Is There Any Protection Under Military Law Against Cruelty and Maltreatment?

Many individuals do not understand that the military has its own laws in place and believe that any form of treatment can be handed out to members-cruel or otherwise-and there is nothing the service member can do except grin and bear it. This is certainly not the case and there are precise laws in place to prevent cruelty and maltreatment.

Any individual, regardless of rank or position, who is charged with cruelty, oppression, or maltreatment of any of his subordinates will find himself in a court martial proceeding.

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This law is for the protection of any individual who is compelled to follow the orders of the individual accused of the offence. The treatment doesn't always have to be of a physical nature, but there are standards by which the nature of the offence will be compared. Examples that may come under this section of charges would be improper punishment, assault, and sexual harassment.

Perhaps the misinformed conception of the laws pertaining to this offence came about because of the general mindset of the members of the military. Some may have thought that enduring cruelty and maltreatment was all part of the training. There may have been others that were afraid to step forward for fear of repercussions from fellow members. In any event, that type of attitude has changed over the last several years. Most of the members fully realize the hardships of the training involved but are also aware that cruelty and maltreatment are not condoned or tolerated by military law.

There may also be some misunderstanding as to what sexual harassment consists of. The following are some prime examples of sexual harassment, although the list is not all-inclusive, and of course each case depends on its own circumstances.

Influencing Deliberate or offensive comments Offensive gestures that suggest they are of a sexual nature Threats against the career, wages or employment of an individual in return for sexual favors.Individuals that are found guilty under Article 93 can receive a dishonorable discharge, one year's confinement, and be compelled to forfeit pay and allowances. If it is deemed to be a lesser included offence, then it would come under the jurisdiction of Article 80.

These laws have been put in place to protect every member from the type of treatment outlined here. It is important that all those subject to military rule and regulation understand what their rights are.

Is There Any Protection Under Military Law Against Cruelty and Maltreatment?

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Assault Crime in the Military Justice System

Quite often an individual's perception of a simple assault can be quite misleading. In respect to military law, there are three areas addressed by this offence. These are by offer, by attempt, or by battery. By having a basic understanding of these three areas, individuals might think twice before acting out and landing themselves into trouble.

By Offer: If an individual thinks that something that someone is doing, or not doing, is going to mean having some type of force applied against him, then this is an assault by offer. This holds true only if the person is led to believe this by the intention or negligence of the other person. In order for the offense to have been committed it does not mean that the act suspected by the individual is even carried out. In this case, it is definitely the thought that counts.

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So really, what constitutes leading one to believe that they are going to be physically harmed? To begin with, the actions leading one to believe they are in harm's way do not have to be factual. For example, if one person points an unloaded gun at another, and the person the gun is being pointed at was under the belief that the gun was loaded, then the person with the gun has committed assault even if he was only joking.

If the victim really knows that no harm is intended then this is not assault by offer. The victim's perspective that he really is being threatened with harm must be a reasonable perception.

Assault by attempt: Threatening words or threats of harm being eminent in the future are not considered assault. There has to be something to lead one to believe that they are going to suffer bodily harm. For example, if someone was to strike out at a victim, but they were not within distance of contact, it would still be assault because the potential to inflict harm was there. One would think that based on this, if an individual were to fire a pistol over another person's head, the shooter would be charged. If there was no intent to cause harm then this would not be the case.

Assault by Battery: The most commonly understood aspect of assault is that where force or violence is carried out by one party on another. It goes further than that, though. Even offensive touching can be presumed as an assault. For example, kissing someone that did not give their permission. There have even been examples of unnecessary exposure to radiation being classed as sufficient physical touching.

Sometimes knowing a little about the law can be more detrimental than knowing nothing at all. Many individuals who thought they knew what assault was had no idea that when charged with an offense, the act they carried out came under such an area of the law as assault.

Assault Crime in the Military Justice System

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Who Is Subject To Jurisdiction of the United States Military Court Martial

Generally, court martial jurisdiction is only exercised over active service members. (1) As long as a service member is on active duty, he or she is subject to the UCMJ. Jurisdiction normally ceases when the service member receives a valid discharge certificate. A Reservist is only subject to court martial jurisdiction when the offense was committed while on active duty or in an inactive duty training status. Meanwhile, Army National Guard of Air National Guard personnel are only subject to the federal military justice system while they are performing federal service. (2)
Worldwide Jurisdiction

The UCMJ has worldwide jurisdiction. (3) The system was designed to travel anywhere the American military deploys. Currently, in Iraq and Afghanistan, courts martial proceedings are conducted in a variety of settings, depending on the space availability and mission requirements. It is not uncommon for a court martial to be conducted in a large tent, or in a dingy building once used by Saddam Hussein's forces. Depending on the location, court martial participants, except for the defendant, may have their weapons close at hand.

