Dunlap, Charles J., Jr.

English

bepress Legal Repository

When does an Unsafe Act Become a Crime?

Duke Law Scholarship Repository

I I I " When does an unsafe act become A Crime? By Colonel CHARLES DUNLAP JR. Can a court label you a killer if you give your car keys to a friend who has been partying? If as a pilot you "buzz" " group of buddies just for laughs? The kind of surprising answcr is "maybe." If someone dies as a result of what you have done. even though you never intended to hurt anyone, you may still find yourself a convict. Of course, the fITst priority when an unintended death occurs is always purely safety to figurc out how to prevent a recurrence. At some point, however, the issue of personal responsibility must be considered. Most people in the Air Force understand that when you do something unsafe, you run the risk of not only burting yourself or others , but also of subjecting yourself to punishment under the Uniform Code of Military Justice (UCMJ). Oftentimes, we would think in terms of a violation of a regulation or a dereliction of duty. Rut if the unsafe act results in a far.ality, other charge~ might arise. Under the UCMJ the unlawful death of another can be charged in a number of different ways. These include murder under Article 118, manslaughter under Article 119, and negligent homicide under Article 134. Murder I n terms of an Article 118 murder charge, the theory of liability most likely to arise in safety situations relates to conduct inherently dangerous to others. Even if intent to kill is abscnt, such acts (or omissions) may still constitute murder if done with Uwanton disregard" for life. The Manual for Courts-MarLial (MCM) tells us that wanton disregard is characterized by "heedlessness of the prohahle consequences of the act or omission, or indiffer-ence to the likelihood of death or great bodily harm." Examples'! The MCM providcs two illustrations. The first is fairly obvious: "throwing a live grenade toward another in jest" - one can easily see how that constirutes wanton disregard for the safety of others. The second example is " bit more subtle, but very relevant to Air Force members. The MCM explicitly says that "flying an aircraft very low over one or more persons to cause alarm" is the kind of activity that could amount to wanton disregard. If such behavior is linked to a death, a murder charge might result. The maximum punishment for a homicide based on wanton disrcgard for human life is a dishonorable dis-charge, confinement for life, forfeirure of all pay and allowances, and reduction .to E-l. Manslaughter In military law the next less serious charge, manslaugh-ter, is divided into two categories: voluntary and involun-tary. Voluntary manslaughter is an intentional killing, but 14 April 2001 TORCH one mitigated because it was committed in the heat of passion. More likely to arise out of a safety incident, however, is a charge of involuntary manslaughter. Involun-tary manslaughter can occur where the death is the result of culpable negligence. Culpable negligence is negligence accompanied by a culpable disregard for the foreseeable consequences to others. The MCM provides a number of examples of involuntary manslaughter that could arise in safety-related caSes. Specifically, acts of culpable negligence may include such things as "negligently conducting target practice so that the bullets go in the way of an inhabited house within range" and "carelessly leaving poisons or dangcrous drugs where they may endanger life." The punishment for involuntary manslaughter can extend to a dishonorable discharge , confmement for 10 years, forfeiture of all pay and allow-ances, and reduction to E-l. egligent HOmDcide Negligent homicide is the least severe charge that direct! y punishes those who cause the death of another human being. Undcr military law, a person can he convicted of this offense for an act (or failure to act) that amounts to simple negligence. Simple negligence occurs when the behavior of a person "exhibits a lack of that degree of care of the safety of others, which a reasonahly careful person would exhibit under the same or similar circumstances." A conviction for negligent homicide can resull even if there is no intent to kill or injure auyonc. In other words, under the UCMJ, military members must act as "reasonably careful" people in all their activities or face potential charges if a death results from something they do or rail to do. The maximum puni shment for negligent homicide is a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to E-t. u.s. vs. Spc. 4 Timothy Kick Neg ligent homicide is somewhat unusual in that rela-tively few civ ilian jurisdictions criminalize condllct based on si mpl e negligence. The Court of Military Appeals (CMA) , however, explained the military ' s rationale for having ~uch an "ffense in the 1979 case of U.S. vs. Spc. 4 Timothy Kick. In upholding Kick's conviction, CMA adopted the rationale of an Army court in an earlier casco That court concluded that in the military the "extensive usc, handling and operatioll or dangerous instruments