- consent is generally a defense to assault consummated by a battery
- an assault consummated by battery is defined as bodily harm to another done without legal justification or excuse and without the lawful consent of the person affected; bodily harm is defined as any offensive touching
- as a general matter, consent can convert what might otherwise be offensive touching into non-offensive touching
- the RCMs make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummated by a battery if the accused mistakenly believed that the alleged victim consented and that that belief was reasonable under all the circumstances; a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of a legal excuse
- consent is a well-established defense to simple assault
- consent is generally not a defense to aggravated assault
- junior Marines who appellant supervised could have lawfully consented to being burned with a cigarette by appellant in an apparent attempt to bond with them during a farewell party in the barracks, and the consent of those junior Marines would be a defense to a charge of assault consummated by a battery; although the government might have charged appellant with hazing as a violation of a general order or with aggravated assault, both of which would have eliminated the opportunity to raise a consent defense, it did not, and there was no policy reason to strip appellant of a defense to which he was otherwise legally entitled
CAAF Opinion Digest · III.A.54 · Crimes Pre-2019 offenses
Article 128 - Assault
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
18 digested opinions, 1999–2020 Terms
2020 (October Term)
2017 (October Term)
- any person subject to the UCMJ who attempts or offers with unlawful force to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault under Article 128, UCMJ; and the President has identified the two elements of the offense of assault consummated by a battery as follows: (a) that the accused did bodily harm to a certain person, and (b) that the bodily harm was done with unlawful force or violence
- in this case, assault consummated by a battery was not a lesser included offense of abusive sexual contact by causing bodily harm where the elements of the former offense were not necessarily included in the latter offense and the specification at issue did not allege facts sufficient to state all of the elements of both offenses; assault consummated by a battery requires bodily harm that was done with unlawful force or violence while abusive sexual contact by bodily harm does not
2015 (September Term)
- an individual cannot consent to aggravated assault
- grievous bodily harm was not likely to occur in the context of HIV exposure when there was a 1-in-500 chance of transmission
- under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
- the elements of assault consummated by a battery are: (1) that the accused did bodily harm to a certain person; and (2) that the bodily harm was done with unlawful force or violence; assault consummated by a battery must be done without legal justification or excuse and without the lawful consent of the person affected; as such, lack of consent is an element of the offense of assault consummated by a battery
- the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here
- it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent
2014 (September Term)
- aggravated assault under Article 128(b)(4), UCMJ, contains the following elements: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person, (2) that the accused did so with a certain weapon, means, or force, (3) that the attempt, offer, or bodily harm was done with unlawful force or violence, and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm
- under Article 128, an assault includes an offensive touching; an aggravated assault includes the element that the assault was committed with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; applying a plain English definition of likely, as well appellant court precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a 1–in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of likely to produce death or grievous bodily harm; as a result, appellant’s conviction for aggravated assault is reversed and the lesser included offense of assault consummated by battery is affirmed
- in the area of assault through exposure to HIV, the CAAF has repeatedly has held that the risk of harm need only be more than merely a fanciful, speculative, or remote possibility; this statement is not consistent with the statutory language of Article 128 as generally applied in the context of Article 128, overruling United States v. Weatherspoon, 49 MJ 209, 211 (CAAF 1998), United States v. Klauck, 47 MJ 24, 25 (CAAF 1997); United States v. Joseph, 37 MJ 392, 396–97 (CMA 1993); and United States v. Johnson, 30 MJ 53, 57 (CMA 1990)
- likely must mean the same thing in an Article 128 prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute; in determining whether grievous bodily harm is likely, the ultimate standard remains whether, in plain English, the charged conduct was likely to bring about grievous bodily harm; the question is: was grievous bodily harm the likely consequence of appellant’s sexual activity?
