doctor provided sentencing evidence for the accused that his viral load was very low. When combined with the use of a condom, the likelihood of transmission of HIV was very low.
  • United States v. Witherspoon, 49 M.J. 208 (C.A.A.F. 1998), whether the means is “likely” has two prongs: “(1) the risk of harm and (2) the magnitude of the harm.” As the court stated in Witherspoon, “Where the magnitude of harm is great, there may be an aggravated assault even though the risk of harm is statistically low.”
  • United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), the court stated that “[T]he question is not the statistical probability of HIV invading the blood, but rather the likelihood of the virus causing death or serious bodily harm if it invades the body.”
  • Additionally, “the probability of infection need only be more than merely a fanciful, speculative, or remote possibility.” Assessing the second Witherspoon prong, the court found that the evidence, in this case, did not conflict with the accused’s plea to aggravated assault because death or grievous bodily harm is a natural and probable consequence if HIV were transmitted by sexual intercourse.
  • Moving to the first Witherspoon prong, the court concluded that the risk of HIV transmission in this case was low and remote but more than fanciful or speculative. Considering both prongs, the court concluded that while the risk may have been low, the magnitude of harm was significant.

Other Cases involving HIV and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Joseph, 37 M.J. 392 (C.M.A. 1993)
  • United States v. Johnson, 30 M.J. 53 (C.M.A. 1990)
  • United States v. Stewart, 29 M.J. 92 (C.M.A. 1989)
  • United States v. Bygrave, 46 M.J. 491 (1997) (consent no defense)
  • United States v. Schoolfield, 36 M.J. 545 (A.C.M.R. 1992), aff’d, 40 M.J. 132 (C.M.A. 1994)
  • United States v. Klauck, 47 M.J. 24 (C.A.A.F. 1997).
  • United States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991) (unprotected sexual intercourse by HIV-infected soldier did not constitute an assault by battery where the evidence indicated that the accused’s vasectomy prevented transfer of the virus).

Other sexually transmitted diseases and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Reister, 40 M.J. 666 (N.M.C.M.R. 1994) (genital herpes).

Tent pole and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Winston, 27 M.J. 618 (A.C.M.R. 1988).

Bed extender and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Wilson, 26 M.J. 10 (C.M.A. 1988).

Unsterilized needle and Article 128 UCMJ Simple Assault and Assault Consummated by a Battery

  • United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989).
  • Grievous bodily harm is defined as serious bodily injury, such as broken bones and deep cuts. MCM, pt. IV, 54c.
  • An assault and threat that occur at the same time are multiplicious for sentencing. United States v. Morris, 41 C.M.R. 731 (A.C.M.R. 1970)
  • United States v. Metcalf, 41 M.R. 574 (A.C.M.R. 1969).
  • LIOs: Assault with a dangerous weapon.
  • Where the evidence shows that an intoxicated accused pointed a loaded firearm at others, having first threatened them verbally and with a knife and assuming a firing position, the lesser included offense of simple assault is not reasonably raised, whether the safety is engaged or not. United States v. Bean, 62 M.J. 264 (C.A.A.F. 2005).

Aggravated Assault By Intentionally Inflicting Grievous Bodily Harm. UCMJ Art. 128.

Requires non-negligent battery resulting in grievous bodily harm.

  • Specific intent to inflict grievous bodily harm is necessary. United States v. Groves,10 C.M.R. 39 (C.M.A. 1953) (error not instructing on intoxication defense).
  • Aggravated assault by intentionally inflicting grievous bodily harm is multiplicitous with maiming under Article 124 when the same actions give rise to both convictions. United States v. Allen, NMCM 9800849, 2003 Lexis 169 (N-M. Ct. Crim. App. July 30, 2003).

Assault and Communication of Threat Distinguished

  • An assault (UCMJ art. 128) is an attempt or offer to do bodily harm with unlawful force or violence. Communication of a threat (UCMJ art. 134) embraces a declaration or intent to do bodily harm. Both offenses, therefore, relate to infliction of physical injury.
  • When committed simultaneously upon the same victim, they are properly a single offense for punishment purposes.
  • United States v. Lockett, 7 M.J. 753 (A.C.M.R. 1979)
  • United States v. Morris, 41 C.M.R. 731 (A.C.M.R. 1970)
  • United States v. Conway, 33 C.M.R. 903 (A.F.C.M.R. 1963).

Contact our military defense lawyers today for help finding the top court martial attorneys for your situation.

Stalking UCMJ Article 120a UCMJ

  • Implementing Executive Order signed 18 April 2007 (E.O. 13430).
  • The criminal act is a “course of conduct,” defined by the statute as: Repeated maintenance of visual or physical proximity to a specific person, or A repeated conveyance of verbal threats, written threats, or threats implied by conduct, or a combination of such threats, directed at or towards a specific person.
  • “Repeated,” in the definition of “course of conduct,” means two or more occasions.
  • Be alert to the implications of these statutory definitions for conduct occurring in barracks, or on a ship, or in a deployed environment where soldiers are compelled to be in close visual or physical proximity to one another.
  • Note that computer threats are not expressly incorporated in the statutory definition. To prosecute a course of conduct based on threats conveyed by computers, consider litigating whether computer-conveyed threats are “written” for purposes of the statute.
  • Alternatively, assimilate a state or federal offense to prosecute computer-conveyed threats. Be cognizant of the preemption doctrine ( see discussion on Preemption, Chapter 3, The General Article, supra ).

Child Endangerment.

  • MCM, pt. IV, 68a, UCMJ art. 134.
  • This is a new offense as of October 2007. See Executive Order 13447, dated 28 September 2007.
  • There are no reported cases under this article; however, as the Analysis states, child neglect was recognized in United States v. Vaughn, 58 M.J. 29 (2003) (in light of service custom, norms of states, and service-discrediting nature of the offense, child neglect is punishable under Article 134, even if no harm results to the child).

Elements of Child Endangerment

  1. That the accused had a duty of care of a certain child;
  2. That the child was under the age of 16 years;
  3. That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
  4. Under these circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to discredit the armed forces.

Law on Child Endangerment

  • Culpable negligence is more than simple negligence and is a negligent act accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. MCM, pt. IV,  68a(c)(3).
  • As in Vaughn, supra, there is no requirement of actual physical or mental harm to the child. MCM, pt. IV, 68a(c)(4).
  • The victim’s age is a factor in determining the quantum of negligence. The explanation provides several examples of acts to determine whether an act is negligent and, if so, whether the negligence rises to the level of culpable negligence.
  • MCM, pt. IV,  68a(c)(6).

Skip to content