2015 (September Term)
United States v. Killion, 75 M.J. 209 (words are considered provoking and a violation of Article 117, UCMJ, when, inter alia, a reasonable person would expect them to induce a breach of the peace under the circumstances; the provocative nature of speech for purposes of Article 117, UCMJ, thus depends in part upon the context in which they are spoken and the audience to whom they are addressed).
(in this case, it was error for the military judge to instruct the members on the charged Article 117, UCMJ, offense to determine whether the words described in the specification would have caused an average person to react by immediately committing a violent or turbulent act in retaliation; a violation of Article 117, UCMJ, depends not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the persons to whom the words are addressed).
(a provoking words offense under Article 117, UCMJ, consists of three elements: (1) the accused wrongfully used words or gestures toward a certain person; (2) the words or gestures used were provoking or reproachful; and (3) the person toward whom the words or gestures were used was a person subject to the UCMJ; words are considered provoking when a reasonable person would expect them to induce a breach of the peace under the circumstances; the provocative nature of speech for the purposes of Article 117, UCMJ, depends upon the context in which the words are spoken and the audience to whom they are addressed; the rationale behind the prohibition on using provoking words is to serve as a check against manifestations of a hostile temper as, by inducing retaliation; thus, the reasonable reaction of the person to whom the words are addressed factors heavily into a determination of whether speech is provocative; the calculus is far more expansive than simply examining the volatility of the speaker’s demeanor and the offensive nature of the words).
(in analyzing alleged provoking speech under the circumstances, factors such as the occupation of the listener have always been deemed relevant to whether the speech is likely to cause a reasonable person to retaliate; just as the profession and training of the person to whom the words are addressed impact the under the circumstances calculus, evidence that the speaker is restrained in some way is also relevant to the likelihood of retaliation by the reasonable person; offensive speech directed at a listener with special training or a particular profession or by a speaker who is restrained may be provocative under the circumstances; case-specific facts must be considered in determining whether an objectively reasonable person could be expected to retaliate against words that, under other circumstances, could be provocative).
(in this case, the military judge’s instruction on the provoking words offense was deficient because while it did, in fact, direct the panel to consider the facts and circumstances of this case, it effectively negated the focus on the actual circumstances of those who were the targets of appellant’s speech by misdirecting the members’ focus to the reaction of a hypothetical average person; based on the evidence presented at trial, the question for the members was not what an average person might do under the circumstances but whether a reasonable medical care provider with the training described was likely to retaliate against a fully restrained, obviously intoxicated patient).
2011 (September Term)
United States v. Nealy, 71 M.J. 73 (Article 117, UCMJ, provoking speech, is not in fact an LIO of Article 134, UCMJ, communicating a threat).