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Manual for Courts-Martial; Proposed Amendments

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AGENCY:

Department of Defense, Joint Service Committee on Military Justice (JSC).

ACTION:

Notice of summary of public comment received regarding proposed amendments to the Manual for Courts-Martial, United States (2005 ed.).

SUMMARY:

The JSC is forwarding final proposed amendments to the Manual for Courts-Martial, United States (2005 ed.) (MCM) to the Department of Defense. The proposed changes, resulting from the JSC's 2005 and 2006 annual reviews of the MCM, concern the rules of procedure applicable in trials by courts-martial and offenses that may be charged under the Uniform Code of Military Justice (UCMJ). The proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation and Processing of Legislation, Executive Orders, Proclamations, and Reports and Comments Thereon” May 21, 1964, and do not constitute the official position of the Department of Defense, the Military Departments, or any other government agency.

ADDRESSES:

Comments and materials received from the public are available for inspection or copying at the Office of The Judge Advocate General of the Army, Criminal Law Division, 1777 N. Kent Street, 10th Floor, Rosslyn, Virginia 22209-2194 between 8 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.

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FOR FURTHER INFORMATION CONTACT:

Lieutenant Colonel Pete Yob, Executive Secretary, Joint Service Committee on Military Justice, 1777 N. Kent Street, Rosslyn, Virginia 22209-2194, (703) 588-6744, (703) 588-0144 fax.

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SUPPLEMENTARY INFORMATION:

Background

On August 10, 2006 (71 FR 45780), the JSC published a notice of Proposed Amendments to the Manual for Courts-Martial and a Notice of Public Meeting to receive comment on this proposal. The public meeting was held on 18 September 2006. One individual provided oral comment at the public meeting. The JSC received three sets of written comments from one individual, and two documents containing written comments from an organization. One anonymous poster submitted a comment through the Federal Docket Management System (FDMS) (DoD-2006-OS-0177).

Purpose

The proposed changes concern the rules of procedure applicable in trials by courts-martial and offenses that can be charged under the UCMJ. More specifically, the proposed changes: Allow a military judge to sua sponte enter a finding of not guilty to an offense at any time prior to authentication of the record of trial, if prior to entering such finding the military judge holds an Article 39(a) session giving the parties an opportunity to be heard on the matter; require any sentence that must be approved by the President of the United States to be forwarded from the Service Secretary concerned through the Secretary of Defense; provide a definition of “clergyman's assistant” as used in the Military Rule of Evidence concerning communications to clergy; provide definitions of the terms “child of either” and “temporary physical custody” as used in the Military Rule of Evidence concerning the husband-wife privilege; amend Article 120 to incorporate some sex offenses currently charged under Article 134 of the UCMJ, change the elements of rape and add other sexual assault offenses, include all sex offenses against children, change the offense of carnal knowledge to aggravated sexual assault of a child, and change all Rules for Courts-Martial and Military Evidence to be consistent with the new Article 120 offense; and adds a new offense of child endangerment under Article 134;

Discussion of Comments and Changes

In response to request for public comment the JSC received oral comments from one individual and written comments from this same individual, one organization, and one anonymous person posting to FDMS. The JSC considered the public comments and is satisfied that the proposed amendments are appropriate to implement without modification. The JSC will forward the public comments and proposed amendments to the Department of Defense. Start Printed Page 78138

The oral and written comments provided by members of the public regarding the proposed changes follow:

a. Several comments included suggestions for changes to the MCM that were outside the scope of the proposed amendments. These proposals will be considered for inclusion in the 2007 JSC annual review. They do not affect the proposed amendment currently under consideration.

b. Raised a concern about the public having a meaningful ability to comment because there was no summary, no explanation as to the “extent, substance, impact, or motivation,” for the proposed changes, and because changed portions were not indicated in highlighting or in bold, when the text of the proposal stated they would be. Requested that the proposed changes be republished in the Federal Register with a summary and explanation and requested release of minutes from the internal JSC meetings where the JSC discussed these issues. In addition, objected to a 60 day time period from the date of publication for public comment and recommended that this period be at least 75 days.

In answer, the JSC has considered these comments and has determined that the rulemaking process is adequate, satisfies statutory requirements, and provides sufficient opportunity for public participation. The JSC has concluded that the public had a meaningful opportunity for comment. A supplemental notice in the Federal Register explained that changed portions were not highlighted in the initial publication, as intended, but the proposed changes as published were in the format that would be forwarded to the Department of Defense. The supplement noted that a copy of the proposal with highlighted portions was available to anyone upon request to the Executive Secretary of the JSC. An explanation as to the meaning and intent of this proposed change is more appropriate for Congressional action, as the basis for this change is statutory. Any detailed summary published could inadvertently fail to convey all the nuances of this complex change and could lead to confusion about the actual wording and effect of the proposed change. The JSC does not release minutes of its internal, deliberative meetings. The typical period for public comment in the Federal Register is 60 days and the DoD Directive regulating the JSC requires a 60 day publication period.

c. Observed that the new Article 120 would not contain any offenses that could charge any criminal conduct that cannot be charged under existing provisions of the UCMJ.

In answer, while the new Article 120 arguably does not criminalize any acts that could not have been charged prior to the change, there was a legislative decision to define more categories of offenses to be charged according to more specific facts involved in sex crimes.

d. Opposed making “indecent exposure” an offense under Article 120 without an element that would require the conduct charged to be service discrediting or without an element that would exclude situations in which situations where those witnessing the exposure were consenting adults or the situation in which the exposure occurred made it the norm.

In answer, indecent exposure has an element requiring that the exposure be done in an indecent manner. One factor in determining whether exposure is indecent is the time, manner and place in which a person exposes himself or herself. Commanders will have the discretion to consider all surrounding factors before deciding if conduct involving exposure is actionable and whether action is appropriate.

e. Expressed a desire that state statutes, state court decisions, and official guidance to prosecutors be consulted as these proposed amendments are implemented.

In answer, a variety of sources, including Federal and state material, were consulted as these provisions were drafted. These sources will continue to be consulted during implementation.

f. Recommended that forcible sodomy be abolished as an offense chargeable under Article 125 because it could now be charged under Article 120, and recommended that the consensual sodomy no longer be an offense under the code or that it be moved to Article 134 and require an element that it be service discrediting.

In answer, this is a matter subject to legislative action. Congress did not include these changes as part of its legislative action in FY 2006.

g. Requested that the affirmative defense for marriage applicable to certain offenses be narrowed or eliminated.

