UCMJ Article 128b: Domestic Violence
At Bilecki Law Group, we defend service members against charges of domestic violence under Article 128b of the UCMJ. There are always two sides of the story, and we are ready to hear yours and fight for your defense.
Facing an Article 128b charge? See how our domestic violence defense lawyers handle these cases. Related results: Bilecki Wins Full Acquittal in Army Captain’s Domestic Violence and Strangulation Trial and Marine Lieutenant’s Strangulation Investigation Ends Without Charges or Adverse Action. Past results do not guarantee a similar outcome.
How To Fight Back And Win Against Charges of Domestic Violence?
Now, we defend service members against charges of domestic violence for two specific reasons. The first is that our legal system presupposes and demands an adequate defense for all charges in order to work. That’s just how justice works. The second reason is that we see absurd, exaggerated and in many cases, completely fabricated accusations of domestic violence with some regularity.
This means that an innocent man or woman can face devastating consequences if no one investigates and presents the defense. Yes, there are men who wrongly accuse a woman of domestic violence. This isn’t just a problem involving one gender. Regardless of gender, if you are charged with domestic violence under Article 128b, you need to get ready for a fight. Your career, reputation, and freedom may be at stake.
Charges of domestic violence come with a strong societal weight of presumed guilt. That’s because when people hear the term, “domestic violence”, it conjures up some drunken guy in a wife beater t-shirt assaulting his wife because dinner was late. It’s a terrible burden to bear when charged and a damn Greek tragedy if you are completely innocent. That social stigma is not the legal standard. You are presumed innocent, and the government bears the burden of proof.
To protect your career, retirement, and freedom, you need a defense prepared to fight like hell to bring the truth and the real story into the case. You do not have to prove your innocence or persuade anyone that your account is merely plausible. The government must prove its charge beyond a reasonable doubt. You need a skilled attorney who knows how to take the fight to the military justice system and do so unashamedly.
Do Not Wait for the Government To Build Your Defense
Namesake and founder, Tim Bilecki, spent years inside the military justice system as a senior defense counsel for the Army. That experience informs how we challenge the government’s case and prepare the evidence supporting your defense.
The cases we see in the military with regards to domestic violence do not all fit the “redneck with the wife beater” stereotype. It may be a young couple who were drinking, arguing, and both did things they regret in the morning. It may be a veteran couple of multiple deployments dealing with the stress and trauma that came with those deployments. It may also involve a romantic partner making an accusation that the evidence does not support. Those possibilities have to be investigated. None of them allows us to assume guilt, innocence, or a motive without examining the facts.
Those are the cases we see, and young men and women can pay a terrible price when the facts are not properly tested. If you are facing charges of domestic violence under Article 128b, please don’t take it lightly. You may feel that you are up against a mountain of presumed guilt. Reach out to us for a free initial consultation. We’ll shoot you straight about what you are facing, discuss urgent issues, and assess whether we are the right firm for your case. We’ve witnessed enough innocence firsthand to know you deserve to be heard. Reach out to us. We’ll listen, and if you are ready to fight like hell for your career, so are we.
What Is Article 128b Of The UCMJ?
Article 128b of the UCMJ governs domestic violence charges against members of the United States Armed Services. It includes violent offenses against a spouse, intimate partner, dating partner or immediate family member, as well as specified offenses against people or property committed with the required intent to threaten or intimidate a protected partner or family member. The particular charged form determines what the government must prove. The government must prove the charged offense beyond a reasonable doubt.
Congress added dating partners to Article 128b on 22 December 2023. The alleged offense date determines which version applies. A dating partner is someone who is or has been in a social relationship of a romantic or intimate nature with the accused. The assessment considers the relationship’s length and type, the frequency of interaction, and the extent of physical intimacy or sexual contact. The weight given to those factors depends on the circumstances.
The alleged offense date determines which version applies
Article 128 covers assault offenses more generally. Article 128b requires the particular relationship or intent identified in its charged form; the victim of an intimidation offense can be a third person, and the target can be property, including an animal.
What Specific Charges Reside Under Article 128b of the UCMJ?
There are six forms of domestic violence described below, along with what must be proved and the applicable punishments. For military personnel, an allegation can quickly become a command issue as well as a criminal investigation. We need to address both the accusation and any orders or administrative action that follow it.
Service members can face serious career and financial consequences from an allegation. Moreover, military couples face stresses that are unique to military service. That’s deployments, frequent relocations, and long periods apart. Military relationships are hard, but stress does not excuse unlawful violence. If you are facing these charges right now, you could lose more than your partner. Remember, it does not have to be a spouse. A qualifying intimate partner, dating partner, or immediate family member can satisfy the relationship element.
- Committing a violent offense
- An offense against a person intended to threaten or intimidate
- An offense against property intended to threaten or intimidate
- Violating a protection order to threaten or intimidate
- Violating a protection order to commit a violent offense
- Assault by strangulation or suffocation
Committing a Violent Offense
The prosecution must prove that you committed a violent offense and that it was committed against your spouse, intimate partner, dating partner, or immediate family member. It must also prove the elements of the underlying violent offense. When an applicable allegation concerns an immediate family member under sixteen, that additional fact must be proved. Article 128b is not limited to cases involving children.
