Military Domestic Violence Defense

It goes without saying that marriage can be tough. But military marriages are stressed more than most due to the young age of many couples, financial constraints, and overseas deployments. A conviction for domestic violence can have disastrous consequences on a service member’s military career and future.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including domestic violence. Contact one of our military defense lawyers today to learn more.

Article 128b, UCMJ (Domestic Violence)

Domestic violence has become a hot button issue for the military in recent years. As a result, in 2019 Congress added a new charge to the UCMJ–Article 128b–which specifically targets the offense of domestic violence. Under Article 128b, a charge of domestic violence can be brought against any person who:

• commits a violent offense against a spouse, intimate partner, or immediate family member of that person;
• with intent to threaten or intimidate a spouse, intimate partner, or immediate family member of that person, commits a criminal offense against any person or property (including an animal);
• with intent to threaten or intimidate a spouse, intimate partner, or immediate family member of that person, violates a protection order;
• with intent to commit a violent offense against a spouse, intimate partner, or immediate family member of that person, violates a protection order; or
• assaults a spouse, intimate partner, or immediate family member of that person by strangulation or suffocation.

While historically a charge of domestic assault might have required evidence of an unlawful touching, this new law does not. Notably, Article 128b allows a service member to be convicted of domestic violence just for violating a protective order (assuming there is evidence that such violation was with the intent to threaten or intimidate an intimate partner).

This is a major change in the law–and a very concerning one–given the frequency with which commanders issue protective orders. Service members who are under investigation or have been issued a “no contact” order should exercise extreme caution to ensure absolute compliance with such orders.

Defenses

The following are several common legal defenses that can be used against charges of domestic violence:

• Self-defense: If the accused can demonstrate that they were acting in self-defense or defense of others, they may have a valid defense against charges of domestic violence. This defense typically requires showing that there was an immediate threat of harm and that the use of force was necessary to prevent that harm.
• Defense of others: Similar to self-defense, the defense of others involves using force to protect another person from harm. The accused must show that they reasonably believed the other person was in imminent danger and that their actions were necessary to prevent harm.
• Lack of intent: Domestic violence charges often require proof of intent to harm or commit an unlawful act. If the accused can demonstrate that they did not have the intent to commit the alleged act of domestic violence, it may serve as a defense.
• Alibi: An alibi defense involves providing evidence that the accused was not present at the time and place where the alleged domestic violence occurred. This defense relies on witnesses, documents, or other evidence to establish that the accused could not have committed the offense.
• Mistaken identity: In some cases, the accused may argue that they were mistakenly identified as the perpetrator of domestic violence. This defense relies on casting doubt on the reliability of witness testimony or other evidence linking the accused to the alleged offense.
• Consent: Consent may be a defense in cases where the alleged victim voluntarily agreed to the actions that are the basis of the domestic violence charges. However, it's important to note that consent may not be a valid defense if the alleged victim was coerced, incapacitated, or unable to give valid consent.
• Mental incapacity: If the accused was suffering from a mental illness or incapacity at the time of the alleged offense, they may be able to raise a defense of mental incapacity. This defense typically requires expert testimony to establish that the accused was unable to understand the nature of their actions or appreciate the wrongfulness of their conduct.
• Police misconduct: In rare cases, the defense may argue that police misconduct, such as illegal search or seizure, coercion, or fabrication of evidence, undermines the validity of the charges against the accused.

Defenses to a domestic violence case depend on the individual circumstances. As with all offenses, the elements of the crime must first met. Additionally, service members always have an absolute right to self-defense and can reasonably protect themselves against an assault.

Maximum Penalties

Article 128b does not explicitly provide a maximum punishment for the crime of domestic violence. In such cases, military courts will look at similar offenses under the UCMJ to determine an appropriate punishment range.

For comparison, charges under Article 128 (Assault) range from 3 months confinement for simple assault to up to 20 years confinement for aggravated assault perpetrated with the intent of committing other specified felonies.

Lautenberg Amendment

The Lautenberg Amendment to the Gun Control Act of 1968, effective 30 September 1996, makes it a felony for anyone convicted of a “misdemeanor crime of domestic violence” to ship, transport, possess, or receive firearms or ammunition. This law applies to all service members worldwide with a qualifying conviction.

Qualifying domestic violence convictions may be in state or federal court, including special or general court-martial. Qualifying convictions do not include a summary court-martial conviction or the imposition of nonjudicial punishment under Article 15, UCMJ. A service member with a qualifying conviction can expect to be separated from the military.

FAQs About Military Domestic Violence Allegations

Should I cooperate with military authorities if I've been charged with domestic violence?

Cooperate with military authorities while also understanding your legal rights. Refrain from making statements or admissions without consulting with your attorney first. Your attorney can advise you on the best course of action to protect your interests during the investigation and legal proceedings.

What are my rights during the investigation and legal process?

As someone charged with military domestic violence, you have rights under the UCMJ, including the right to remain silent, the right to legal representation, and the right to confront witnesses against you. It's crucial to assert these rights and work closely with your attorney to build a strong defense strategy.

Can I be subject to a military protective order (MPO) if I've been charged with domestic violence?

Yes, military authorities may issue a Military Protective Order (MPO) against you if you've been charged with domestic violence. An MPO can impose restrictions on your contact with the alleged victim and may include other conditions aimed at preventing further harm or intimidation.

What should I do if I believe the charges against me are false or exaggerated?

If you believe the charges against you are false or exaggerated, it's essential to gather evidence and witnesses to support your defense. Your attorney can help you assess the evidence, identify inconsistencies or weaknesses in the prosecution's case, and challenge the allegations effectively during legal proceedings.

How will a domestic violence conviction affect my military career?

A domestic violence conviction can have serious consequences for your military career, including potential discharge, loss of rank, and other administrative actions. Understand the potential ramifications and work with your attorney to mitigate the impact on your career and future.

Can I negotiate a plea bargain or alternative resolution to domestic violence charges?

Depending on the circumstances of your case, your attorney may explore the possibility of negotiating a plea bargain or alternative resolution with military prosecutors. These options could involve pleading guilty to lesser charges or participating in diversion programs aimed at rehabilitation and prevention.

How can I maintain contact with my family or children during legal proceedings?

If restrictions on contact with family members or children are imposed as part of an MPO or other legal orders, comply with these restrictions while exploring legal avenues to address custody or visitation issues. Your attorney can help you navigate these challenges and advocate for your rights as a parent.

What support services are available to me as I navigate domestic violence charges?

In addition to legal representation, you may benefit from accessing support services such as counseling, stress management, and rehabilitation programs. Your attorney can connect you with resources within the military community or recommend external support services to assist you during this challenging time.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and experienced attorneys at MJA have defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including domestic violence. We will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 473-3665 for a free consultation.