In answer, the affirmative defenses were contained in the legislation passed by Congress. The affirmative defense for marriage only applies to some of the offenses under Article 120. Most of these offenses involve conduct that would otherwise be deemed as consensual but for the fact that they involved children under the age of 16. A number of states allow marriage to children under the age of 16 under certain circumstances.

h. Requested that the definition of “child” in the new Child Endangerment offense include a “child in utero,” to permit an expectant mother to be charged under this offense if her behavior endangers her unborn child.

In answer, Congress recently passed legislation that became law creating a UCMJ offense for causing the death or injury of an unborn child. Within this offense, it expressly exempts the mother of the child in utero from prosecution. Therefore, expanding the definition of child in the new child endangerment offense for the purpose of criminalizing conduct by an expectant mother would appear to be contrary to established Congressional intent.

Proposed Amendments After Consideration of Public Comment Received

The proposed recommended amendments to the Manual for Courts-Martial to be forwarded through the DoD for action by Executive Order of the President of the United States are as follows:

Section 1. Part II of the Manual for Courts-Martial, United States, is amended as follows:

(a) RCM 916(b) is amended to read:

(b) Burden of proof.

(1) General rule. Except as listed below in paragraphs (2), (3), and (4), the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.

(2) Lack of mental responsibility. The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

(3) Mistake of fact as to age. In the defense of mistake of fact as to age as described in Part IV, para. 45a(o)(2) in a prosecution of a sexual offense with a child under Article 120, the accused has the burden of proving mistake of fact as to age by a preponderance of the evidence. After the defense meets its burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.

(4) Mistake of fact as to consent. In the defense of mistake of fact as to consent in Article 120(a), rape, Article 120(c), aggravated sexual assault, Article 120(e), aggravated sexual contact, and Article 120(h), abusive sexual contact, the accused has the burden of proving mistake of fact as to consent by a preponderance of the evidence. After the defense meets its burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.

(b) RCM 916(j)(2) is amended to read:

(2) Child Sexual Offenses. It is a defense to a prosecution for Article 120 (d), aggravated sexual assault of a child, Article 120(f), aggravated sexual abuse Start Printed Page 78139of a child, Article 120(i), abusive sexual contact with a child, or Article 120 (j), indecent liberty with a child that, at the time of the offense, the child was at least 12 years of age, and the accused reasonably believed the person was at least 16 years of age. The accused must prove this defense by a preponderance of the evidence.

(c) RCM 916(j) is amended by inserting new paragraph RCM 916(j)(3) after the Discussion section to RCM 916(j)(2):

(j)(3) Sexual offenses. It is an affirmative defense to a prosecution for Article 120(a), rape, Article 120(c), aggravated sexual assault, Article 120(e), aggravated sexual contact, and Article 120(h), abusive sexual contact that the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which is a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

(d) RCM 920(e)(5)(D) is amended to read:

(D) The burden of proof to establish the guilt of the accused is upon the Government. [When the issue of lack of mental responsibility is raised, add: The burden of proving the defense of lack of mental responsibility by clear and convincing evidence is upon the accused. When the issue of mistake of fact under RCM 916 (j)(2) or (j)(3) is raised, add: The accused has the burden of proving the defense of mistake of fact as to consent or age by a preponderance of the evidence.]

(e) RCM 1004(c)(7)(B) is amended to read as follows:

(B) The murder was committed: while the accused was engaged in the commission or attempted commission of any robbery, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or privacy of an aircraft or vessel; or while the accused was engaged in the commission or attempted commission of any offense involving the wrongful distribution, manufacture, or introduction or possession, with intent to distribute, of a controlled substance; or, while the accused was engaged in flight or attempted flight after the commission or attempted commission of any such offense.

(f) RCM 1004(c)(8) is amended to read:

(8) That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing or was a principal whose participation in the burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson was major and who manifested a reckless indifference for human life.

(g) RCM 1102(b)(2), is amended to read:

(2) Article 39(a) sessions. An Article 39(a) session under this rule may be called, upon motion of either party or sua sponte by the military judge, for the purpose of inquiring into, and, when appropriate, resolving any matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to authentication of the record of trial, enter a finding of not guilty of one or more offenses charged, or may enter a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the portion of the specification. Prior to entering such a finding or findings, the military judge shall give each party an opportunity to be heard on the matter in a post-trial Article 39(a) session.

(h) R.C.M. 1102(d) is amended by deleting the last phrase of the second sentence which reads:

“,except that no proceeding in revision may be held when any part of the sentence has been ordered executed.”

(i) R.C.M. 1102(e)(2) is amended by inserting the following sentence after the last sentence in RCM 1102(e)(2):

“Prior to the military judge, sua sponte, entering a finding of not guilty of one or more offenses charged or entering a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the portion of the specification, the military judge shall give each party an opportunity to be heard on the matter.”

(j) R.C.M. 1204(c)(2) is amended by inserting the following at the end of the sentence:

(c) Action of decision by the Court of Appeals for the Armed Forces.

(2) Sentence requiring approval of the President. If the Court of Appeals for the Armed Forces has affirmed a sentence which must be approved by the President before it may be executed, the Judge Advocate General shall transmit the record of trial, the decision of the Court of Criminal Appeals, the decision of the Court of Appeals for the Armed Forces, and the recommendation of the Judge Advocate General to the Secretary concerned, who, at his discretion, may provide a recommendation. All courts-martial transmitted by the Secretary concerned, other than the Secretary of the Department of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, for the action of the President shall be transmitted to the Secretary of Defense, who, at his discretion, may provide a recommendation.

Sec. 2. Part III of the Manual for Courts-Martial, United States, is amended as follows:

(a) MRE 412 is amended as follows:

Rule 412. Sex offense cases; Relevance of alleged victim's sexual behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

(1) In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

(A) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) Evidence the exclusion of which would violate the constitutional rights of the accused. Start Printed Page 78140

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must—

(A) File a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) Serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subdivision that the evidence that the accused seeks to offer is relevant for a purpose under subdivision (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under MRE 403.

(d) For purposes of this rule, the term “sexual offense” includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. “Sexual behavior” includes any sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the factfinder.

(a) M.R.E. 503(b) is amended by renumbering the existing subsection (2) to subsection (3) and inserting the following new subsection (2) after current M.R.E. 503(b)(1) to read as follows:

“(2) A “clergyman's assistant” is a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.”

(b) M.R.E. 504 is amended by inserting new subsection (d) after M.R.E. 504(c):

“(d) Definitions. As used in this rule:

(1) The term “a child of either” includes not only a biological child, adopted child, or ward of one of the spouses but also includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is: (i) an individual under the age of eighteen; or (ii) an individual with a mental handicap who functions under the age of eighteen.”

