The short answer requires an important correction at the outset. The offense of resisting apprehension was historically codified at Article 95 of the Uniform Code of Military Justice, but the Military Justice Act of 2016 renumbered it. As of January 1, 2019, resistance, flight, breach of arrest, and escape are found at Article 87a. The current Article 95 covers offenses by a sentinel or lookout, a completely different subject. So a charge sheet today would allege resisting apprehension under Article 87a, not Article 95. With that numbering fixed, the real question is whether words alone, used to prevent a lawful apprehension, amount to the offense of resisting apprehension.
What Resisting Apprehension Means
Apprehension is the military equivalent of arrest. It is the act of taking a person into custody, and any person authorized to do so may apprehend a member reasonably believed to have committed an offense. The offense of resisting apprehension generally requires that a person attempted to apprehend the accused, that the person was authorized to apprehend the accused, and that the accused actively resisted the apprehension. Two elements deserve emphasis. The apprehension must be lawful, meaning conducted by someone with authority and on a proper basis. And the resistance must be active.
The Active Resistance Requirement
The core of the analysis is the word “active.” Resisting apprehension traditionally means physical opposition to the act of being taken into custody, such as struggling, pulling away, striking the apprehending official, or using force or violence to defeat the apprehension. Mere words of protest, argument, or refusal, and even passive failure to cooperate, have not generally been treated as the active resistance the offense demands. A person who simply stands still, goes limp, or complains loudly is not, by that conduct alone, actively resisting in the sense the statute contemplates.
Where Verbal Threats Fit
Pure words present a genuine line-drawing problem. A bare statement of objection is not active resistance. A verbal threat is closer to the line but still must be evaluated for whether it operates as force or intimidation that actually opposes the physical act of apprehension. A threat that is essentially expressive, an angry promise of future complaints or litigation, does not prevent the apprehension and is unlikely to satisfy the active resistance element on its own. A threat that functions as immediate intimidation backed by an apparent ability to carry it out, delivered to halt the apprehension in the moment, comes much closer, and in some circumstances words coupled with menacing conduct can together constitute active resistance. The decisive question is whether the threat actually opposed the apprehension by force or intimidation, or whether it was merely accompanying speech.
Other Charges That May Fit Better
When the conduct is verbal, prosecutors often have better-fitting alternatives. A threat to do unlawful harm may be chargeable as communicating a threat under Article 115. Disrespectful or insubordinate language toward a superior may implicate Article 89 or Article 91. Conduct that obstructs the administration of justice can implicate Article 131b. And a refusal to comply with a lawful order to submit may be charged as a violation of Article 90, 91, or 92 depending on who issued the order. The availability of these alternatives is one reason a verbal-threat scenario is not automatically forced into the resisting apprehension box.
Lawfulness of the Apprehension Is Always in Play
Because the offense requires a lawful apprehension, the legality of the attempted custody is a live issue. If the person attempting the apprehension lacked authority, or if there was no reasonable basis to believe the member committed an offense, the foundation for a resisting apprehension charge is undermined. This matters even when threats are uttered, because resistance to an unlawful apprehension is not the same offense.
Bottom Line
Verbal threats used to try to prevent a lawful apprehension can support a charge only if they rise to active resistance, meaning they actually oppose the apprehension through force or intimidation rather than serving as bare protest or expressive anger. Words alone usually fall short of the active resistance element, and conduct that is fundamentally verbal is often charged more naturally as communicating a threat, disrespect, obstruction, or disobedience. The charge would today be brought under Article 87a, not Article 95, which now addresses sentinel and lookout offenses. Because these distinctions drive the outcome, anyone facing such an allegation should consult an experienced military defense attorney to assess both the correct article and whether the active resistance element can actually be proven.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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