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In Cases of Joint Jurisdiction, Who Will Prosecute

Commonly, both civilian and military courts have jurisdiction over an offense. In this situation, military authorities must coordinate with the state and federal prosecutors to determine who will prosecute. Although rare, a service member may be prosecuted in state court and in military court for the same offense, with certain limitations. However, the U.S. Constitution's double jeopardy clause protects an accused from being prosecuted in military and federal court for the same offense. (4)

Additionally, an American service member may be tried by a foreign country for offenses committed in that country, unless the country has an agreement relinquishing jurisdiction to the United States. Such an agreement is call a status of forces agreement (SOFA). The United States has SOFA agreements with the majority of countries where the nation's military operates. (5)

Sources

1. Articles 2 and 17, U.C.M.J.

2. Article 3 U.C.M.J.

3. Article 5, U.C.M.J.

4. Schlueter, David A., Military Criminal Justice: Practice and Procedure, (6th ed. 2004), at 238-40.

5. Id. at 241-42.

Who Is Subject To Jurisdiction of the United States Military Court Martial

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Does Freedom of Speech Apply to Military Members?

It Is a Good Idea to Watch What You Say In the Military

Any officer of the Military does not want to be bad mouthing any official in the government, basically from the President on down. If he/she does, they could find themselves before their peers in a court martial.

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The law pertaining to this is found under Article 88. It is fairly complex and detailed but the basics of it are as follows:

The official being spoken against must officially be in one of the following capacities: President Vice President Congress Secretary of Defense Secretary of a Military Department Secretary of Transportation Governor in the following capacities: legislature, State, Territory, CommonwealthIt doesn't matter whether the derogatory words were spoken in an official or private capacity.

This law is not generally enforced if the adverse remarks are made in a general political discussion, provided that they were not made as a personal remark towards one of the parties covered in this article. The same is applicable to private conversation.

Many times individuals read small writings such as this on the different laws of the military and just assume that the majority of them are mundane and not routinely put into practice. This is not something one wants to take for granted. If the law is on the books, it can be used at any time. Article 88 has only been around for about 60 years, but it really goes back many more years than that.

This particular military law may be one of the lesser ones known to many but nevertheless there have been charges laid in the past pertaining to it. Several officers have received disciplinary action for adversely voicing their opinion about a President, for example. Although Article 88 is not the only one that pertains to conduct of speech, it is one that any officer or officer-hopeful should be mindful of. Officers in civilian clothes or officers off duty have been reported for bad mouthing the applicable officials.

Does Freedom of Speech Apply to Military Members?

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Non Judicial Punishment (NJP) In The Military - An Overview

Non-judicial punishment (NJP) is a command leadership tool. It gives military commanders a quick means of maintaining good order and discipline. NJP is intended to efficiently correct misconduct at a relatively low level without the stigma of a federal conviction. This proceeding does not constitute a criminal conviction.

The majority of crimes that occur in the military are dealt with by using this method of disposition. Before imposing non-judicial punishment, the commander must notify the accused member of the charges and provide him or her with supporting evidence. The service member may then seek legal advice. The service member can choose to accept the NJP or refuse it and demand a trial by courts martial.

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It is crucial that a service member seek expert legal advice before the proceedings. Turning down this form of discipline and demanding a court martial should be done with extreme caution. Before turning down NJP, the accused must be fully advised of the serious, long-term consequences that may occur as a result of a court martial. If a service members rejects non judicial punishment, the command may take the servicemember to trial. Conviction at trial will result in a Federal Conviction.

Punishments vary based on the rank of the accused. Generally, punishments include: reduction in rank (enlisted only), forfeiture of up to two-thirds of a month's pay per month for two months, restriction, extra duty, and a reprimand. The maximum punishment varies based on the rank of the officer imposing the punishment; the higher the rank, the greater the punishment.

Non Judicial Punishment (NJP) In The Military - An Overview

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