(2) The term “temporary physical custody” includes instances where a parent entrusts his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody nor must there be a written agreement. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of their child for recurring care or during absences due to temporary duty or deployments.

Sec. 3. Part IV of the Manual for Courts-Martial, United States, is amended as follows:

(a) Paragraph 43, Article 118, Murder, paragraph (a)(4) is amended to read:

(a)(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery or aggravated arson; is guilty of murder, and shall suffer such punishment as a court martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court martial may direct.

(b) Paragraph 43, Article 118, Murder, paragraph (b)(4) is amended to read:

(b)(4) That, at the time of the killing, the accused was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson.

(c) Paragraph 44, Article 119, Manslaughter, paragraph (b)(2)(d), is amended to read:

(b)(2)(d) That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson.

(d) Paragraph 45, Rape and Carnal Knowledge, is amended to read:

Article 120. Rape, Sexual Assault, and other Sexual Misconduct

a. Text. See Article 120, UCMJ.

(a) Rape. Any person subject to this chapter who causes another person of any age to engage in a sexual act by—

(1) Using force against that other person;

(2) Causing grievous bodily harm to any person;

(3) Threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) Rendering another person unconscious; or

(5) Administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

(b) Rape of a child. Any person subject to this chapter who—

(1) Engages in a sexual act with a child who has not attained the age of 12 years; or

(2) Engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial may direct.

(c) Aggravated sexual assault. Any person subject to this chapter who—

(1) Causes another person of any age to engage in a sexual act by—

(A) Threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or

(B) Causing bodily harm; or

(2) Engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of— Start Printed Page 78141

(A) Appraising the nature of the sexual act;

(B) Declining participation in the sexual act; or

(C) Communicating unwillingness to engage in the sexual act;

is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

(d) Aggravated sexual assault of a child. Any person subject to this chapter who engages in a sexual act with a child who has attained the age of 12 years is guilty of aggravated sexual assault of a child and shall be punished as a court-martial may direct.

(e) Aggravated sexual contact. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (a) (rape) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct.

(f) Aggravated sexual abuse of a child. Any person subject to this chapter who engages in a lewd act with a child is guilty of aggravated sexual abuse of a child and shall be punished as a court-martial may direct.

(g) Aggravated sexual contact with a child. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.

(h) Abusive sexual contact. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.

(i) Abusive sexual contact with a child. Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (d) (aggravated sexual assault of a child) had the sexual contact been a sexual act, is guilty of abusive sexual contact with a child and shall be punished as a court-martial may direct.

(j) Indecent liberty with a child. Any person subject to this chapter who engages in indecent liberty in the physical presence of a child—

(1) With the intent to arouse, appeal to, or gratify the sexual desire of any person; or

(2) With the intent to abuse, humiliate, or degrade any person;

is guilty of indecent liberty with a child and shall be punished as a court-martial may direct.

(k) Indecent act. Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.

(l) Forcible pandering. Any person subject to this chapter who compels another person to engage in an act of prostitution with another person to be directed to said person is guilty of forcible pandering and shall be punished as a court-martial may direct.

(m) Wrongful sexual contact. Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person's permission is guilty of wrongful sexual contact and shall be punished as a court-martial may direct.

(n) Indecent exposure. Any person subject to this chapter who intentionally exposes, in an indecent manner, in any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.

(o) Age of child.

(1) Twelve years. In a prosecution under subsection (b) (rape of a child), subsection (g) (aggravated sexual contact with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years. It is not an affirmative defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) Sixteen years. In a prosecution under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sexual abuse of a child), subsection (i) (abusive sexual contact with a child), or subsection (j) (indecent liberty with a child), it need not be proven that the accused knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 16 years. Unlike in paragraph (1), however, it is an affirmative defense that the accused reasonably believed that the child had attained the age of 16 years.

(p) Proof of threat. In a prosecution under this section, in proving that the accused made a threat, it need not be proven that the accused actually intended to carry out the threat.

(q) Marriage.

(1) In general. In a prosecution under paragraph (2) of subsection (c) (aggravated sexual assault), or under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sexual abuse of a child), subsection (i) (abusive sexual contact with a child), subsection (j) (indecent liberty with a child), subsection (m) (wrongful sexual contact), or subsection (n) (indecent exposure), it is an affirmative defense that the accused and the other person when they engaged in the sexual act, sexual contact, or sexual conduct are married to each other.

(2) Definition. For purposes of this subsection, a marriage is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and the other person as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

(3) Exception. Paragraph (1) shall not apply if the accused's intent at the time of the sexual conduct is to abuse, humiliate, or degrade any person.

(r) Consent and mistake of fact as to consent. Lack of permission is an element of the offense in subsection (m) (wrongful sexual contact). Consent and mistake of fact as to consent are not an issue, or an affirmative defense, in a prosecution under any other subsection, except they are an affirmative defense for the sexual conduct in issue in a prosecution under subsection (a) (rape), subsection (c) (aggravated sexual assault), subsection (e) (aggravated sexual contact), and subsection (h) (abusive sexual contact).

(s) Other affirmative defenses not precluded. The enumeration in this section of some affirmative defenses shall not be construed as excluding the existence of others.

(t) Definitions. In this section:

(1) Sexual act. The term ‘sexual act’ means—

(A) Contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) The penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact. The term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, Start Printed Page 78142groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

(3) Grievous bodily harm. The term ‘grievous bodily harm’ means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in section 928 (article 128) of this chapter, and a lesser degree of injury than in section 2246(4) of title 18.

(4) Dangerous weapon or object. The term ‘dangerous weapon or object’ means—

(A) Any firearm, loaded or not, and whether operable or not;

(B) Any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or

(C) Any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.

(5) Force. The term ‘force’ means action to compel submission of another or to overcome or prevent another's resistance by—

(A) The use or display of a dangerous weapon or object;

(B) The suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or

(C) Physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

(6) Threatening or placing that other person in fear. The term ‘threatening or placing that other person in fear’ under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.

(7) Threatening or placing that other person in fear.

(A) In general. The term ‘threatening or placing that other person in fear’ under paragraph (1)(A) of subsection (c) (aggravated sexual assault), or under subsection (h) (abusive sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.

(B) Inclusions. Such lesser degree of harm includes—

(i) Physical injury to another person or to another person's property; or

(ii) A threat—

(I) To accuse any person of a crime;

(II) To expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(III) Through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

(8) Bodily harm. The term ‘bodily harm’ means any offensive touching of another, however slight.

(9) Child. The term ‘child’ means any person who has not attained the age of 16 years.

(10) Lewd act. The term ‘lewd act’ means—

(A) The intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(B) Intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.

