Punitive Articles of the UCMJ

Article 128—Assault

Text.

“(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who—

  • (1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or

    (2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; is guilty of aggravated assault and shall be punished as a court-martial may direct.”

      Elements.

      (1) Simple assault.

      • (a) That the accused attempted or offered to do bodily harm to a certain person; and

      (b) That the attempt or offer was done with unlawful force or violence.

        (2) Assault consummated by a battery.

        • (a) That the accused did bodily harm to a certain person; and

        (b) That the bodily harm was done with unlawful force or violence.

          (3) Assaults permitting increased punishment based on status of victim.

          • (a) Assault upon a commissioned, warrant, noncommissioned, or petty officer.

          (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties.

          (c) Assault consummated by a battery upon a child under 16 years.

            • (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

            (ii) That the attempt, offer, or bodily harm was done with unlawful force or violence;

            (iii) That the person was a commissioned, warrant, noncommissioned, or petty officer; and

            (iv) That the accused then knew that the person was a commissioned, warrant, noncommissioned, or petty officer.

              • (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

              (ii) That the attempt, offer, or bodily harm was done with unlawful force or violence;

              (iii) That the person was a sentinel or look-out in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties; and

              (iv) That the accused then knew that the person was a sentinel or lookout in the execution of duty or was a person who then had and was in the execution of security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties.

                • (i) That the accused did bodily harm to a certain person;

                (ii) That the bodily harm was done with unlawful force or violence; and

                (iii) That the person was then a child under the age of 16 years.

                  (4) Aggravated assault.

                  • (a) Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.

                  (b) Assault in which grievous bodily harm is intentionally inflicted.

                    • (i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

                    (ii) That the accused did so with a certain weapon, means, or force;

                    (iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and

                    (iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.

                    (Note: When a loaded firearm was used, add the following element)

                    (v) That the weapon was a loaded firearm.

                      • (i) That the accused assaulted a certain person;

                      (ii) That grievous bodily harm was thereby inflicted upon such person;

                      (iii) That the grievous bodily harm was done with unlawful force or violence; and

                      (iv) That the accused, at the time, had the specific intent to inflict grievous bodily harm. (Note: When a loaded firearm was used, add the following element)

                      (v) That the injury was inflicted with a loaded firearm.

                        Explanation.

                        (1) Simple assault.

                        • (a) Definition of assault. An “assault” is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected. “Bodily harm” means any offensive touching of another, however slight.

                        (b) Difference between “attempt” and “offer” type assaults.

                        • (ii) Offer type assault. An “offer” type assault is an unlawful demonstration of violence, either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required.

                          • (i) Attempt type assault. An “attempt” type assault requires a specific intent to inflict bodily harm, and an overt act—that is, an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm. An attempt type assault may be committed even though the victim had no knowledge of the incident at the time.

                        (iii) Examples.

                        • (A) If Doe swings a fist at Roe’s head intending to hit Roe but misses, Doe has committed an attempt type assault, whether or not Roe is aware of the attempt.

                          (B) If Doe swings a fist in the direct of Roe’s head either intentionally or as a result of culpable negligence, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed an offer type assault whether or not Doe intended to hit Roe.

                          (C) If Doe swings at Roe’s head, intending to hit it, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed both on offer and an attempt type assault.

                          (D) If Doe swings at Roe’s head simply to frighten Roe, not intending to hit Roe, and Roe does not see the blow and is not placed in fear, then no assault of any type has been committed.

                            (c) Situations not amounting to assault.

                            • (i) Mere preparation. Preparation not amounting to an overt act, such as picking up a stone without any attempt or offer to throw it, does not constitute an assault.

                              (ii) Threatening words. The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since the combination constitutes a demonstration of violence.

                              (iii) Circumstances negating intent to harm. If the circumstances known to the person menaced clearly negate an intent to do bodily harm there is no assault. Thus, if a person accompanies an apparent attempt to strike another by an unequivocal announcement in some form of an intention not to strike, there is no assault. For example, if Doe raises a stick and shakes it at Roe within striking distance saying, “If you weren’t an old man, I would knock you down,” Doe has committed no assault. However, an offer to inflict bodily injury upon another instantly if that person does not comply with a demand which the assailant has no lawful right to make is an assault. Thus, if Doe points a pistol at Roe and says, “If you don’t hand over your watch, I will shoot you,” Doe has committed an assault upon Roe. See also - paragraph 47(robbery) of this part.

                                (d) Situations not constituting defenses to assault.

                                • (i) Assault attempt fails. It is not a defense to a charge of assault that for some reason unknown to the assailant, an assault attempt was bound to fail. Thus, if a person loads a rifle with what is believed to be a good cartridge and, pointing it at another, pulls the trigger, that person may be guilty of assault although the cartridge was defective and did not fire. Likewise, if a person in a house shoots through the roof at a place where a policeman is believed to be, that person may be guilty of assault even though the policeman is at another place on the roof.

                                (ii) Retreating victim. An assault is complete if there is a demonstration of violence and an apparent ability to inflict bodily injury causing the person at whom it was directed to reasonably apprehend that unless the person retreats bodily harm will be inflicted. This is true even though the victim re-treated and was never within actual striking distance of the assailant. There must, however, be an apparent present ability to inflict the injury. Thus, to aim a pistol at a person at such a distance that it clearly could not injure would not be an assault.

