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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.
(b) Authority to apprehend. See R.C.M.
302(b) 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 factfinder.
(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) and arrest under Article
15 (see paragraph 5c.(3),
Part V, MCM). This article prohibits
breaking any arrest.
(b) Authority to order arrest. See R.C.M.
304(b) 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, or
paragraph 5b, Part V, MCM. For purposes of the element of post-trial
confinement (subparagraph b(5)(d), above) and increased punishment therefrom
(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). 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.
Next Article > Article
96—Releasing prisoner without proper authority >
Above
Information from Manual for Court Martial, 2002, Chapter 4, Paragraph
19
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