(11) Indecent liberty. The term ‘indecent libert’ means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one's genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child's consent is not relevant.

(12) Indecent conduct. The term “indecent conduct” means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person's consent, and contrary to that other person's reasonable expectation of privacy, of—

(A) That other person's genitalia, anus, or buttocks, or (if that other person is female) that person's areola or nipple; or

(B) That other person while that other person is engaged in a sexual act, sodomy (under section 925 (article 125)), or sexual contact.

(13) Act of prostitution. The term ‘act of prostitution’ means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.

(14) Consent. The term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if—

(A) Under 16 years of age; or

(B) Substantially incapable of—

(i) Appraising the nature of the sexual conduct at issue due to—

(I) Mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) Mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) Physically declining participation in the sexual conduct at issue; or

(iii) Physically communicating unwillingness to engage in the sexual conduct at issue.

(15) Mistake of fact as to consent. The term ‘mistake of fact as to consent’ means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar Start Printed Page 78143circumstances. The accused's state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

(16) Affirmative defense. The term ‘affirmative defense’ means any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts. The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.”.

b. Elements.

(1) Rape.

(a) Rape by using force.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.

(b) Rape by causing grievous bodily harm.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.

(c) Rape by using threats or placing in fear.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

(d) Rape by rendering another unconscious.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.

(e) Rape by administration of drug, intoxicant, or other similar substance.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;

(ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and

(iii) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.

(2) Rape of a child.

(a) Rape of a child who has not attained the age of 12 years.

(i) That the accused engaged in a sexual act with a child; and

(ii) That at the time of the sexual act the child had not attained the age of twelve years.

(b) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using force.

(i) That the accused engaged in a sexual act with a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by using force against that child.

(c) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.

(i) That the accused engaged in a sexual act with a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by causing grievous bodily harm to any person.

(d) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.

(i) That the accused engaged in a sexual act with a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by threatening or placing that child in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

(e) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child unconscious.

(i) That the accused engaged in a sexual act with a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) That the accused did so by rendering that child unconscious.

(f) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.

(i) That the accused engaged in a sexual act with a child;

(ii) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years; and

(iii) (a) That the accused did so by administering to that child a drug, intoxicant, or other similar substance;

(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child; and

(c) That, as a result, that child's ability to appraise or control conduct was substantially impaired.

(3) Aggravated sexual assault.

(a) Aggravated sexual assault by using threats or placing in fear.

(i) That the accused caused another person, who is of any age, to engage in a sexual act; and

(ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

(b) Aggravated sexual assault by causing bodily harm.

(i) That the accused caused another person, who is of any age, to engage in a sexual act; and

(ii) That the accused did so by causing bodily harm to another person.

(c) Aggravated sexual assault upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness.

(i) That the accused engaged in a sexual act with another person, who is of any age; and

(Note: add one of the following elements)

(ii) That the other person was substantially incapacitated;

(iii) That the other person was substantially incapable of appraising the nature of the sexual act;

(iv) That the other person was substantially incapable of declining participation in the sexual act; or

(v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

(4) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years.

(a) That the accused engaged in a sexual act with a child; and

(b) That at the time of the sexual act the child had attained the age of 12 years but had not attained the age of 16 years.

(5) Aggravated sexual contact.

(a) Aggravated sexual contact by using force.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by using force against that other person.

(b) Aggravated sexual contact by causing grievous bodily harm. Start Printed Page 78144

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by causing grievous bodily harm to any person.

(c) Aggravated sexual contact by using threats or placing in fear.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

(d) Aggravated sexual contact by rendering another unconscious.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by rendering that other person unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii)(a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;

(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and

(c) That, as a result, that other person's ability to appraise or control conduct was substantially impaired.

(6) Aggravated sexual abuse of a child.

(a) That the accused engaged in a lewd act; and

(b) That the act was committed with a child who has not attained the age of 16 years.

(7) Aggravated Sexual Contact with a Child.

(a) Aggravated sexual contact with a child who has not attained the age of 12 years.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had not attained the age of twelve years.

(b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and

(iv) That the accused did so by using force against that child.

(c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and

(iv) That the accused did so by causing grievous bodily harm to any person.

(d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and

(iv) That the accused did so by threatening or placing that child or that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

(e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering another or that child unconscious.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and

(iv) That the accused did so by rendering that child or that other person unconscious.

(f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.

(i) That the accused engaged in sexual contact with a child; or

(ii) That the accused caused sexual contact with or by a child or by another person with a child; and

(iii) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years; and

(iv) (a) That the accused did so by administering to that child or that other person a drug, intoxicant, or other similar substance;

(b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that child or that other person; and

(c) That, as a result, that child's or that other person's ability to appraise or control conduct was substantially impaired.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats or placing in fear.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

(b) Abusive sexual contact by causing bodily harm.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(iii) That the accused did so by causing bodily harm to another person.

(c) Abusive sexual contact upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness.

(i) That the accused engaged in sexual contact with another person; or

(ii) That the accused caused sexual contact with or by another person; and

(Note: add one of the following elements)

(iii) That the other person was substantially incapacitated;

(iv) That the other person was substantially incapable of appraising the nature of the sexual contact;

(v) That the other person was substantially incapable of declining participation in the sexual contact; or

(vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.

(9) Abusive sexual contact with a child.

(a) That the accused engaged in sexual contact with a child; or Start Printed Page 78145

(b) That the accused caused sexual contact with or by a child or by another person with a child; and

(c) That at the time of the sexual contact the child had attained the age of 12 years but had not attained the age of 16 years.

(10) Indecent liberty with a child.

(a) That the accused committed a certain act or communication;

(b) That the act or communication was indecent;

(c) That the accused committed the act or communication in the physical presence of a certain child;

(d) That the child was under 16 years of age; and

(e) That the accused committed the act or communication with the intent to:

(i) arouse, appeal to, or gratify the sexual desires of any person; or

(ii) abuse, humiliate, or degrade any person.

(11) Indecent act.

(a) That the accused engaged in certain conduct; and

(b) That the conduct was indecent conduct.

(12) Forcible pandering.

(a) That the accused compelled a certain person to engage in an act of prostitution; and

(b) That the accused directed another person to said person, who then engaged in an act of prostitution.

(13) Wrongful sexual contact.

(a) That the accused had sexual contact with another person;

(b) That the accused did so without that other person's permission; and

(c) That the accused had no legal justification or lawful authorization for that sexual contact.

(14) Indecent exposure.

(a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;

(b) That the accused's exposure was in an indecent manner;

(c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused's family or household; and

(d) That the exposure was intentional.

c. Explanation.

(1) Definitions. The terms are defined in ¶ 45a(t), supra.

