Domestic Violence is Now a Distinct Offense in the UCMJ

Until last year, domestic violence was not a recognized crime under the Uniform Code of Military Justice (UCMJ). Servicemembers accused of domestic abuse could be charged under the UCMJ, but they’d face a variety of different charges. Some would be court-martialed for assault, while others were charged with rape or maiming.

In 2018, the Uniform Code of Military Justice was formally amended to include domestic violence as a distinct and recognized offense. A member of the military accused of abusing his or her spouse, children, or family can face military criminal charges for domestic violence.

UCMJ Article 128

Under the newly amended UCMJ, domestic violence is formally classified as a type of assault. Specifically, Article 128b provides that any person who:

• Commits a violent offense against a spouse, an intimate partner, or an immediate family member
• With the intent to threaten, intimidate, or commit a violent offense against that person

Has committed assault and shall be punished as a court-martial may direct.

The military’s domestic violence law casts a wide net of protections. All immediate family members are covered, as well as intimate partners. UCMJ 128b doesn’t just apply when someone is physically harmed. It also covers incidents where a servicemember intends to threaten or intimidate another person. This can include psychological and emotional conduct.

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assualt in the Armed Forces

In years past, allegations of sexual abuse and misconduct would be handled by a general court-martial. They didn’t get the attention they needed or deserved. The procedure for handling sexual assault put both victims and the accused at a disadvantage. In 2018, a new panel was formed for the specific purpose of handling sexual assault matters.

The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assualt in the Armed Forces (DAC-IPAD) will:

• Hold hearings
• Take testimony
• Consider evidence, and
• Collect data from necessary federal agencies or departments.

The military is also reviewing the possibility of expanding protections and resources for victims of domestic violence.

What Does a Domestic Violence Conviction Mean?

A court-martial has the discretion to determine which penalties are most appropriate for a servicemember convicted of domestic violence under UCMJ 128a. Potential consequences can include:

• Forfeiture of pay
• Confinement
• Restraining order
• Reduction of rank, and
• Dishonorable discharge.

Members of the military are also subject to state and federal criminal and civil laws. A servicemember accused of domestic violence may also be charged with a crime by the state and face penalties there, as well.

Allegations of domestic violence – with or without a conviction – can also have consequences at home. Spouses can ask for a divorce or petition for sole custody of children. Family law courts tend to err on the side of caution when allegations of abuse are made and children are involved. Judges will do what they believe is in the best interest of alleged victims and children. If there’s any evidence that the allegations are true, a servicemember risks losing his family and children. Given the seriousness of these situations, it’s best to contact legal counsel for more advice. Contact San Diego Military Defense Attorneys today for assistance.