- as to unprotected oral sex, the expert testimony in this case was that the risk of HIV transmission was almost zero; a risk of almost zero does not clear any reasonable threshold of probability; appellant’s conviction for aggravated assault, to wit, engaging in unprotected oral sex without disclosing his HIV-positive status, was legally insufficient because no rational trier of fact could conclude that his conduct was likely to cause grievous bodily harm
- (in the case of protected vaginal sex, the risk of HIV transmission was only remotely possible, meaning that appellant’s conviction for aggravated assault by protected vaginal sex was legally insufficient, and expressly overruling United States v. Klauk, 47 MJ 24, 25 (CAAF 1997)
- as to unprotected vaginal sex, the maximal risk of HIV transmission was 1 in 500; accepting that statistic and consistent with the obligation to construe the evidence in the light most favorable to the prosecution, HIV transmission was not the likely consequence of unprotected vaginal sex; this is so because, in law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence; as a result, appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient
- an attempted aggravated assault charge may lie when an accused knew he was infected with HIV and, using a syringe of his blood or intentionally using his body as a weapon, specifically intended to inflict grievous bodily harm as demonstrated by the evidence at trial; in this case, no evidence of specific intent to inflict grievous bodily harm was presented
- the offense of assault consummated by battery requires that the accused did bodily harm; bodily harm means any offensive touching of another, however slight; in this case, without appellant’s disclosure of his HIV status to his sexual partners, appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent; therefore, he is guilty of assault consummated by battery, as a lesser included offense of aggravated assault
2012 (September Term)
- after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault
2011 (September Term)
- the elements of the offense of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, under Article 128, UCMJ, are: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person; (2) that the accused did so with a certain weapon, means, or force; (3) that the attempt, offer, or bodily harm was done with unlawful force or violence; and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm
- even assuming that the charged specification alleging an assault with intent to commit murder under Article 134, UCMJ, was defective for failing to allege the terminal element of conduct prejudicial to good order and discipline or service discrediting conduct, the specification clearly alleged every element of the lesser included offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, where the specification alleged (1) that appellant did bodily harm to the victim by stabbing him in the hand and chest, (2) that he did so with a knife, (3) that the bodily harm was done with unlawful force or violence, without authorization or justification, and (4) that the weapon was used in a manner likely to produce death or grievous bodily harm - stabbing the victim in the chest; the specification clearly placed appellant on notice of that against which he had to defend, and the government’s theory of the case from beginning to end was that appellant stabbed the victim with a knife in the hand and chest; appellant defended against this theory throughout the trial; appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge; in closing, defense counsel even asked the panel to closely look at Article 128 because that was much more aligned with what happened; through these actions, appellant demonstrated that he was on notice, and his substantial right to be tried only on charges presented in a specification was not violated
2010 (September Term)
- assault consummated by a battery, under Article 128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ
- the offense of assault occurs when any person attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated; the elements for an assault consummated by a battery are: (1) that the accused did bodily harm to a certain person; and (2) that the bodily harm was done with unlawful force or violence
- with respect to the meaning of the two elements of assault consummated by a battery, doing bodily harm means committing any offensive touching of another, however slight, and unlawful force or violence means that the accused wrongfully caused the contact, in that no legally cognizable reason existed that would excuse or justify the contact
- assault consummated by a battery is an LIO of wrongful sexual contact where both offenses require wrongful contact; furthermore, in this case, because appellant was charged with wrongful sexual contact by tapping the victim on the head with his exposed penis, he knew that he had to defend against having caused the victim to make contact with his genitalia without the victim’s permission and with the intent of abusing, humiliating, or degrading the victim; such contact would, at a minimum, be offensive given the ordinary understanding of what it means for contact to be offensive; in fact, in this case, one could transplant the essential facts from the wrongful sexual contact specification, without alteration, into a legally sufficient specification for assault consummated by a battery under Article 128, UCMJ
2008 (Transition Term)
- the four elements of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm under Article 128(b)(1), UCMJ, are: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person; (2) that the accused did so with a certain weapon, means, or force; (3) that the attempt, offer, or bodily harm was done with unlawful force or violence; and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm
- in the context of the aggravated assault offense, the MCM explains that when the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result; the concept of likelihood has two prongs: (1) the risk of harm and (2) the magnitude of the harm; in evaluating risk of the harm, the risk of death or grievous bodily harm must be more than merely a fanciful, speculative, or remote possibility; in evaluating the magnitude of the harm, the consequence of death or grievous bodily harm must be at least probable and not just possible; in other words, death or grievous bodily harm would be a natural and probable consequence of your acts; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low
- in HIV aggravated assault cases, the word, “likely,” is not construed as involving nice calculations of statistical probability; the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body; the probability of infection need only be more than merely a fanciful, speculative, or remote possibility
