a. The accused offered to do bodily harm to a certain person; and
b. That the offer was done with unlawful force or violence.
No physical contact is necessary to complete an offer type assault. The key to an offer type
assault is that an unlawful demonstration of force frightens a victim. An offer type assault can be
intentional or the result of a culpably negligent act. By culpable negligence we mean a degree of
carelessness greater than simple negligence. It is a negligent act or omission accompanied by a
disregard for the foreseeable consequences to others of that act or omission. Part IV, MCM, 1984, Para
44C. In other words, culpable negligence is an act so reckless as to make the actor criminally liable for
his action (or inaction when there was a legal duty to act).
An important element of the simple assault by offer is the victim must be aware of the
perpetrator's act and must reasonably feel bodily harm is about to result. For example, PVT Doe has
committed simple assault by offer when he shakes his fist in PVT Roe's face. Of course, PVT Roe must
see the fist, reasonably believe he may get hit, and be placed in reasonable apprehension or fear of being
hit.
In our scenario above, if PVT Doe took a swing at PVT Roe but missed, the fact that Roe
was frightened would be enough to constitute an offer type simple assault. If PVT Doe swings at PVT
Roe's head simply to frighten Roe and Roe does not see the fist approaching and is not put in fear, then
no offer type simple assault has been committed.
It must appear to the victim that the assailant has the ability to strike the victim. Without
this, the victim can have no reasonable fear or apprehension of immediate bodily harm.
The perpetrator's ability to inflict injury does not have to be real as long as impending harm
is reasonably apparent to the victim. One example of this could be pointing an unloaded pistol at
another as a joke. Even though the pistol could not have been fired, the act of pointing the unloaded
weapon at another will constitute an assault by offer as the victim is aware of the attack and was placed
in reasonable fear of bodily injury. United States v. Bush, 47 CMR 532 (NCMR 1973).
QUESTION: ARE MERE WORDS AN ASSAULT?
ANSWER: NO. MERE WORDS OR THREATS OF FUTURE VIOLENCE ARE INSUFFICIENT TO
CONSTITUTE AN ASSAULT.
HOWEVER, IF THE THREATENING WORDS ARE
ACCOMPANIED BY A MENACING GESTURE, THERE MAY BE AN ASSAULT BY OFFER.
PART IV, MCM 1984, PARA 54(C) (1) (C) (II).
NOTE: A VERBAL THREAT ONLY MAY CONSTITUTE THE OFFENSE OF COMMUNICATING
A THREAT IN VIOLATION OF ARTICLE 134, UCMJ.
2. Simple Assault by attempt.
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