Performance of Duty

A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. R.C.M. 916(c).

Justification is raised only if the accused was performing a legal duty at the time of the offense. In United States v. Rockwood, 52 M.J. 98, 112 (1999), there was no performance of duty defense where neither international law nor television speech by the President imposed on the defendant a duty to inspect Haitian penitentiary for possible human rights violations. In United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993), the killing of a civilian may be justified by a mistake of fact as to victim’s identity.

In United States v. Reap, 43 M.J. 61 (C.A.A.F. 1995), the Court found that the naval custom of bartering goods from department to department in order to avoid delays, red tape, and technicalities incident to acquisition through regular supply channels, is not a defense to wrongful disposition of government property unless it rises to the level of a claim of authority or honest and reasonable mistaken belief of authority.


Obedience to Orders

Orders of military superiors are inferred to be legal. United States v. Cherry, 22 M.J. 284 (C.M.A. 1986). However, a defendant is entitled to the defense where he committed the act pursuant to an order which (a) appeared legal and which (b) the accused did not know to be illegal. R.C.M. 916(d); United States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R.1973).

Defendant’s actual knowledge of illegality required. In United States v. Whatley, 20 C.M.R. 614 (A.F.B.R. 1955), the Court held that where a superior ordered the defendant to violate a general regulation, the defense of obedience to orders will prevail unless the evidence shows not only that the defendant had actual knowledge that the order was contrary to the regulation but, also, that he could not have reasonably believed that the superior’s order may have been valid.

The defense of obedience to orders is unavailable if a man of ordinary sense and understanding would know the order to be unlawful. In United States v. Griffen, 39 C.M.R. 586 (A.B.R. 1968), the Court found no error to refuse request for instruction on defense of obedience to orders where the accused shot PW pursuant to a superior’s order Se also United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973).

The processing of a conscientious objector application does not afford an accused a defense against his obligation to deploy, even if the orders to do so violate service regulations concerning conscientious objections. United States v. Johnson, 45 M.J. 88 (1996).



The Right to Resist Restraint.

Illegal confinement

“Escape” is from lawful confinement only; if the confinement itself was illegal, then no escape. MCM, pt. IV, ¶ 19c(1)(e). Therefore, in United States v. Gray, 20 C.M.R. 331 (C.M.A. 1956), the Court held that there is no crime to escape from confinement where defendant’s incarceration was contrary to orders of a superior commander.

Illegal apprehension or arrest

An individual is not guilty of having resisted apprehension (UCMJ art. 95) if that apprehension was illegal. In United States v. Clark, 37 C.M.R. 621 (A.B.R. 1967), a defendant who was physically detained by private citizen for satisfaction of a debt may, under the standards of self-defense, forcefully resist and seek to escape. In United States v. Rozier, 1 M.J. 469 (C.M.A. 1976), the Court held that by forcibly detaining the defendant immediately following his illegal apprehension, NCOs involved acted beyond the scope of their offices. Conversely, in United States v. Lewis, 7 M.J. 348 (C.M.A. 1979), the Court held that the defendant cannot assert illegality of apprehension as defense to an assault charge when the apprehending official acted within the scope of his office. However, the defendant may resist apprehension if he has no “reason to believe” the person apprehending him is empowered to do so. See United States v. Noble, 2 M.J. 672 (A.F.C.M.R. 1976). See also United States v. Braloski, 50 C.M.R. 310 (A.C.M.R. 1975).


Parental Discipline

The law has clearly recognizes the right of a parent to discipline a minor child by means of moderate punishment.   See United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). In United States v. Brown, 26 M.J. 148 (C.M.A. 1988), the Court concluded that the use of force by parents or guardians is justifiable if the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct; and the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. See also United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1991), aff’d, 37 M.J. 330 (C.M.A. 1993).

An example of what constitutes, “reasonable” is given by the Court in United States v. Scofield, 33 M.J. 857 (A.C.M.R. 1991). The Court held that a parent who spanks a child with a leather belt using reasonable force and thereby unintentionally leaves welts or bruises nevertheless acts lawfully so long as the parent acted with a bona fide parental purpose. However, in United States v. Ward, 39 M.J. 1085 (A.C.M.R. 1994) , the Court made it clear that the right to discipline a child is not a license to abuse a child.

In United States v. Gowadia, 34 M.J. 714 (A.C.M.R. 1992), the Court found that tying a child’s hands and legs and placing a plastic bag over his head went beyond use of reasonable or moderate force allowed in parental discipline. 

In United States v. Gooden, 37 M.J. 1055 (N.M.C.M.R. 1993), the defendant who admitted striking his child out of frustration and as means of punishment, but who did not claim that he honestly believed that force used was not such as would cause extreme pain, disfigurement, or serious bodily injury was not entitled to instruction on parental discipline defense.

In the United States v. Rivera, 54 M.J. 489 (C.A.A.F 2001), evidence of one closed-fist punch, without evidence of actual physical harm, was legally sufficient to overcome the affirmative defense of parental discipline where the punch was hard enough to knock down the accused’s 13-year old son. See also United States v. Robertson, 36 M.J. 190 (C.M.A. 1992); United States v. Ziots, 36 M.J. 1007 (A.C.M.R. 1993).