Military Stalking Defense

UCMJ Article 130

A stalking allegation can arise after a breakup, during a custody dispute, or from a series of messages whose meaning is contested. A service member may face a military protective order, a no-contact order, and an investigation by CID, NCIS, OSI, or CGIS before charges are filed.

Cave & Freeburg defends service members accused of stalking under Article 130 of the Uniform Code of Military Justice. Our attorneys bring more than 65 years of combined military justice experience and have represented clients in 47 states and at installations worldwide.

If you are under investigation, speak with a military defense lawyer before making a statement about the allegations to investigators or your command.

What Is Stalking Under the UCMJ?

Article 130, UCMJ, 10 U.S.C. § 930, requires the government to prove three elements beyond a reasonable doubt:

1. A wrongful course of conduct. The accused engaged 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 themselves, an immediate family member, an intimate partner, or a dating partner.
2. Knowledge. The accused knew, or should have known, that the targeted person would be placed in that reasonable fear, subject to constitutional protections for speech discussed below.
3. Actual fear. The conduct caused the targeted person to reasonably fear that harm.

A course of conduct can involve repeated physical or visual proximity, repeated threats, or repeated acts demonstrating a continuing purpose. Threats may be spoken, written, or implied by conduct. Surveillance, texts, email, social media, and other electronic communications can qualify.

The statute defines repeated conduct as conduct occurring on two or more occasions. Repetition alone, however, does not establish stalking. The government must prove the remaining elements.

Does emotional distress alone establish stalking?

No. Article 130 requires reasonable fear of death or bodily harm. Annoyance, embarrassment, or emotional distress alone is insufficient.

But bodily harm does not require a serious injury. The military definition includes offensive touching, even if slight. The defense must examine what the person allegedly feared and whether the evidence supports that fear. See the Military Judges’ Benchbook, instruction 3A-80-1.

Who Can Be the Alleged Victim?

The targeted person may be a service member or a civilian. No military affiliation or prior romantic relationship is required.

The statute also covers fear for certain people connected to the targeted person:

• Immediate family: A spouse, parent, sibling, child, someone for whom the person acts as a parent, or another household member related by blood or marriage.
• Intimate partner: A former spouse, co-parent, person who lives or previously lived with the person as a spouse, or someone in a qualifying romantic or intimate relationship.
• Dating partner: A current or former romantic or intimate partner, evaluated using the relationship’s length, nature, frequency of interaction, and extent of physical intimacy or sexual contact.

These are statutory categories. A roommate, casual acquaintance, or former contact does not necessarily qualify. See Article 130(b).

Older Allegations: Article 120a

Before January 1, 2019, the UCMJ’s dedicated stalking offense appeared in Article 120a. Its definition of a course of conduct was narrower: it addressed repeated proximity and repeated threats, without the later provision covering repeated acts demonstrating continuity of purpose.

The earlier statute did not expressly define conduct to include electronic communications. That does not mean electronic threats were automatically outside its reach. See the 2016 Manual for Courts-Martial, Part IV, paragraph 45a.

The offense date matters. Counsel must examine the applicable statutory version, later amendments, and the dates alleged in each specification.

Who Decides Whether a Stalking Case Goes to Court-Martial?

Stalking is a covered offense under Article 1(17), UCMJ. For offenses occurring on or after December 28, 2023, special trial counsel controls key prosecution decisions, including referral to a general or special court-martial.

Under Article 24a, UCMJ, special trial counsel may also exercise authority over older Article 130 allegations and pre-2019 Article 120a stalking allegations.

For the accused, this means:

• Special trial counsel controls referral, dismissal, and plea agreements for offenses over which it exercises authority.
• Its authority can extend to related offenses and other alleged offenses by the same accused.
• If it defers a covered offense, the command may have administrative or nonjudicial options, but cannot refer that covered offense to a general or special court-martial.

Early defense work can preserve evidence and put important facts before prosecutors while they are deciding how to proceed.

Possible Punishment

The maximum punishment for an Article 130 stalking conviction includes:

• Three years of confinement
• A dishonorable discharge
• Forfeiture of all pay and allowances
• Reduction to E-1 for enlisted members

These are authorized maximums, not an automatic sentence.

