Assault is a violation of both the Uniform Code of Military Justice (UCMJ) and California state law. This means that members of the military accused of assault can be charged with a crime at both the federal and state levels. As a result, the consequences of assault can be much more devastating for military personnel.
Are you a member of the military who has been accused of assault? You have the right to defend yourself, and the Law Office of Vikas Bajaj can help. Our military defense attorneys have more than 19 years of experience handling the most complex criminal matters in San Diego. We can help you fight to protect your future. Call us today to schedule a free consultation.
Understanding the Crime of Assault
Assault is the crime of threatening or attempting to cause physical harm to another person. While the primary concept of the crime is the same, it is defined slightly differently by state and military law.
California Penal Code § 240: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
Article 128 of the UCMJ: “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….”
Put another way, assault is the attempt to hurt another person. The attempt to hurt that person does not have to be successful. However, you must have the present ability to cause them physical harm.
Example 1: You call someone on the phone and threaten to hurt them. You would not be guilty of assault, because you do not have the present ability to hurt them.
Example 2: You approach a fellow serviceman and threaten to punch him in the face. However, you do not take any steps toward him in a threatening manner, nor do you raise your fist. You would not be guilty of assault because you did not attempt to cause physical harm.
Example 3: A civilian upsets you in a local bar. You finish your beer and then throw the bottle toward his head. You would likely be charged with assault. The fact that you missed the civilian and did no harm is irrelevant. You attempted to cause physical harm and had the ability to do so.
Example 4: You become upset with an officer in your command. One evening, you approach him and begin yelling at him. You raise your fist and continue to move toward him in a threatening manner. You would likely be charged with assault because you (a) offered to cause physical harm and (b) had the present ability to do so.
Jurisdiction Over Crimes of Assault
California: When can a member of the military face criminal charges for assault under California law? California only has jurisdiction for crimes committed within the state. If you are accused of committing an assault while not in California, you typically cannot be tried for the crime in the state.
Military: As a member of the military, you are subject to all rules and regulations provided in the UCMJ. As a result, you can face charges for assault in federal military court regardless of where the alleged assault occurred.
Aggravated Assault Under the UCMJ
Simple assault is the term used to refer to the most basic and least aggressive forms of assault. Aggravated assault refers to crimes that involve a dangerous weapon or cause bodily harm. You can be court martialed for aggravated assault if you commit an assault and:
- Use a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
- Intentionally inflict grievous bodily harm (with or without a weapon).
Dangerous Weapon: A dangerous weapon can be defined as any item or device that can cause serious bodily injury or death. This may include:
- Hand tools
- Rocks, and more.
Grievous Bodily Harm: Grievous bodily harm means causing an injury that causes severe damage or injury to another person. Fractures, internal organ damage, burns, and injuries that threaten a person’s ability to live normally will be considered grievous. Minor injuries, such as minor scrapes and bruising, will likely not.
Penalties for Crimes of Assault Under the UCMJ
Assault is punishable by a court martial. If you are convicted, the court martial has the authority to impose penalties that can affect both your military and civilian lives. The severity of any penalties imposed will depend on:
- Where the assault occurred
- Whether any victims suffered bodily harm or death
- Whether a dangerous weapon was used to commit the assault
- Who the victim(s) of the assault are.
Aggravating factors will cause you to face more serious consequences.
Penalties for Simple Assault
Penalties for violations of Article 128(a) of the UCMJ can include:
- Confinement for three months
- Forfeiture of ⅔ of pay for three months
- Loss of rank, and/or
Penalties for Aggravated Assault
Penalties for violations of Article 128(b) or 128(c) of the UMCJ can include:
- Confinement for three to ten years
- Forfeiture of pay for an extended period of time
- Loss of rank
- Fines, and/or
- Dishonorable discharge.
Assault with Aggravating Factors
Assault with aggravating factors can carry much harsher consequences.
Victim Under 16: If the victim of an assault is under the age of 16, penalties at court martial can include:
- Confinement for five years
- Total forfeiture of pay, and/or
- Dishonorable discharge.
Assault of an Officer: If the victim of an assault is a petty, warrant, or commissioned officer, the penalties at court martial can be much more severe. The maximum penalties for assault on an officer include:
- Petty Officer: Six months confinement, forfeiture of pay, bad conduct discharge.
- Warrant: Eighteen months confinement, forfeiture of pay, dishonorable discharge.
- Commissioned: Three years confinement, forfeiture of pay, dishonorable discharge.
Assault of an On-Duty Law Enforcement Officer: If the victim of an assault is a law enforcement officer on duty, the penalties at court-martial can include:
- Two years confinement, forfeiture of pay, dishonorable discharge.
Fighting Military Assault Charges in San Diego
If you are the member of the military and have been accused of assault you can be subject to court martial. While this can be overwhelming, it’s important to remember that you have the right to defend yourself. Defenses should help to excuse, explain, and/or justify your alleged behavior. The stronger your arguments, the harder it will be to prove that you are guilty of the crime. Defenses to assault may include:
- You didn’t intend to physically hurt another person
- You did not have the present ability to cause harm
- You did not use unlawful force or violence, or
- You have been falsely accused.
Hiring an attorney to handle your defense is the best thing you can do if you want to protect your future. At the Law Office of Vikas Bajaj, our military defense attorneys have experience handling both civilian and military criminal matters. We know that your future in the military is at stake and will aggressively fight to protect it. Contact us today to schedule a free consultation. We will review your case, help you understand your rights, and answer the questions you have.