(2) Character of victim. See Military Rule of Evidence 412 concerning rules of evidence relating to the character of the victim of an alleged sexual offense.

(3) Indecent. In conduct cases, “Indecent” generally signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but also tends to excite lust and deprave the morals with respect to sexual relations. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards.

d. Lesser included offenses. The following lesser included offenses are based on internal cross-references provided in the statutory text of Article 120. See subsection (e) for or a further listing of possible LIOs.

(1) Rape.

(a) Article 120—aggravated sexual contact

(b) Article 134—assault with intent to commit rape

(c) Article 128—aggravated assault, assault, assault consummated by a battery

(d) Article 80—attempts

(2) Rape of a Child.

(a) Article 120—aggravated sexual contact with a child; indecent act

(b) Article 134—assault with intent to commit rape

(c) Article 128—aggravated assault; assault; assault consummated by a battery; assault consummated by a battery upon a child under 16

(d) Article 80—attempts

(3) Aggravated Sexual Assault.

(a) Article 120—abusive sexual contact

(b) Article 128—aggravated assault, assault, assault consummated by a battery

(c) Article 80—attempts

(4) Aggravated Sexual Assault of a Child.

(a) Article 120—abusive sexual contact with a child; indecent act

(b) Article 128—aggravated assault; assault; assault consummated by a battery; assault consummated by a battery upon a child under 16

(c) Article 80—attempts

(5) Aggravated Sexual Contact.

(a) Article 128—aggravated assault; assault; assault consummated by a battery

(b) Article 80—attempts

(6) Aggravated Sexual Abuse of a Child.

(a) Article 120—indecent act

(b) Article 128—assault; assault consummated by a battery; assault consummated by a battery upon a child under 16

(c) Article 80—attempts

(7) Aggravated Sexual Contact with a Child.

(a) Article 120—indecent act

(b) Article 128—assault; assault consummated by a battery; assault consummated by a battery upon a child under 16

(c) Article 80—attempts

(8) Abusive Sexual Contact.

(a) Article 128—assault; assault consummated by a battery

(b) Article 80—attempts

(9) Abusive Sexual Contact with a Child.

(a) Article 120—indecent act

(b) Article 128—assault; assault consummated by a battery; assault consummated by a battery upon a child under 16

(c) Article 80—attempts

(10) Indecent Liberty with a Child.

(a) Article 120—indecent act

(b) Article 80—attempts

(11) Indecent Act. Article 80 attempts

(12) Forcible Pandering. Article 80 attempts

(13) Wrongful Sexual Contact. Article 80 attempts

(14) Indecent Exposure. Article 80 attempts

e. Additional Lesser Included Offenses. Depending on the factual circumstances in each case, to include the type of act and level of force involved, the following offenses may be considered lesser included in addition to those offenses listed in subsection d. (See subsection (d) for a listing of the offenses that are specifically cross-referenced within the statutory text of Article 120.) The elements of the proposed lesser included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the greater offense and vice versa. See Appendix 23 for further explanation of lesser included offenses.

(1)(a) Rape by using force. Article 120—indecent act; wrongful sexual contact

(1)(b) Rape by causing grievous bodily harm. Article 120 aggravated sexual assault by causing bodily harm; abusive sexual contact by causing bodily harm; indecent act; wrongful sexual contact

(1)(c) Rape by using threats or placing in fear. Article 120 aggravated sexual assault by using threats or placing in fear; abusive sexual contact by using threats or placing in fear; indecent act; wrongful sexual contact

(1)(d) Rape by rendering another unconscious. Article 120 aggravated sexual assault upon a person substantially incapacitated; abusive sexual contact upon a person substantially incapacitated; indecent act; wrongful sexual contact.

(1)(e) Rape by administration of drug, intoxicant, or other similar substance. Article 120 aggravated sexual assault upon a person substantially incapacitated; abusive sexual contact upon a person substantially incapacitated; indecent act; wrongful sexual contact.

(2)(a)-(f) Rape of a Child who has not attained 12 years; Rape of a child who has attained the age of 12 years but has Start Printed Page 78146not attained the age of 16 years. Article 120—aggravated sexual assault of a child; aggravated sexual abuse of a child; abusive sexual contact with a child; indecent liberty with a child; wrongful sexual contact

(3) Aggravated Sexual Assault. Article 120—wrongful sexual contact; indecent act

(4) Aggravated Sexual Assault of a Child. Article 120—aggravated sexual abuse of a child; indecent liberty with a child; wrongful sexual contact

(5)(a) Aggravated Sexual Contact by force. Article 120—indecent act; wrongful sexual contact

(5)(b) Aggravated Sexual Contact by causing grievous bodily harm. Article 120—abusive sexual contact by causing bodily harm; indecent act; wrongful sexual contact

(5)(c) Aggravated Sexual Contact by using threats or placing in fear. Article 120—abusive sexual contact by using threats or placing in fear; indecent act; wrongful sexual contact

(5)(d) Aggravated Sexual Contact by rendering another unconscious. Article 120 abusive sexual contact upon a person substantially incapacitated; indecent act; wrongful sexual contact

(5)(e) Aggravated Sexual Contact by administration of drug, intoxicant, or other similar substance. Article 120 abusive sexual contact upon a person substantially incapacitated; indecent act; wrongful sexual contact

(6) Aggravated Sexual Abuse of a Child. Article 120—aggravated sexual contact with a child; aggravated sexual abuse of a child; indecent liberty with a child; wrongful sexual contact

(7) Aggravated Sexual contact with a Child. Article 120—abusive sexual contact with a child; indecent liberty with a child; wrongful sexual contact

(8) Abusive Sexual Contact. Article 120—wrongful sexual contact; indecent act

(9) Abusive Sexual Contact with a Child. Article 120—indecent liberty with a child; wrongful sexual contact

(10) Indecent Liberty with a Child. Article 120—wrongful sexual contact

f. Maximum punishment.

(1) Rape and Rape of a Child. Death or such other punishment as a court martial may direct.

(2) Aggravated Sexual Assault. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

(3) Aggravated Sexual Assault of a Child who has attained the age of 12 years but has not attained the age of 16 years, Aggravated Sexual Abuse of a Child, Aggravated Sexual Contact, and Aggravated Sexual Contact with a Child. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(4) Abusive Sexual Contact with a Child and Indecent Liberty with a Child. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

(5) Abusive Sexual Contact. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.

(6) Indecent Act or Forcible Pandering. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(7) Wrongful Sexual Contact or Indecent Exposure. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

g. Sample specifications.

(1) Rape.

(a) Rape by using force.

