Blogs from June, 2024

From the jilted ex-lover, to the stranger leering at the attractive new neighbor, to the maniac with road-rage or the violent sociopath that turns an online date into a romantic obsession, Hollywood is well-known for its psychological thrillers and “stalker” movies. While Hollywood movies are certainly over the top and often unrealistic, stalking is a serious offense under the UCMJ that can not only end a service member’s career but result in significant punishments.

When your military career, future, and freedom are on the line, you need an experienced law firm in your corner. The attorneys at MJA have decades of experience and have defended service members charged with some of the most serious offenses under the UCMJ. Contact one of our military defense lawyers today to learn more.

Background and Intent Behind Article 130, UCMJ

Article 130 criminalizes service members from engaging in any course of conduct that would cause another person to reasonably fear death or bodily harm. Unlike in the movies, however, stalking doesn’t simply mean following a person around. Prohibited behavior can include any type of conduct that induces reasonable fear in another person and can include the use of surveillance, emails, texts or other electronic communications.

The offense of stalking has become even more serious given that it is now considered a “covered offense” under the UCMJ and will be reviewed by the Office of Special Trial Counsel (OSTC). Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military prosecutors who handle only serious criminal offenses. The OSTC has the authority to prosecute the following “covered offenses:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date. When going up against the best prosecutors in the Department of Defense, service members facing court-martial for stalking need to have the very best legal defense representation.

Elements of Article 130, UCMJ

To be guilty of violating Article 130, UCMJ, the Government must prove three elements:

1. That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner;

2. That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner; and

3. That the accused’s conduct induced reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner.

Let’s break down the important definitions from those elements.

Definitions and Explanation

First, in order to be a violation of Article 130, the government must prove that an accused engaged in a “course of conduct directed at a specific person.” Stalking is not a one-time incident where another person feels uncomfortable, but rather a series of repeated (two or more) actions, comments, threats (express or implied, written or verbal), or pattern of conduct directed at a specific person. Prohibited behavior can include any type of conduct including the use of surveillance, emails, texts or other electronic communications.

It’s important to note that the person who is the subject of the stalking does NOT have to be another service member. Rather, stalking can also be committed if the conduct is directed against the person’s immediate family (e.g. spouse, parent, brother or sister, child, etc) or against “any other person living in his or her household and related to him or her by blood or marriage.”

The subject of the stalking may also be the person’s “intimate partner” which can include a former spouse, a person who shares a child in common with the specific person, a person who lives with the person, or someone who is in a romantic relationship with the person.

Next, an accused’s course of conduct must cause a reasonable person to fear death or bodily harm. This is one of the most important elements of stalking because it requires the jury to determine if the alleged fear was reasonable. If it was NOT reasonable for the person to fear death or bodily harm, then there is no violation of Article 130, UCMJ. Keep in mind, however, that “bodily harm” is a very broad term and is defined as “offensive touching of another, however slight, including sexual assault.” If the person reasonably feared that would be touched, even slightly, then that element of the offense is met.

Finally, in order for there to be a violation of Article 130, the government must prove that the accused knew, or should have had known, that the specific person would be placed in reasonable fear of death or bodily harm. To prove “should have known,” the government must establish that the circumstances were such as would have caused a reasonable person in the same or similar circumstances to know that the alleged victim would be placed in reasonable fear of death or bodily harm to themselves or another due to the accused’s course of conduct. This determination must be based on all relevant facts and circumstances.

Defenses

Any defense under Article 130 is highly fact specific. A stalking charge may be defeated if the defense can show that the accused did not engage in a “course of conduct,” that the alleged victim did not have a reasonable fear of death or bodily injury, or that the accused did not have (and should not have had) knowledge that his or her actions would place another person in fear of death or injury. This “mens rea” or knowledge requirement is particularly important for the defense. A skillful defense attorney can identify deficiencies in the government’s case and ensure that all relevant facts are brought to light.

Maximum Punishment

The maximum punishment for violating Article 130 is extremely serious and may include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. Stalking is considered a Category 2 offense under the Manual for Courts-Martial’s new sentencing guidelines and therefore requires a sentence of 1-36 months of confinement for any conviction.

Protect Your Freedom and Military Career

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, discipline, and court-martial for the most serious offenses under the UCMJ and will ensure that every defense is aggressively pursued on your behalf. Contact us today for a free consultation.