Part IV · Punitive Articles

Article 97. Unlawful detention · MCM ¶ 25

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.
(b) Elements.
(1) That the accused apprehended, arrested, or confined a certain person; and
(2) That the accused unlawfully exercised the accused’s authority to do so.
(c) Explanation.
(1) Scope. This article prohibits improper acts by those empowered by the UCMJ to arrest, apprehend, or confine. See Articles 7 and 9; R.C.M. 302, 304, 305, and 1103, and paragraph 2 and subparagraph 5.b., Part V. It does not apply to private acts of false imprisonment or unlawful restraint of another’s freedom of movement by one not acting under such a delegation of authority under the UCMJ.
(2) No force required. The apprehension, arrest, or confinement must be against the will of the person restrained, but force is not required.
(3) Defense. A reasonable belief held by the person imposing restraint that it is lawful is a defense.
(d) Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(e) Sample specification. In that __________ (personal jurisdiction data) (subject-matter jurisdiction, if required), did, (at/on board—location), on or about _____ 20 __, unlawfully (apprehend __________) (place __________ in arrest) (confine __________ in __________).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
3a-25-1UNLAWFUL DETENTION
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

DD, TF, 3 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, unlawfully (apprehend __________) (place __________ in arrest) (confine __________ in __________).

Elements

(1) That (state the time and place alleged), the accused (apprehended) (arrested) (confined) (state the name of the person allegedly detained); and

(2) That the accused unlawfully exercised (his) (her) authority to do so.

Definitions & other instructions

(“Apprehension” means to take a person into custody; that is, to place a restraint on a person’s freedom of movement.) (“Arrest” is the moral restraint imposed upon a person by oral or written orders, directing that person to remain within certain specified limits.) (“Confinement” is the physical restraint of a person within a confinement facility or under guard.) There does not have to be actual force exercised in imposing the (apprehension) (arrest) (confinement), but there must be restraint of another’s freedom of movement. The offense can only be committed by a person who is duly authorized to (apprehend) (arrest) (confine) but exercises the authority unlawfully.

NOTE 2. Lawfulness of apprehension in issue. When it is clear as a matter of law that the lawfulness of the alleged apprehension, arrest, or confinement may be resolved as an interlocutory question, the military judge should do so and advise the members accordingly. However, if there is a factual dispute as to the lawfulness of the alleged detention, that dispute must be resolved by the members in connection with their determination of guilt or innocence.
NOTE 3. Mistake of fact. The accused’s reasonable belief that the detention was lawful is a defense. If the evidence raises such a defense, the judge should give an appropriately tailored instruction using Instruction 5-13-2, IGNORANCE OR MISTAKE - WHEN ONLY GENERAL INTENT IS IN ISSUE.
Source: Instruction 3a-25-1 · view original on jagcnet.army.mil