(i) Rape by use or display of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, cause ____ to engage in a sexual act, to wit: ____, by (using a dangerous weapon or object, to wit: ____ against (him)(her)) (displaying a dangerous weapon or object, to wit: ____ to (him)(her)).

(ii) Rape by suggestion of possession of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, cause ____ to engage in a sexual act, to wit: ____, by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her) to believe it was a dangerous weapon or object.

(iii) Rape by using physical violence, strength, power, or restraint to any person.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, cause ____ to engage in a sexual act, to wit: ____, by using (physical violence) (strength) (power) (restraint applied to ____), sufficient that (he)(she) could not avoid or escape the sexual conduct.

(b) Rape by causing grievous bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20, ____cause to engage in a sexual act, to wit: ____, by causing grievous bodily harm upon (him)(her) (____), to wit: a (broken leg)(deep cut)(fractured skull) (____).

(c) Rape by using threats or placing in fear.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____cause to engage in a sexual act, to wit: ____, by [threatening] [placing (him)(her) in fear] that (he)(she) (__) will be subjected to (death)(grievous bodily harm) (kidnapping) by __.

(d) Rape by rendering another unconscious.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____cause to engage in a sexual act, to wit: ____, by rendering (him)(her) unconscious.

(e) Rape by administration of drug, intoxicant, or other similar substance.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____cause_to engage in a sexual act, to wit: ____, by administering to (him)(her) a drug, intoxicant, or other similar substance, (by force) (by threat of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her) ability to [(appraise) (control)] [(his)(her)] conduct.

(2) Rape of a child.

(a) Rape of a child who has not attained the age of 12 years.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____engage in a sexual act, to wit: ____ with, a child who had not attained the age of 12 years.

(b) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using force.

(i) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____engage in a sexual act, to wit: ____, with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by (using a dangerous weapon or object, to wit: against (him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)).

(ii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of possession of dangerous weapon or object.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____engage in a sexual act, to wit: ____, Start Printed Page 78147with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)__ to believe it was a dangerous weapon or object.

(iii) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using physical violence, strength, power, or restraint to any person.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____engage in a sexual act, to wit: ____ with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by using (physical violence) (strength) (power) (restraint applied to ) sufficient that (he)(she) could not avoid or escape the sexual conduct.

(c) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: ____, with____, ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by causing grievous bodily harm upon (him)(her)(____), to wit: a (broken leg)(deep cut)(fractured skull)(____).

(d) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: ____, with____, ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by [threatening] [placing (him)(her) in fear] that (he)(she) (____) would be subjected to (death)(grievous bodily harm) (kidnapping) by _.

(e) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child unconscious.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: ____, with____, ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by rendering (him)(her) unconscious.

(f) Rape of a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: ____, with____, ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, by administering to (him)(her) a drug, intoxicant, or other similar substance (by force) (by threat of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her) ability to [(appraise)(control)][(his)(her)] conduct.

(3) Aggravated sexual assault.

(a) Aggravated sexual assault by using threats or placing in fear.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ cause ____ to engage in a sexual act, to wit: ____, by [threatening][placing(him)(her) in fear of] [(physical injury to _)(injury to __'s property)(accusation of crime)(exposition of secret)(abuse of military position)(____)].

(b) Aggravated sexual assault by causing bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ cause ____ to engage in a sexual act, to wit: ____, by causing bodily harm upon (him)(her)(____), to wit: .

(c) Aggravated sexual assault upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: with____, ____,who was (substantially incapacitated) [substantially incapable of (appraising the nature of the sexual act)(declining participation in the sexual act) (communicating unwillingness to engage in the sexual act)].

(4) Aggravated sexual assault of a child who has attained the age of 12 years but has not attained the age of 16 years.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20, ____ engage in a sexual act, to wit: with____, ____, who had attained the age of 12 years, but had not attained the age of 16 years.

(5) Aggravated sexual contact.

(a) Aggravated sexual contact by using force.

(i) Aggravated sexual contact by use or display of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ___) (cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by (using a dangerous weapon or object, to wit: ____ against (him)(her)) (displaying a dangerous weapon or object, to wit: ____ to (him)(her)).

(ii) Aggravated sexual contact by suggestion of possession of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____)(cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)(____) to believe it was a dangerous weapon or object.

(iii) Aggravated sexual contact by using physical violence, strength, power, or restraint to any person.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____,[(engage in sexual contact, to wit: ____ with ____)(cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by using (physical violence) (strength) (power) (restraint applied to ____), sufficient that (he)(she)(____) could not avoid or escape the sexual conduct.

(b) Aggravated sexual contact by causing grievous bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____)(cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by causing grievous bodily harm upon (him)(her)(____), to wit: ____ a (broken leg)(deep cut)(fractured skull)(____).

(c) Aggravated sexual contact by using threats or placing in fear. Start Printed Page 78148

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____)(cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by [(threatening (him)(her)(____)] [(placing(him)(her)(____) in fear] that (he)(she)(____) will be subjected to (death)(grievous bodily harm)(kidnapping) by ____.

(d) Aggravated sexual contact by rendering another unconscious.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____20 ____, [(engage in sexual contact, to wit: with)(cause to engage in sexual contact, to wit: ____, with ____) (cause ____ sexual contact with or by ____, to wit: ____)] by rendering (him)(her)(____) unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____)(cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by administering to (him)(her)(____) a drug, intoxicant, or other similar substance, (by force) (by threat of force) (without (his)(her)(____) knowledge or permission), and thereby substantially impaired (his)(her)(____) ability to [(appraise) (control)] [(his)(her)] conduct.

(6) Aggravated sexual abuse of a child.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, engage in a lewd act, to wit: ____ with ____, a child who had not attained the age of 16 years.

(7) Aggravated sexual contact with a child.

(a) Aggravated sexual contact with a child who has not attained the age of 12 years.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had not attained the age of 12 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years, to wit: ____)].

(b) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using force.

(i) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by use or display of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by (using a dangerous weapon or object, to wit: ____ against (him)(her)(____)) (displaying a dangerous weapon or object, to wit: ____ to (him)(her)(____)).

(ii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by suggestion of possession of dangerous weapon or object.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by the suggestion of possession of a dangerous weapon or an object that was used in a manner to cause (him)(her)(____) to believe it was a dangerous weapon or object.

(iii) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using physical violence, strength, power, or restraint to any person.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by using (physical violence) (strength) (power) (restraint applied to ____) sufficient that (he)(she)(____) could not avoid or escape the sexual conduct.

(c) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by causing grievous bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by causing grievous bodily harm upon (him)(her)(____), to wit: ____ a (broken leg)(deep cut)(fractured skull)(____).

