Text.
"Any person subject to this chapter who--
(1) resists
apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement;
shall be
punished as a court-martial may direct."
Elements.
(1) Resisting
apprehension.:
(a) That a certain
person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused actively resisted the apprehension.
(2) Flight from
apprehension.:
(a) That a certain
person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused fled from the apprehension.
(3) Breaking
arrest.:
(a) That a certain
person ordered the accused into arrest;
(b) That said person was authorized to order the accused into arrest;
and
(c) That the accused went beyond the limits of arrest before being
released from that arrest by proper authority.
(4) Escape from
custody.:
(a) That a certain
person apprehended the accused;
(b) That said person was authorized to apprehend the accused; and
(c) That the accused freed himself or herself from custody before being
released by proper authority.
(5) Escape from
confinement.:
(a) That a certain
person ordered the accused into confinement;
(b) That said person was authorized to order the accused into
confinement; and
(c) That the accused freed himself or herself from confinement before
being released by proper authority.
Note: If the escape was post-trial confinement, add the following
element
(d) That the confinement was the result of a court-martial conviction.
Explanation.
(1) Resisting
apprehension.:
(a) Apprehension.
Apprehension is the taking of a person into custody. See
R.C.M. 302 in the Manual Of Courts Martials
(linked to a 3.5M PDF).
(b) Authority to apprehend. See
R.C.M. 302(b) in the Manual Of Courts Martials
(linked to a 3.5M PDF) concerning who may apprehend. Whether the status of a
person authorized that person to apprehend the accused is a question of
law to be decided by the military judge. Whether the person who
attempted to make an apprehension had such a status is a question of
fact to be decided by the fact finder.
(c) Nature of the resistance. The resistance must be active, such as
assaulting the person attempting to apprehend. Mere words of opposition,
argument, or abuse, and attempts to escape from custody after the
apprehension is complete, do not constitute the offense of resisting
apprehension although they may constitute other offenses.
(d) Mistake. It is a defense that the accused held a reasonable belief
that the person attempting to apprehend did not have authority to do so.
However, the accused's belief at the time that no basis exists for the
apprehension is not a defense.
(e) Illegal apprehension. A person may not be convicted of resisting
apprehension if the attempted apprehension is illegal, but may be
convicted of other offenses, such as assault, depending on all the
circumstances. An attempted apprehension by a person authorized to
apprehend is presumed to be legal in the absence of evidence to the
contrary. Ordinarily the legality of an apprehension is a question of
law to be decided by the military judge.
(2) Flight from
apprehension.: The flight must be active, such as running or driving
away.
(3) Breaking
arrest.:
(a) Arrest. There
are two types of arrest: pretrial arrest under
Article 9 (see R.C.M. 304 in the Manual Of Courts Martials
(linked to a 3.5M PDF)) and arrest under
Article 15 (see
paragraph 5c.(3), Part V, in the Manual Of Courts Martials
(linked to a 3.5M PDF)). This article prohibits breaking any
arrest.
(b) Authority to order arrest. See
R.C.M. 304(b) in the Manual Of Courts Martials
(linked to a 3.5M PDF) and
paragraphs 2 and 5b, Part V, MCM concerning authority to order
arrest.
(c) Nature of restraint imposed by arrest. In arrest, the restraint is
moral restraint imposed by orders fixing the limits of arrest.
(d) Breaking. Breaking arrest is committed when the person in arrest
infringes the limits set by orders. The reason for the infringement is
immaterial. For example, innocence of the offense with respect to which
an arrest may have been imposed is not a defense.
(e) Illegal arrest. A person may not be convicted of breaking arrest if
the arrest is illegal. An arrest ordered by one authorized to do so is
presumed to be legal in the absence of some evidence to the contrary.
Ordinarily, the legality of an arrest is a question of law to be decided
by the military judge.
(4) Escape from
custody.:
(a) Custody.
"Custody" is restraint of free locomotion imposed by lawful
apprehension. The restraint may be physical or, once there has been a
submission to apprehension or a forcible taking into custody, it may
consist of control exercised in the presence of the prisoner by official
acts or orders. Custody is temporary restraint intended to continue
until other restraint (arrest, restriction, confinement) is imposed or
the person is released.
(b) Authority to apprehend. See subparagraph (1)( b) above.
(c) Escape. For a discussion of escape, see subparagraph c(5)( c),
below.
(d) Illegal custody. A person may not be convicted of this offense if
the custody was illegal. An apprehension effected by one authorized to
apprehend is presumed to be lawful in the absence of evidence to the
contrary. Ordinarily, the legality of an apprehension is a question of
law to be decided by the military judge.
(e) Correctional custody. See
paragraph 70.
(5) Escape from
confinement.:
(a) Confinement.
Confinement is physical restraint imposed under
R.C.M. 305, 1101 in the Manual Of Courts Martials
(linked to a 3.5M PDF), or
paragraph 5b, Part V, MCM. For purposes of the element of post-trial
confinement (subparagraph b(5)(d), above) and increased punishment
there from (subparagraph e(4), below), the confinement must have been
imposed pursuant to an adjudged sentence of a court-martial and not as a
result of pretrial restraint or nonjudicial punishment.
(b) Authority to order confinement. See
R.C.M. 304( b) in the Manual Of Courts Martials
(linked to a 3.5M PDF). 1101; and
paragraphs 2 and 5b, Part V, MCM concerning who may order
confinement.
(c) Escape. An escape may be either with or without force or artifice,
and either with or without the consent of the custodian. However, where
a prisoner is released by one with apparent authority to do so, the
prisoner may not be convicted of escape from confinement. See also
paragraph 20c(1)(b). Any completed casting off of the restraint of
confinement, before release by proper authority, is an escape, and lack
of effectiveness of the restraint imposed is immaterial. An escape is
not complete until the prisoner is momentarily free from the restraint.
If the movement toward escape is opposed, or before it is completed, an
immediate pursuit follows, there is no escape until opposition is
overcome or pursuit is eluded.
(d) Status when temporarily outside confinement facility. A prisoner who
is temporarily escorted outside a confinement facility for a work detail
or other reason by a guard, who has both the duty and means to prevent
that prisoner from escaping, remains in confinement.
(e) Legality of confinement. A person may not be convicted of escape
from confinement if the confinement is illegal. Confinement ordered by
one authorized to do so is presumed to be lawful in the absence of
evidence to the contrary. Ordinarily, the legality of confinement is a
question of law to be decided by the military judge.
Lesser included offenses.
(1) Resisting
apprehension.:
Article 128--assault; assault consummated by a battery
(2) Breaking
arrest.:
(a)
Article 134--breaking restriction
(b)
Article 80--attempts
(3) Escape from
custody.:
Article 80--attempts
(4) Escape from
confinement.:
Article 80--attempts
Maximum punishment.
(1) Resisting
apprehension.: Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(2) Flight from apprehension.: Bad-conduct discharge, forfeiture of all
pay and allowances, and confinement for 1 year.
(3) Breaking arrest.: Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 6 months.
(4) Escape from custody, pretrial confinement, or confinement on bread
and water or diminished rations imposed pursuant to
Article 15.: Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(5) Escape from post-trial confinement.: Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 5 years.
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