as weap-ons , exp losives, aircraft, vehicles and the like" necessitated making criminal acl~ hased only on simple negligence. The court concluded that in the armed forces , the "danger to others from careless acts is so great that society demands protection." u.s. vs. Tech. Sgt. Jose L. Martinez The 1993 case of U.S. vs. Tech. Sgl. Jose L. Martinez is especia lly inte resting because it shows how SOIueonc can he convicted of neg ligent homicide where there \vas clearly no intent to harm anyone ill any way. According to court records, J\:lnninez attended a party for a Sergeant Sauceda to cclcbrme Sauceoa's upcoming departure from Zaragoza Air Basc, Spain. Sauceda had a number of drinks and was seen ·'staggering" in the dormitory. A witness \l,Iho spoke to him on the phone said hc sounded "very drunk." Neverthe-less, Martinez gave Sauceda his car keys, and the two drove off the base to go to a disco in downtown Zaragoza. T he court reports t.hat. "travelling toward town at about 3 a.m" the car tlipped over into the oncoming lanes. Sergeant Sauceda was thrown from the vehicle and died as a resu lt of his injuries." The result? Martinez's act of giving Sauceda car keys und er these circumstances was simple negligence. and that negligence was the proximate cause of Sauceda"s death. Martinez was senten ced to a bad conduct discharge, reduction to E- J, and a fine of $1 ,000. In 1995 the a 11-civilian Court of Appeals for the Armed Forces rejected Martinez's appeals and let the conviction stlmd. Serious Consequences Whether or not a parlicular case ,viII be charged (if charged at all) as murder, manslaughter or negligent homicide is depel1dentllpon the uniqu e facts and circum-stances of the particular case. Tn addilion , regardless of what is allegcd. the commander who is the court-martial conv ening ;uth~)J'ity has much discretion to modify the charges. Neverlheless, it 's worthwhile to remind ourselves - and others - that careless actions can have serious consequences. Of course, the worst penalty is living with the lCtTihle fact of being the cause of the death of another human being. Still, if a crimi na l sanction helps provide additional motiva-tion to be safe, th en it well serves one of its key purposes of lhe u1jiitary justice systell1. ~,;' Colonel Dunlop is. Ihe Ai r Edu cation and Training Command staff judge advocate at Randolph Air Force Bose, Texas. A sure fire plan to Beat Drinking & Driving fly Masr", S,<r. I)ETER i\1AAS III I t'S I a.Tn., and you've got to be lip and <\1 "em at 7. The problem is - you're toasted. Somewhere in the fog. reality strikes. You ' re drunk , hut you've got to get home. You look around. Your frienus me toasted loo. You draw sticks. Darn, you ';'won." You're thinkingiCs only a couple of "clicks" to the front gat.e and you don 't feel THAT drunk. You toss a stick of chew ing gum in you r mouth and off you go, As YOll approach the gate , you fu mble for your !D. As you hand the guard yonl" JD card he ' s observing your every move. He noticed the \va)' you approached the gate - weaving. He notices your glossy pupi Is and the way your eyes fail to focus. He notices lite. s lu r of your speech when he asks you how you're doing. All of your aclions tell him to check you out ,I little closer. He can ~mel1 the alcohol emanating from your breath. He knows there's no such thing as :1lcohol-tlavored Juicy Fruit gum. You're busted! Night after ni ght people are ca llght drinking and driving. \Vhy '? Because they fail to plan. They fnil to assess the risks associated wjtb drinking alld dri ving. 1f you tak~ a Inlnute or two to plan th e cvenlng. you can save YOllrself great embarrassment, you can save your career, and most importantly, you can live to enjoy another night out. While most of us have heard of Operational Risk l\1anagellHmt, or ORM, many of us don't usc.it when we're off duty. Thi s. common mist..:onccplion is worth exploring. Let's apply OR1v1 :s six-step process to the scenario above: The Master Plan l) Identify the JI>lzard Drinking alcohol and operating a vehi cle is a itaL.ard! 2) Assess the Risk .. T could gct c8uglu, end up in jaiL destroy my career. + I could gel into an accident and kill myself or someone cl~e. 3) Analyze Ihe Control Measures + I could walk. + I could t'lke a taxi. .... I could find a designated driver. 4) \lake Control Decisions + Walk is too far. • Taxi costs money, but we split the cos t. +- Hey~ Ken"s ugly and can't' get a date. hut he's re liable. Ler's fiee if he ' ll be our dcsignated ctri vcr (but don't tell him he's ugly). 5) Risk Control Implementation Ken ' s the choice! He's free and reliable. 6) Snpcnisc and Review Once you ' re sober, evaluate how well your uctivity went. Adjust us needed and start. Ihe pruct~ss again: Sergeon! Moos is with the 18th \~ing sofety office c ! Kodeno Air Bose, Okinowo, Japan. TORCH April 2001 15 

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6221&amp;context=faculty_scholarship

When does an Unsafe Act Become a Crime?

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Duke Law Scholarship Repository