(d) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by using threats or placing in fear.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by [threatening] [placing (him)(her)(____) in fear] that (he)(she)(____) will be subjected to (death) (grievous bodily harm)(kidnapping) by ____.

(e) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by rendering that child or another unconscious.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20____, [(engage in sexual contact, to wit: ____ Start Printed Page 78149with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years, but had not attained the age of 16 years, to wit: ____)] by rendering (him)(her)(____) unconscious.

(f) Aggravated sexual contact with a child who has attained the age of 12 years but has not attained the age of 16 years by administration of drug, intoxicant, or other similar substance.

In that ____(personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____, a child who had not attained the age of 12 years but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had not attained the age of 12 years but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had not attained the age of 12 years but had not attained the age of 16 years, to wit: ____)] by administering to (him)(her)(____) a drug, intoxicant, or other similar substance (by force) (by threat of force) (without (his)(her)(____) knowledge or permission), and thereby substantially impaired (his)(her)(____) ability to [(appraise) (control)][(his) (her)] conduct.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats or placing in fear.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____) (cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by [(threatening) (placing (him)(her)(____) in fear of)] [(physical injury to ____)(injury to ____;'s property)(accusation of crime)(exposition of secret)(abuse of military position)(____)].

(b) Abusive sexual contact by causing bodily harm.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____) (cause ____ to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] by causing bodily harm upon (him)(her)(____), to wit: (____).

(c) Abusive sexual contact by engaging in a sexual act with a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or substantially incapable of communicating unwillingness.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, [(engage in sexual contact, to wit: ____ with ____) (cause to engage in sexual contact, to wit: ____, with ____) (cause sexual contact with or by ____, to wit: ____)] while (he)(she)(____) was [substantially incapacitated] [substantially incapable of (appraising the nature of the sexual contact) (declining participation in the sexual contact) (communicating unwillingness to engage in the sexual contact)].

(9) Abusive sexual contact with a child.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____,[(engage in sexual contact, to wit: ____ with ____, a child who had attained the age of 12 years but had not attained the age of 16 years)(cause ____ to engage in sexual contact, to wit: ____, with ____, a child who had attained the age of 12 years but had not attained the age of 16 years) (cause sexual contact with or by ____, a child who had attained the age of 12 years but had not attained the age of 16 years, to wit: ____)].

(10) Indecent liberties with a child.

In that ____ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, (take indecent liberties) (engage in indecent conduct) in the physical presence of ____, a (female) (male) under 16 years of age, by (communicating the words: to wit: ____) (exposing one's private parts, to wit: ____) (____), with the intent to [(arouse) (appeal to) (gratify) the (sexual desire) of the ____ (or ____)] [(abuse)(humiliate)(degrade) ____].

(11) Indecent act.

In that ____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ____ 20 ____, wrongfully commit indecent conduct, to wit ____.

(12) Forcible pandering.

In that ____ (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about ____ 20 ____, compel ____ to engage in [(a sexual act)(sexual contact) (lewd act), to wit: ____] for the purpose of receiving money or other compensation with ____ (a) person(s) to be directed to (him)(her) by the said ____.

(13) Wrongful sexual contact.

In that ____ (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about ____ 20 ____, engage in sexual contact with ____, to wit: ____, and such sexual contact was without legal justification or lawful authorization and without the permission of ____.

(14) Indecent exposure.

In that ____ (personal jurisdiction data), did (at/on board-location), (subject-matter jurisdiction data, if required), on or about ____ 20 ____, intentionally (expose in an indecent manner (his) (her) (____) (____) while (at the barracks window) (in a public place)(____).

(e) Paragraph 50, Art. 124, Maiming, paragraph (e) is amended to read: e. Maximum Punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(f) Paragraph 51, Article 125, Sodomy, paragraph (d) is amended by deleting the following lesser included offenses under paragraph (d)(1)(b); (d)(2)(c); and (d)(3)(a):

(d)(1)(b) Article 134 indecent acts with a child under 16

(d)(2)(c) Article 134 indecent assault

(d)(3)(a) Article 134 indecent acts with another

(g) Paragraph 51, Article 125, paragraph (d) is amended by adding at the end of paragraph d:

[Note: Consider lesser included offenses under Art. 120 depending on the factual circumstances in each case.]

(h) Paragraph 54, Art. 128, Assault, paragraph (b)(4)(a) is amended to read:

(4) Aggravated Assault.

(a) Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm.

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

(ii) That the accused did so with a certain weapon, means, or force;

(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and

(iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.

(Note: Add any of the following as applicable)

(v) That the weapon was a loaded firearm.

(vi) That the person was a child under the age of 16 years.

(i) Paragraph 54, Art. 128, Assault, paragraph (b)(4)(b) is amended to read: Start Printed Page 78150

(4) Aggravated Assault.

(b) Assault in which grievous bodily harm is intentionally inflicted.

(i) That the accused assaulted a certain person;

(ii) That grievous bodily harm was thereby inflicted upon such person;

(iii) That the grievous bodily harm was done with unlawful force or violence; and

(iv) That the accused, at the time, had the specific intent to inflict grievous bodily harm.

(Note: Add any of the following as applicable)

(v) That the injury was inflicted with a loaded firearm.

(vi) That the person was a child under the age of 16 years.

(j) Paragraph 54, Art. 128, Assault, paragraph (c)(4)(a) is amended by adding new paragraph (c)(4)(a)(v) after (c)(4)(a)(iv):

(4) Aggravated Assault.

(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.

(v) When committed upon a child under 16 years of age. The maximum punishment is increased when aggravated assault with a dangerous weapon or means likely to produce death or grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.

(k) Paragraph 54, Art. 128, Assault, paragraph (c)(4)(b) is amended by adding new paragraph (c)(4)(b)(iv):

(4) Aggravated Assault.

(b) Assault in which grievous bodily harm is intentionally inflicted.

(iv) When committed upon a child under 16 years of age. The maximum punishment is increased when aggravated assault with intentional infliction of grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.

(l) Paragraph 54, Art. 128, Assault, paragraph (d)(6) is amended to read: d. Lesser included offenses.

(6) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. Article 128 simple assault; assault consummated by a battery; (when committed upon a child under the age of 16 years—assault consummated by a battery upon a child under the age of 16 years).

(m) Paragraph 54, Art. 128, Assault, paragraph (d)(7) is amended to read: d. Lesser included offenses.

(7) Assault in which grievous bodily harm is intentionally inflicted. Article 128 simple assault; assault consummated by a battery; assault with a dangerous weapon; (when committed upon a child under the age of 16 years—assault consummated by a battery upon a child under the age of 16 years).

