Maiming as a Criminal Offense under Military Law
![handle is hein.journals/armylaw1991 and id is 347 raw text is: Maiming as a Criminal Offense Under Military Law
Major Eugene R Milhizer
Instructor, Criminal Law Division, TJAGSA
Introduction
Maiming' is a serious offense that rarely is prosecuted
in military courts. From 30 June 1986, through 29 Janu-
ary 1990, only thirty-two specifications alleging maiming
were tried in the Army at general or special courts-
martial.2 Of these cases, the accused providently pleaded
guilty to maiming on four occasions, and was found
guilty of maiming despite pleading not guilty nine other
times.3 The accused was acquitted or found guilty of a
lesser offense on the remaining nineteen specifications.4
The infrequency of maiming charges and convictions is
somewhat unexpected, given the increased number of
child abuse and domestic violence cases now being tried
by courts-martial. Its rareness can be explained, in part,
by the serious and limited types of injuries needed to con-
stitute this offense. The rareness also must be attributed,
however, to the fact that military practitioners are gener-
ally less familiar with maiming than other similar, less
serious crimes of violence, such as aggravated assault.
This general unfamiliarity with maiming probably results
in the crime not being charged in many appropriate cases,
and not considered as a lesser-included offense on some
occasions when it reasonably is raised by the evidence.
This article seeks to reacquaint military practitioners
with the scope of maiming under current military law.
Special attention is given to unsettled questions and unre-
solved issues. Before these matters can be addressed
properly, however, the origins and development of maim-
ing under both civilian and military law must be
examined.
The Origins and Development of Maiming
Under Civilian Law
Maiming is the modem equivalent of the traditional
offense known as mayhem.' At early English common
law, mayhem occurred when a person maliciously6
deprived another of any part of the body that was useful
for offensive or defensive fighting,7 or diminished the
victim's ability to annoy his adversary.8 The rationale for
the offense, as pointed out by Blackstone, was that the
type of injuries that the mayhem statute was meant to
prevent tended to deprive the King of the military aid and
assistance of his subjects.9 Mayhem thus was proscribed
for the protection of the Crown, and derivatively, society
in general. The crime, therefore, did not exist primarily
for the protection of the victim individually.10
Consistent with this military rationale for mayhem,
only a disabling injury could serve as the basis for the
offense. For example, mayhem could be committed when
the offender cut off or permanently crippled' a victim's
'See Uniform Code of Military Justice art. 124, 10 U.S.C. 1 924 (1988) [hereinafter UCMJ].
2These statistics were provided by the Clerk of the Court, the United States Army Court of Military Review. The author would like to thank Mr.
William S. Fulton, Jr., for his assistance In providing these statistics.
31d.
41d.
5R. Perkins & R. Boyce, Criminal Law 238 (3d ed. 1982) (citing State v. Thomas, 157 Kan. 526, 142 P.2d 692 (1943); and State v. Kuchmak, 159
Ohio St. 363, 368, 112 N.E.2d 371, 374 (1953)). As the court in State v. Johnson, 58 Ohio St. 417, 51 N.E. 40 (1898), observed: There is no
question, we think, but that 'maim' as a noun, and 'mayhem' are equivalent words, or that 'maim' is but a newer form of the 'mayhem' . Some
jurisdictions, on the other hand, have retained the term mayhem to denominate the offense and use the word maim to describe the type of injury
required for the crime. E.g., Carpenter v. People, 31 Coto. 284, 219, 72 P. 1072, 1074 (1903) (a specific intent to maim was not a necessary element
of the crime of mayhem); see also Terrell v. State, 86 Tenn. 523, 525, 3 S.W. 212 (1688) (both cited in R. Perkins & R. Boyce, supra at 239 n.3).
The offense later known as mayhem has deep roots, and can be traced to biblical times. But is injury ensues, he shall give life for life, eye for eye,
tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. Exodus 21:23-24; see also Deuteronomy 19:21,
sUnder the early English common law, mayhem required that the injury be inflicted maliciously. R. Perkins & R. Boyce, supra note 5, at 239-240
(citing I East P.C. 393 (1803) (mayhem under English common law requires that the act be done maliciously)).
72 Wharton's Criminal Law 1 204 (14th ed. 1979).
82 W. LaFave & A. Scott, Substantive Criminal Law 320 (1986).
94 W. Blackstone, Commentaries 205 (1769). Lord Coke put it similarly: iF]or the members of every subject are under the safeguard and protection
of the law, to the end a man may serve his King and country when the occasion shall be offered. Coke, 1 Inst. 127 (nd). As one court more recently,
observed, Mayhem in early common law was committable only by infliction of an injury which substantially reduced the victim's formidability in
combat. Goodman v. Superior Court of Alameda County, 84 Cal. App. 3d 621. 148 Cal. Rptr. 799, 800 (1978).
'OIL Perkins & P.. Boyce, supra note 5, at 242.
I Blackstone characterized such an injury as one that [florever disabled the victim. 3 W. Blackstone, supra note 9, at 121. For example, In State v.
McDonie, 89 W.Va. 135, 109 S.E. 710 (1921), a sufficiently disabling injury for common law mayhem was found where the offender scalded the
victim's foot so that his toes grew together rendering him unfit to fight.
MAY, 1991 THE ARMY LAWYER - DA PAM 27-50-221](ViewImageLocal?handle=hein.journals/armylaw1991&div=27&collection=&method=preview&ext=.png&size=3)
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Maiming as a Criminal Offense under Military Law
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