Defenses

(a) In general. As used in this rule, “defenses” includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts. (b) Burden of proof. (1) General rule. Except as listed in paragraphs (b)(2) and (3) of this rule, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist. (2) Lack of mental responsibility. The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. (3) Mistake of fact as to age. In the defense of mistake of fact as to age as described in Article 120b(d)(2) in a prosecution under Article 120b(b) (sexual assault of a child) or Article 120b(c) (sexual abuse of a child), the accused has the burden of proving mistake of fact as to age by a preponderance of the evidence. (c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. (d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. (e) Self-defense. (1) Homicide or assault cases involving deadly force. It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused: (A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and (B) Believed that the force the accused used was necessary for protection against death or grievous bodily harm. (2) Certain aggravated offer-type assault cases. It is a defense to aggravated assault that the accused: (A) Apprehended, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and (B) In order to deter the assailant, offered but did not actually inflict or attempt to inflict substantial or grievous bodily harm. (3) Other assaults. It is a defense to any assault punishable under Article 89, 91, 128, or 128b and not listed in paragraphs (e)(1) or (2) of this rule that the accused: (A) Apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and (B) Believed that the force that the accused used was necessary for protection against bodily harm, provided that the force used by the accused was less than force reasonably likely to produce death or grievous bodily harm. (4) Loss of right to self-defense. The right to self- defense is lost and the defenses described in paragraphs (e)(1), (2), and (3) of this rule shall not apply if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred. (5) Defense of another. The principles of self- defense under paragraphs (e)(1) through (4) of this rule apply to defense of another. It is a defense to homicide, attempted homicide, assault with intent to kill, or any assault under Article 89, 91, 128, or 128b that the accused acted in defense of another, provided that the accused may not use more force than the person defended was lawfully entitled to use under the circumstances. (f) Accident. A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable. (g) Entrapment. It is a defense that the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense. (h) Coercion or duress. It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply. (i) Inability. It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty. (j) Ignorance or mistake of fact. (1) Generally. Except as otherwise provided in this subsection, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring intent, willfulness, or premeditation, knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, the accused’s knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense. specific if (2) Child Sexual Offenses. It is a defense to a prosecution under Article 120b(b), sexual assault of a child, and Article 120b(c), sexual abuse of a child, that, at the time of the offense, the child was at least 12 years of age, and the accused reasonably believed that the child had attained the age of 16 years. The accused must prove this defense by a preponderance of the evidence. (k) Lack of mental responsibility. (1) Lack of mental responsibility. It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. II-79 (2) Partial mental responsibility. A mental condition not amounting to a lack of mental responsibility under paragraph (k)(1) of this rule is not an affirmative defense. (3) Procedure. (A) Presumption. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense. (B) Inquiry. If a question is raised concerning the mental responsibility of the accused, the military judge shall rule finally whether to direct an inquiry under R.C.M. 706. (C) Determination. The issue of mental responsibility shall not be considered as an interlocutory question. (l) Not defenses generally. (1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense. (2) Voluntary intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense. specific