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Simple Assault & Assault Consummated by Battery
MCM, pt. IV, 54; UCMJ art. 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 either intentional or culpably negligent. The gravamen of this offense is the placing of the victim in reasonable apprehension of an immediate unlawful touching of his person. The fact that the offered touching cannot actually be accomplished is no defense provided the victim is placed in reasonable apprehension. MCM, pt. IV, 54d.
Victim’s apprehension of harm.
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.
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. 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. United States v. Hines , 21 C.M.R. 201 (C.M.A. 1956).
Mens Rea. Attempt-type assault requires a specific intent to inflict bodily harm upon the victim. MCM, pt. IV, 54c.
Victim’s apprehension of impending harm is unnecessary. MCM, pt. IV, 54c(1)(b)(i). See 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 pistol over the heads of victims, without the intent to injure them, is insufficient for assault by attempt.
An intentional or culpably negligent application of force or violence to the person of another by a material agency constitutes a battery. See generally 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. See 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).
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. See 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 in fact 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 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 sufficient height to fracture the child’s femur may be a culpably negligent act).
Consent is not always a defense. 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 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 more than trifling or there is a breach of public order); cf . 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. 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).
Certain persons may be justified in touching others even without their permission. See, e.g. , 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. See generally 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: (a) Proper parental purpose. Force used for safeguarding or promoting the welfare of the minor, including prevention or punishment of misconduct. (b) 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 art. 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. 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 actually intended to employ the weapon to accomplish the assault. United States v. Griffin , 50 M.J. 480 (C.A.A.F. 1999).
Government must prove natural and probable consequence of 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 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. An 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). Cf. United States v. Smith , 2 C.M.R. 256 (A.B.R. 1951) (pistol as 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) (engaging the safety of a loaded, operable firearm 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). [ Note : 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 offense 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. 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. United States v. Patterson , 21 C.M.R. 135 (C.M.A. 1956).
- Beer bottle. United States v. Straub , 30 C.M.R. 156 (C.M.A. 1961).
- Butter knife. United States v. Lewis , 34 C.M.R. 980 (A.B.R. 1964).
- Stick. United States v. Ealy , 39 C.M.R. 313 (A.B.R. 1967).
- CS/riot grenade. 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
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 and when combined with the use of a condom, the likelihood of transmission of HIV was very low. Under 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.” Citing 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: 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). But see 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. United States v. Reister , 40 M.J. 666 (N.M.C.M.R. 1994) (genital herpes).
Tent pole. United States v. Winston , 27 M.J. 618 (A.C.M.R. 1988).
Bed extender. United States v. Wilson , 26 M.J. 10 (C.M.A. 1988).
Unsterilized needle. 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, which 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(b)(2).
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 to instruct on defense of intoxication).
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).
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Stalking, UCMJ art. 120a
Implementing Executive Order signed 18 April 2007 (E.O. 13430). ISSUES:
The criminal act is a “course of conduct,” defined by the statute as:
A repeated maintenance of visual or physical proximity to a specific person, or
A repeated conveyance of verbal threat, 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 threats conveyed by computer are not expressly incorporated in the statutory definition. To prosecute a course of conduct based on threats conveyed by computer, consider litigating whether computer-conveyed threats are “written” for purposes of the statute. In the alternative, 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 ).
There are no reported cases under this article.
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 offense, child neglect is punishable under Article 134, even if no harm results to the child).
That the accused had a duty of care of a certain child;
That the child was under the age of 16 years;
That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
That, under the 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 bring discredit upon the armed forces.
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).
Age of the victim is a factor in determining the quantum of negligence. The explanation provides several examples of acts to assist in determining whether an act is negligent, and if so, whether the negligence rises to the level of culpable negligence. See MCM, pt. IV, 68a(c)(6). &