                                  (2) Battery.

                                  • (a) In general. A “battery” is an assault in which the attempt or offer to do bodily harm is consummated by the infliction of that harm.

                                  (b) Application of force. The force applied in a battery may have been directly or indirectly applied. Thus, a battery can be committed by inflicting bodily injury on a person through striking the horse on which the person is mounted causing the horse to throw the person, as well as by striking the person directly.

                                  (c) Examples of battery. It may be a battery to spit on another, push a third person against another, set a dog at another which bites the person, cut another’s cloths while the person is wearing them though without touching or intending to touch the person, shoot a person, cause a person to take poison, or drive an automobile into a person. A person who, although excused in using force, uses more force than is required, commits a battery. Throwing an object into a crowd may be a battery on anyone whom the object hits.

                                  (d) Situations not constituting battery. If bodily harm is inflicted unintentionally and without culpable negligence, there is no battery. It is also not a battery to touch another to attract the other’s attention or to prevent injury.

                                  (3) Assaults permitting increased punishment based on status of victims.

                                  • (a) Assault upon a commissioned, warrant, noncommissioned, or petty officer. The maximum punishment is increased when assault is committed upon a commissioned officer of the armed forces of the United States, or of a friendly foreign power, or upon a warrant, noncommissioned, or petty officer of the armed forces of the United States. Knowledge of the status of the victim is an essential element of the offense and may be proved by circumstantial evidence. It is not necessary that the victim be superior in rank or command to the accused, that the victim be in the same armed force, or that the victim be in the execution of office at the time of the assault.

                                  (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties. The maximum punishment is increased when assault is committed upon a sentinel or lookout in the execution of duty or upon a person who was then performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Knowledge of the status of the victim is an essential element of this offense and may be proved by circumstantial evidence. See - paragraph 38c(4)for the definition of “sentinel or lookout.”

                                  (c) Assault consummated by a battery upon a child under 16 years of age. The maximum punishment is increased when assault consummated by a battery is committed upon a child under 16 years of age. Knowledge that the person assaulted was under 16 years of age is not an element of this offense.

                                    (4) Aggravated assault.

                                    • (a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.

                                    (b) Assault in which grievous bodily harm is intentionally inflicted.

                                    • (ii) Other means or force. The phrase “other means or force” may include any means or instrumentality not normally considered a weapon. When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result. The use to which a certain kind of instrument is ordinarily put is irrelevant to the question of its method of employment in a particular case. Thus, a bottle, beer glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner likely to inflict death or grievous bodily harm. On the other hand, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means of force likely to produce grievous bodily harm, whether or not the assailant knew it was unloaded.

                                      (iii) Grievous bodily harm. “Grievous bodily harm” means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.

                                      (iv) Death or injury not required. It is not necessary that death or grievous bodily harm be actually inflicted to prove assault with a dangerous weapon or means likely to produce grievous bodily harm.

                                      • (i) Dangerous weapon. A weapon is dangerous when used in a manner likely to produce death or grievous bodily harm.
                                      • (i) In general. It must be proved that the accused specifically intended to and did inflict grievous bodily harm. Culpabl enegligence will not suffice.

                                    (ii) Proving intent. Specific intent may be proved by circumstantial evidence. When grievous bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, it may be inferred that grievous bodily harm was intended. On the other hand, that inference might not be drawn if a person struck another with a fist in a sidewalk fight even if the victim fell so that the victim’s head hit the curbstone and a skull fracture resulted. It is possible, however, to commit this kind of aggravated assault with the fists, as when the victim is held by one of several assailants while the others beat the victim with their fists and break a nose, jaw, or rib.

                                    (iii) Grievous bodily harm. See subparagraph (4)(a)(iii).

                                      Lesser included offenses.

                                      (1) Simple assault. None

                                      (2) Assault consummated by a battery. Article 128—simple assault

                                      (3) Assault upon a commissioned, warrant, non-commissioned, or petty officer. Article 128—simple assault; assault consummated by a battery

                                      (4) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of police duties. Article 128—simple assault; assault consummated by a battery

                                      (5) Assault consummated by a battery upon a child under 16 years. Article 128—simple assault; assault consummated by a battery

                                      (6) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. Article 128—simple assault; assault consummated by a battery

                                      (7) Assault in which grievous bodily harm is intentionally inflicted. Article 128—assault with a dangerous weapon; simple assault; assault consummated by a battery

                                      Maximum punishment.

                                      (1) Simple assault.

                                      • (A) Generally. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.

                                      (B) When committed with an unloaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

                                        (2) Assault consummated by a battery. Bad conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

                                        (3) Assault upon a commissioned officer of the armed forces of the United States or of a friendly foreign power, not in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

                                        (4) Assault upon a warrant officer, not in the execution of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.

                                        (5) Assault upon a noncommissioned or petty officer, not in the execution of office. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

                                        (6) Assault upon a sentinel or lookout in the execution of duty, or upon any person who, in the execution of office, is performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

                                        (7) Assault consummated by a battery upon a child under 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

                                        (8) Assault with a dangerous weapon or other means of force to produce death or grievous bodily harm.

                                        • (a) When committed with a loaded firearm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.

                                        (b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

                                        (b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

                                        Next ArticleArticle 129-Burglary >

                                        Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 54

                                          • (a) When the injury is inflicted with a loaded firearmDishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

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