An Offense Against a Person Intended To Threaten or Intimidate
The prosecution must prove that you committed an act violating the UCMJ against a person and did so with the intent to threaten or intimidate your spouse, intimate partner, dating partner, or immediate family member. The person against whom the act was committed need not be that partner or family member.
An Offense Against Property Intended To Threaten or Intimidate
The prosecution must prove that you committed an act violating the UCMJ against property, including an animal, and did so with the intent to threaten or intimidate your spouse, intimate partner, dating partner, or immediate family member.
Violating a Protection Order To Threaten or Intimidate
The prosecution must prove that a lawful protection order was in place, that you violated it, and that you acted with the intent to threaten or intimidate your spouse, intimate partner, dating partner, or immediate family member. A violation alone does not establish the particular intent required for this Article 128b offense. Other punitive articles may apply to a violation under their own elements.
Violating a Protection Order To Commit a Violent Offense
The prosecution must prove that a lawful protection order was in place, that you violated it, and that you acted with the intent to commit a violent offense against your spouse, intimate partner, dating partner, or immediate family member.
Assault by Strangulation or Suffocation
The prosecution must prove that you assaulted your spouse, intimate partner, dating partner, or immediate family member by strangling or suffocating that person, and that the act involved unlawful force or violence. When the greater punishment for a child under sixteen is charged, that additional age allegation must be proved.
Article 128b does not have one confinement formula for every charge. For the provisions covering a violent offense, an offense intended to threaten or intimidate, or an offense against property intended to threaten or intimidate, the maximum is generally the underlying offense’s confinement maximum plus three years. That addition does not apply where the underlying maximum includes death or life imprisonment. A protection-order violation committed with intent to threaten or intimidate carries a three-year maximum; one committed with intent to commit a violent offense carries five years. Assault by strangulation or suffocation carries eight years, or eleven years when committed upon a child under sixteen. These provisions can also authorize a dishonorable discharge, total forfeitures, and reduction of an enlisted member to E-1. The offense date matters, particularly for conduct before the punishment provisions took effect on 26 January 2022. We need the actual subsection and alleged conduct to tell you what you face.
Maximum Punishments and Sentencing Parameters
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must sentence within the applicable confinement range unless specific facts justify a departure. If the judge departs, the record must contain a written statement explaining the factual basis. These ranges do not replace the lawful maximum punishment for the offense or the court-martial’s jurisdictional limits. For offenses assigned sentencing criteria instead of a category, the judge must consider those criteria.
The ranges below are stated in months and are limited where the offense has a lower confinement maximum. A special court-martial can impose no more than its own authorized limit, even when an offense or category allows more. The maximum is not a prediction of the sentence in your case.
| Offense | Maximum confinement | Category or criteria | Confinement range in months |
|---|---|---|---|
| Violent offense against a spouse, intimate partner, dating partner or immediate family member | Underlying offense maximum plus 3 years, except where the underlying maximum is death or life | Dependent on underlying offense | Depends on underlying offense |
| UCMJ offense against a person or property, including an animal, with intent to threaten or intimidate the specified family member or partner | Underlying offense maximum plus 3 years, except where the underlying maximum is death or life | Dependent on underlying offense | Depends on underlying offense |
| Protection-order violation with intent to threaten or intimidate | 3 years | Category 2 | 1–36 |
| Protection-order violation with intent to commit a violent offense | 5 years | Category 2 | 1–36 |
| Strangulation or suffocation of the specified family member or partner: child under 16 | 11 years | Category 3 | 30–120 |
| Strangulation or suffocation of the specified family member or partner: other cases | 8 years | Category 2 | 1–36 |
Reduction to E-1 applies to enlisted personnel. Dismissal, rather than a dishonorable or bad-conduct discharge, is the authorized punitive separation for commissioned officers, including commissioned warrant officers, and cadets and midshipmen. The authorized punishment also depends on the offense date and court-martial forum.
Frequently Asked Questions About Article 128b
What Is the Maximum Possible Punishment for Domestic Violence?
The maximum depends on the specific Article 128b offense. For the violent-offense and intimidation variants, confinement is generally the maximum for the underlying offense plus three years; that increase does not apply when the underlying maximum is death or life. A protection-order violation with intent to threaten or intimidate carries up to three years, and one with intent to commit a violent offense carries up to five years. Strangulation or suffocation carries up to eleven years when the victim is under sixteen and eight years in other cases. The offenses also authorize a dishonorable discharge and forfeiture of all pay and allowances; reduction to E-1 applies to enlisted personnel. The offense date and forum still control the applicable punishment.
Can the Evidence Support a Lesser Assault Charge?
That depends on the charged offense and the evidence. A failure of proof on an aggravating element or a required relationship may affect what offense can be established. Our first priority is to win your case outright. We also evaluate whether a lesser offense, dismissal of a specification, or a negotiated resolution serves your interests. No particular reduction can be promised.
Can Self-Defense or Defense of Another Defeat the Charge?
Yes, when the facts satisfy the applicable legal requirements. Self-defense and defense of another can justify conduct that would otherwise be an assault. The threat, the force used, and whether the right to use force was lost or regained all matter. Merely describing an incident as mutual fighting does not resolve those questions. We assess the complete sequence of events under the governing rule.