- statements made by appellant during the providence inquiry that he wore a condom with one woman and barely penetrated her and evidence he introduced at sentencing that due to his low viral load, the risk of his transmitting HIV was extremely low were not in substantial conflict with his pleas of guilty to two specifications of aggravated assault based on his having sexual intercourse with two women without informing them of his HIV-positive status; despite appellant’s claim that his statements and the sentencing evidence substantially conflicted with the risk and magnitude prongs of the likelihood element of aggravated assault, the record revealed no conflict; first, as to the magnitude of harm, both appellant’s statements and his sentencing evidence confirmed that if HIV were transmitted by sexual intercourse, death or grievous bodily harm was a natural and probable consequence; and second, although the risk of transmitting the virus was low on account of appellant’s low viral load and therefore arguably “remote,” the risk was certainly more than fanciful or speculative, as both appellant’s statements and the sentencing evidence confirmed that transmission of the virus during sexual intercourse was possible, even if a condom were worn; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low; while the risk here may have been low, the magnitude of harm was significant; as such, there is no substantial conflict in the record with his pleas
2006
- engaging the safety of a loaded, operable firearm while pointing it at another, as a matter of law, does not remove its character as a dangerous weapon
2001
- testing for legal sufficiency of the evidence, and in the context of this case, the members could have properly rejected the parental discipline defense and concluded that one closed-fist punch to the stomach can cause substantial risk of serious bodily injury; the burden of establishing substantial risk can be met without manifestation of actual harm
- evidence of assault consummated by a battery upon a child was legally sufficient and overcame defense of parental discipline where the members could have properly found that the force used was unreasonable because: (1) the child was struck with a closed-fist in the stomach; (2) there was legally sufficient evidence to conclude that the child was struck with sufficient force so as to fall down, and thus with sufficient force so as to cause a substantial risk of serious bodily injury when punched; and (3) it was reasonably within the common knowledge of the members that a blow to the stomach that is strong enough to knock a 13-year-old down creates a substantial risk of serious bodily injury
- the forcible taking of property belonging to one entity from the person or presence of multiple individuals jointly or constructively possessing the property on behalf of the entity is one offense chargeable under Article 122, UCMJ; however, liability for the lesser-included offense of intentional infliction of grievous bodily harm in violation of Article 128, UCMJ, may lie if the violence committed against one or more of the victims is gratuitous and distinct from the violence necessary to effect the robbery
- assault with a dangerous weapon does not require that the prosecution prove that the person assaulted suffered bodily harm; the critical question is whether appellant’s threatening conduct with the weapon created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm, not whether it caused the injuries
- a claim that the victim’s injury was an accident did not raise a viable defense to an offer-type assault with a dangerous weapon where the question is whether appellant’s threatening conduct with the weapon created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm, not whether it caused the injuries
- where appellant testified that she clearly brandished her knife in the victim’s face in an effort to scare him into leaving her room, and then he jumped her, the Court of Criminal Appeals and the members could draw an inference that a reasonable apprehension of bodily harm was created in the victim by appellant’s conduct
2000
- whether noncommissioned officer is on a frolic of revenge when attempting to apprehend suspect is question of fact for finder of fact; a legally sufficient evidentiary basis exists for deciding that apprehending individual was acting as a noncommissioned officer in the execution of his office where: (1) there was evidence of a soldier being caught in the act of committing a crime; (2) there was evidence of restraint by a noncommissioned officer; and (3) there was evidence the noncommissioned officer employed normal apprehension procedures to terminate this potentially explosive situation
- whether noncommissioned officer divested himself of the protections of office is a question of fact for the members to decide based on the circumstances of the case and under appropriate instructions
- divestiture case law does not establish a per se rule that once an officer engages in misconduct, he can never assert or regain his status or office; legally sufficient evidence to overcome divestiture existed where noncommissioned officer desisted in his illegal conduct and, thereafter, attempted to resolve the issue within appropriate military channels
- while backrubs may, under some circumstances, constitute offensive touching and thus be an assault consummated by a battery under Article 128, UCMJ, the evidence in this case was legally insufficient to sustain a finding of guilty: (1) there was no indication that the alleged victim was unable to protest appellant’s actions; (2) the alleged victim felt comfortable enough to simply shrug appellant off; (3) the alleged victim provided no testimony that any of the various touchings that marked her relationship with appellant were offensive; (4) the only difficulty the alleged victim had with the backrubs was related to appellant’s poor judgment in giving the backrubs openly and notoriously in the work environment; (5) although appellant’s conduct may have violated other social or military norms, his bad judgement did not support a criminal conviction for assault consummated by a battery; and (6) the alleged victim did not report any of appellant’s conduct until she heard about a separate charge against appellant
1999
- the intentional throwing of a 19-month-old child into a pile of clothes on the floor, with sufficient force and from a sufficient height to fracture the child’s femur, is an act that a reasonable factfinder could determine was culpably negligent; the intentional act of throwing the child, combined with the resulting injury, completes the battery and provides legally sufficient evidence to support conviction for assault consummated by a battery on a child under 16 years
- assault with a dangerous weapon requires a general intent to assault the victim, and the mere use of a weapon in the course of an assault satisfies the weapon element of the offense, regardless whether the assailant intended to use the weapon to effect the assault
Source and status
This is a verbatim mirror of the Opinion Digest and opinions tables published by the United States Court of Appeals for the Armed Forces. The headnotes are the court staff’s summaries of the opinions, reproduced as published; they are not the opinions themselves and not this site’s commentary. Nothing here is edited on this site.
Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA54 · Always confirm a holding against the opinion itself (linked from each case name).