Domestic Violence Prosecution Under the UCMJ
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Domestic violence is a separate UCMJ offense, Article 128b, added by the FY2019 National Defense Authorization Act (Pub. L. 115-232, August 13, 2018) and effective January 1, 2019. It covers five kinds of conduct directed at a spouse, intimate partner, dating partner, or immediate family member, including strangulation or suffocation. It is a covered offense, so for offenses committed after December 27, 2023, a special trial counsel decides whether to prefer and refer charges. A qualifying conviction can also trigger the federal firearms ban for a “misdemeanor crime of domestic violence” (18 U.S.C. § 922(g)(9)), which has no exception for official military use.
What Article 128b covers
Any person who:
- “commits a violent offense against a spouse, an intimate partner, a dating partner, or an immediate family member of that person”;
- with intent to threaten or intimidate such a person, commits a UCMJ offense against any person, or against any property, “including an animal”;
- with that intent, violates a protection order;
- with intent to commit a violent offense against such a person, violates a protection order; or
- “assaults a spouse, an intimate partner, a dating partner, or an immediate family member of that person by strangling or suffocating”
may be punished as a court-martial directs (Article 128b(a)).
Who is covered. The terms come from Article 130 (Article 128b(b)). An “intimate partner” includes a former spouse, a person who shares a child with the accused, a person who cohabits or cohabited as a spouse, or a person in a romantic or intimate social relationship judged by its length, type, and frequency of interaction. A “dating partner” is a person who “is or has been in a social relationship of a romantic or intimate nature”, considering length, type, frequency of interaction, and “the extent of physical intimacy or sexual contact”. The term “immediate family” means a spouse, parent, sibling, child, or person in loco parentis, or another person in the household related by blood or marriage (Article 130).
Dating partners. Pub. L. 118-31 (December 22, 2023) inserted “a dating partner” into Article 128b, and Executive Order 14130 (December 20, 2024) conformed the Manual’s paragraph on Article 128b. The order does not make punishable conduct that was not punishable when committed.
Before 2019. Conduct before January 1, 2019, was charged under other articles such as Article 128, assault; Article 128b took effect “on January 1, 2019, immediately after the coming into effect of the amendments made by the Military Justice Act of 2016” (Pub. L. 115-232, § 532(b)).
Maximum punishments
Under Part IV, ¶78a.d, as rewritten by Executive Order 14130, every form carries a dishonorable discharge and total forfeitures, with confinement as follows:
| Form | Maximum confinement |
|---|---|
| Violent offense against a covered person | Maximum for the underlying offense plus 3 years, except offenses already punishable by death or life |
| UCMJ offense against any person, with intent to threaten or intimidate a covered person | Underlying maximum plus 3 years, same exception |
| Offense against property, including an animal, with that intent | Underlying maximum plus 3 years, same exception |
| Violating a protection order with intent to threaten or intimidate | 3 years |
| Violating a protection order with intent to commit a violent offense | 5 years |
| Strangulation or suffocation of a covered person | 8 years; 11 years for aggravated assault by strangulation or suffocation of a child under 16 |
In non-capital cases in which all findings of guilty are for offenses committed after December 27, 2023, the military judge sentences within these maxima under the sentencing parameters; see what punishments a court-martial can impose.
Who decides to prosecute
Article 128b is on the list of covered offenses (10 U.S.C. § 801(17)(A)). For covered offenses committed after December 27, 2023, a special trial counsel has exclusive authority to refer charges, and that decision binds the convening authority; if the special trial counsel declines, a commander may act but may not refer those charges to a special or general court-martial (Article 24a(c)(3)-(5)). Commanders keep other tools, such as military protective orders, described in military protective orders and restraining orders.
Evidence when the victim does not testify
- Marital privilege. Under M.R.E. 504(c)(2)(A), neither the spousal-incapacity privilege nor the confidential-communications privilege applies in “proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either”.
- Other evidence. Statements, records, photographs, and recordings may be offered under the Military Rules of Evidence, subject to the hearsay rules and the accused’s confrontation rights; the judge decides admissibility case by case.
The federal firearms ban
The statute. 18 U.S.C. § 922(g)(9) bars possession of a firearm or ammunition by a person convicted of a “misdemeanor crime of domestic violence” as defined in 18 U.S.C. § 921(a)(33). The government official-use exemption in 18 U.S.C. § 925(a)(1) expressly excludes § 922(g)(9), so a person within the ban may not possess even government-issued weapons.
The relationship need not be an element. In United States v. Hayes, 555 U.S. 415 (2009), the Supreme Court held that the government must prove the domestic relationship beyond a reasonable doubt in a § 922(g)(9) prosecution, but that “relationship, while it must be established, need not be denominated an element of the predicate offense.” A conviction under Article 128 for an assault on a spouse can therefore raise the § 922(g)(9) question even though Article 128 has no relationship element.
Whether a court-martial conviction qualifies turns on the statutory definition of “misdemeanor crime of domestic violence” and on whether a court-martial conviction counts as a qualifying conviction; that is a question of federal firearms law, discussed with other collateral effects in the collateral consequences of a court-martial conviction. Nonjudicial punishment under Article 15 is not a court-martial conviction.
Help for abused family members
When a member is convicted of a dependent-abuse offense and the court-martial sentence separates the member or forfeits all pay and allowances, or the member is administratively separated on a basis that includes dependent abuse, the abused spouse or former spouse and children may receive transitional compensation for 12 to 36 months (10 U.S.C. § 1059(b), (e)(2); see court-martial and family impact). A conviction alone, without separation or total forfeiture, does not qualify.
Sources
- 10 U.S.C. § 928b, Article 128b, Domestic violence, with effective-date note (Cornell LII)
- 10 U.S.C. § 930, Article 130, Stalking (definitions) (Cornell LII)
- 10 U.S.C. § 824a, Article 24a (Cornell LII)
- 18 U.S.C. § 922, Unlawful acts (Cornell LII)
- 18 U.S.C. § 925, Exceptions: Relief from disabilities (Cornell LII)
- United States v. Hayes, 555 U.S. 415 (2009) (Library of Congress, U.S. Reports)
- 10 U.S.C. § 1059 (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶78a; M.R.E. 504
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex § 3(b)-(g) (¶78a)
This article is general information about military law, not legal advice for any individual case.