Stalking is a Category 2 offense under the sentencing framework. In cases governed by the newer sentencing parameters, the military judge applies the relevant range unless a legally permitted departure or other applicable rule changes the result. Cases involving older offenses require separate analysis. See the Military Judges’ Benchbook, instruction 3A-80-1, note 2 and maximum punishment.

Stalking allegations may accompany charges of domestic violence, assault, communicating a threat, or violating an order. Additional convictions can increase the potential punishment.

An allegation can also put a career and security clearance at risk before any conviction.

How We Defend Military Stalking Cases

A defense begins with the complete record and the elements the government must prove.

Was there a qualifying course of conduct?

We examine the alleged occasions, their timing, and their connection to one another. A single isolated act does not establish the required repetition. Multiple acts must still satisfy the statute’s requirements when considered in context.

What did the person fear—and why?

The government must prove actual, reasonable fear of death or bodily harm. We examine the person’s statements, surrounding events, contemporaneous communications, and other evidence bearing on both the existence and reasonableness of that fear.

What does the complete digital record show?

Selected screenshots may omit surrounding messages or distort timing. Full conversations, account records, location information, and witness testimony can change how an exchange is understood.

Invitations, mutual communication, and continued contact may be relevant. They do not automatically disprove fear or establish a defense.

Does the case depend on allegedly threatening speech?

In Counterman v. Colorado, 600 U.S. 66, 73–82 (2023), the Supreme Court held that a true-threats prosecution requires a subjective mental state of at least recklessness concerning the threatening nature of the statements. An objective reasonable-person test alone is insufficient.

The Army’s Military Judges’ Benchbook, instruction 3A-80-1, notes 6–7, addresses this distinction for stalking allegations involving only speech. Defense counsel should scrutinize both the prosecution’s theory and the proposed instructions like we do.

Are the allegations consistent with the evidence?

We investigate discrepancies, prior inconsistent statements, and any evidence of bias or motive to fabricate.

What arguments have courts rejected?

In United States v. Lull, No. ACM 39555, slip op. at 28–29 (A.F. Ct. Crim. App. Sept. 2, 2020), the court rejected arguments that lawful presence and continued contact defeated the stalking conviction on the facts presented.

Lull is an unpublished, nonprecedential decision involving former Article 120a. It illustrates why defense counsel must address the full circumstances rather than assume that a continuing relationship or permission to be somewhere resolves the case.

Why Cave & Freeburg

Cave & Freeburg is a veteran-owned firm focused on courts-martial, military appeals, and adverse administrative actions. Our attorneys have handled hundreds of contested courts-martial, hearings, and appeals, and travel to represent service members at installations in the United States and overseas.

Learn more about our sexual assault defense, military appeals, and high-profile and multi-victim courts-martial, or explore all practice areas.

Frequently Asked Questions

Is repeatedly texting someone stalking under the UCMJ?

Not automatically. The government must prove the full offense, including the required fear and mental state. Cases based solely on speech also require careful consideration of Counterman.

Can I be charged with stalking a civilian?

Yes. The alleged victim need not be in the military. The accused must be subject to UCMJ jurisdiction.

How many incidents does it take?

The statute requires conduct on at least two occasions. The number alone does not establish guilt; the nature and context of the conduct matter.

Can my commander handle the allegation at NJP?

Possibly, after special trial counsel defers the matter and subject to the applicable rules. Deferral does not necessarily mean the allegation has been dismissed or that no further action can occur.

Should I explain myself to investigators?

Speak with a military defense lawyer before answering questions about the allegation. Counsel can advise you about invoking your rights and responding to investigative requests.

What should I do with messages and account records?

Preserve them, including material you think is unfavorable. Do not delete messages, alter accounts, or ask anyone to change their account of events. Follow protective and no-contact orders, and have counsel address questions about their scope.

Talk to a Military Defense Lawyer

If you are under investigation or facing an Article 130 charge, get advice before making a statement or trying to resolve the allegation yourself.

Contact Cave & Freeburg to arrange a consultation about your defense.

By Philip Cave and Nathan Freeburg at www.court-martial.com. (Last reviewed October 18, 2026.)