## Facts

- The Department of Defense implemented the Anthrax Vaccine Immunization Program requiring certain service members to receive a six-shot series.
- Airman Basic Christopher Washington received the first five anthrax vaccinations but refused the sixth after hearing allegations questioning vaccine safety.
- Washington’s commander ordered him to take the sixth shot; Washington refused and received nonjudicial punishment.
- The commander issued a second order to take the vaccination; Washington again stated he would not comply.
- Washington was charged at a special court-martial with willful disobedience of a lawful order of a superior commissioned officer (Article 90, UCMJ).
- At trial, Washington stipulated the vaccination order was lawful but sought to defend his refusal on necessity and duress, asserting fear of serious bodily harm from the vaccine.
- The military judge ruled neither defense was legally available on the proffered facts, barred evidence offered solely to support those defenses, and did not instruct members on necessity or duress.
- Washington was convicted and sentenced to two months’ confinement and a bad-conduct discharge; the convening authority approved the sentence.

## Issues

1. Whether a common-law necessity defense is recognized at courts-martial and, if so, whether it could justify disobeying a lawful order to receive anthrax vaccination.
2. Whether Washington was entitled to present a duress defense based on alleged threatened serious bodily harm from the vaccination.
3. Whether the military judge erred by excluding evidence and refusing instructions on necessity and duress.

## Decision

- The Court of Appeals for the Armed Forces affirmed the conviction and sentence.
- The court declined to definitively decide whether necessity exists as a standalone defense in military law, holding that even if it does, Washington’s proffer failed as a matter of law.
- The court held duress was unavailable because the asserted harm from vaccination did not constitute an immediate threat of death or serious bodily harm and lawful alternatives existed.
- The military judge properly refused instructions and excluded evidence where the proffer, even if true, could not satisfy the legal elements of the defenses.

## Legal Principles

- An accused is entitled to a defense instruction only when there is “some evidence” supporting each element of the proffered defense; if the proffer is legally insufficient, the judge may decline the instruction and exclude evidence offered solely for that defense.
- If necessity applies in courts-martial, it must be construed consistently with the requirements of obedience to lawful orders and the purposes of military law; traditional necessity requires an objectively reasonable belief in a greater imminent harm, and no lawful alternative that would cause lesser harm.
- Duress requires an objectively reasonable fear arising from a threat of immediate death or serious bodily injury, such that free will is overborne and there is no reasonable opportunity to avoid the harm except by committing the charged offense.
- Speculative or long-term health concerns about compliance with an otherwise lawful military program do not satisfy immediacy or no-alternative requirements for necessity or duress.

## Conclusion

CAAF upheld Washington’s Article 90 conviction for refusing a lawful anthrax vaccination order, holding that neither necessity nor duress was available because the asserted vaccine risk was not an immediate threat and Washington had lawful alternatives; the military judge therefore correctly excluded related evidence and declined to instruct on those defenses.


United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002)