UCMJ Article 130: Stalking

Stalking under Article 130 is a repeated course of conduct aimed at a specific person that would make a reasonable person fear death or bodily harm, including sexual assault, to themselves, their immediate family, their intimate partner, or their dating partner, when the accused knew or should have known it would, and it did. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 3 years.

Three parts of § 930(a)

10 U.S.C. § 930(a) has three parts. The accused:

1. wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself, an immediate family member, an intimate partner, or a dating partner;
2. has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of that harm; and
3. induces in that person reasonable fear of that harm.

The dating-partner category was added by Pub. L. 118-31 (December 22, 2023) and carried into the Manual by Executive Order 14130 (2024).

Before January 1, 2019, stalking was Article 120a, and Article 130 was housebreaking. The Military Justice Act of 2016 moved stalking here; housebreaking was folded into unlawful entry under Article 129.

The definitions

Section 930(b) defines the terms that decide a case:

• Conduct: conduct of any kind, “including use of surveillance, the mails, an interactive computer service, an electronic communication service, or an electronic communication system.” Online contact counts.
• Course of conduct: repeated maintenance of visual or physical proximity to a specific person; repeated conveyance of verbal, written, or implied threats directed at a specific person; or a pattern of conduct composed of repeated acts evidencing a continuity of purpose.
• Repeated: two or more occasions.
• Dating partner: someone who is or has been in a romantic or intimate social relationship, judged by the length and type of the relationship, frequency of interaction, and extent of physical intimacy or sexual contact.
• Immediate family and intimate partner: as also used in Article 128b (spouse, parent, sibling, child, person in loco parentis, household relatives; former spouse, co-parent, cohabitant, or romantic partner).

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 80.c, adds that “bodily harm” means any offensive touching, however slight, including sexual assault, and that a “threat” is a communication, by words or conduct, of a present determination or intent to cause bodily harm, now or later. “Actual intent to cause bodily harm is not required.”

Three tests of fear

The elements require fear measured three ways: the conduct would cause a reasonable person to fear harm; the accused knew or should have known the victim would be placed in reasonable fear; and the victim actually was. A course of conduct that frightened no one, or that would not frighten a reasonable person, does not meet the statute, and neither does one the accused had no reason to know would frighten the victim.

Article 130 maximum and special trial counsel

Under ¶ 80.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

Stalking is listed in 10 U.S.C. § 801(17)(A) as a covered offense. Where the conduct took place after December 27, 2023, a special trial counsel determines whether the report is covered and controls referral, dismissal, and plea agreements (10 U.S.C. § 824a(c)). When the victim is under 16, stalking is a “child abuse offense” for the statute of limitations, so charges may be brought during the life of the child or within 10 years, whichever is longer (10 U.S.C. § 843(b)(2)).

Domestic violence, threats, and protective orders

Stalking is one of the “violent offenses” listed for Article 128b, domestic violence, so stalking a spouse, intimate partner, dating partner, or immediate family member can be charged there, with 3 more years of confinement. A single threat, rather than a course of conduct, can be communicating a threat under Article 115. Violating a commander’s military protective order is a failure to obey a lawful order under Article 92, or an Article 128b offense when done with the intent the statute requires.

Sources

• 10 U.S.C. § 930, Article 130, Stalking (Cornell LII)
• 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
• 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
• 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 80 (as amended by Executive Order 14130)

General information about military law, not legal advice for any individual case.