(n) Paragraph 54, Art. 128, Assault, paragraph (e)(8) is amended to read:

e. Maximum punishment.

(8) Aggravated assault with a dangerous weapon or other means of force to produce death or grievous bodily harm.

After current (a), change (b) as follows below and current (b) becomes (c):

(b) Aggravated assault with a dangerous weapon or other means of force to produce death or grievous bodily harm when committed upon a child under the age of 16 years. Dishonorable discharge, total forfeitures, and confinement for 5 years.

(o) Paragraph 54, Art. 128, Assault, paragraph (e)(9) is amended to read:

e. Maximum punishment.

(9) Aggravated assault in which grievous bodily harm is intentionally inflicted.

After current (a), change (b) as follows below and current (b) becomes (c):

(b) Aggravated assault in which grievous bodily harm is intentionally inflicted when committed upon a child under the age of 16 years. Dishonorable discharge, total forfeitures, and confinement for 8 years.

(p) Paragraph 54, Art. 128, Assault, paragraph (f)(8) is amended to read:

f. Sample specifications.

(8) Assault, Aggravated with a dangerous weapon, means or force.

In that ____ (personal jurisdiction data), did, (at/on board location)(subject matter jurisdiction data, if required), on or about ____ 20 ____, commit an assault upon ____ (a child under the age of 16 years) by (shooting) (pointing) (striking) (cutting) (____) (at him/her)(him/her) (in)(on)(the ____) with (a dangerous weapon)(a (means)(force) likely to produce death or grievous bodily harm), to wit: a (loaded firearm) (pickax) (bayonet) (club) (____).

(q) Paragraph 54, Art. 128, Assault, paragraph (f)(8) is amended to read:

f. Sample specifications.

(9) Assault, aggravated inflicting grievous bodily harm.

In that ____ (personal jurisdiction data), did, (at/on board location)(subject matter jurisdiction data, if required), on or about ____ 20 ____, commit an assault upon ____ (a child under the age of 16 years) by (shooting) (striking) (cutting) (____) (him/her)(on) the with a (loaded firearm)(club)(rock)(brick)( and did thereby intentionally inflict grievous bodily harm upon him/her, to wit: a (broken leg)(deep cut)(fractured skull)(____).

(r) Paragraph 64, Article 134 Assault w/ intent to commit murder, voluntary, manslaughter, rape, robberty, sodomy, arson, burglary, or housebreaking, paragraph (c)(4), 1st sentence, is amended to read: (c)(4) Assault with intent to commit rape. In assault with intent to commit rape, the accused must have intended to complete the offense.

(s) Paragraph 64, Article 134 Assault w/ intent to commit murder, voluntary, manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking, is amended by deleting the following lesser included offense under paragraph (d)(3)(b):

(d)(3)(b) Article 134 indecent assault

(t) New paragraph 68a, Article 134—(Child Endangerment) is inserted:

68a. Article 134—(Child Endangerment)

a. Text. See paragraph 60.

b. Elements.

Child Endangerment

(1) That the accused had a duty for the care of a certain child;

(2) That the child was under the age of 16 years;

(3) That the accused endangered the child's mental or physical health, safety, or welfare through design or culpable negligence;

and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

c. Explanation.

(1) In general. This offense is intended to prohibit and therefore deter child endangerment through design or culpable negligence.

(2) Design. Design means on purpose, intentionally, or according to plan and requires specific intent to endanger the child.

(3) Culpable negligence. Culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. In the context of this offense, culpable negligence may include acts that, when viewed in the light of human experience, might foreseeably result in harm to a child, even though such harm would not necessarily be the natural and probable consequences of such acts. In this regard, the age and maturity of the child, the conditions surrounding the neglectful conduct, the proximity of assistance available, the nature of the environment in which the child may have been left, the provisions made for care of the child, and the location of the Start Printed Page 78151parent or adult responsible for the child relative to the location of the child, among others, may be considered in determining whether the conduct constituted culpable negligence.

(4) Harm. Actual physical or mental harm to the child is not required. The offense requires that the accused's actions reasonably could have caused physical or mental harm or suffering. However, if the accused's conduct does cause actual physical or mental harm, the potential maximum punishment increases. See Paragraph 54(c)(4)(a)(iii) for an explanation of “grievous bodily harm”.

(4) Endanger. “Endanger” means to subject one to reasonable probability of harm.

(5) Age of victim as a factor. While this offense may be committed against any child under 16, the age of the victim is a factor in the culpable negligence determination. Leaving a teenager alone for an evening may not be culpable (or even simple) negligence; leaving an infant or toddler for the same period might constitute culpable negligence. On the other hand, leaving a teenager without supervision for an extended period while the accused was on temporary duty outside commuting distance might constitute culpable negligence.

(6) Duty required. The duty of care is determined by the totality of the circumstances and may be established by statute, regulation, legal parent-child relationship, mutual agreement, or assumption of control or custody by affirmative act. When there is no duty of care of a child, there is no offense under this paragraph. Thus, there is no offense when a stranger makes no effort to feed a starving child or an individual/neighbor not charged with the care of a child does not prevent the child from running and playing in the street.

d. Lesser included offenses.

(1) Child Endangerment by Design.

Article 134—Child Endangerment by culpable negligence.

Article 80—Attempts.

e. Maximum punishment.

i. Endangerment by design resulting in grievous bodily harm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.

ii. Endangerment by design resulting in harm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

iii. Other cases by design. Dishonorable discharge, forfeiture of all pay and allowances and confinement for 4 years.

iv. Endangerment by culpable negligence resulting in grievous bodily harm. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

v. Endangerment by culpable negligence resulting in harm. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 2 years.

vi. Other cases by culpable negligence. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

i. Resulting in grievous bodily harm.

In that ____(personal jurisdiction data),(at/on board-location) (subject matter jurisdiction data, if required) on or about ____, 20____, had a duty for the care of ____, a child under the age of 16 years and did endanger the (mental health) (physical health)(safety)(welfare) of said ____, by (leaving the said ____ unattended in his quarters for over ____ hours/days with no adult present in the home) (by failing to obtain medical care for the said ____'s diabetic condition) (____), and that such conduct (was by design)(constituted culpable negligence) (which resulted in grievous bodily harm, to wit:) (broken leg)(deep cut)(fractured skull)(____)).

ii. Resulting in harm.

In that____(personal jurisdiction data),(at/on board—location) (subject matter jurisdiction data, if required) on or about____, 20____, had a duty for the care of____, a child under the age of 16 years, and did endanger the (mental health) (physical health)(safety)(welfare) of said____, by (leaving the said ____unattended in his quarters for over ____hours/days with no adult present in the home) (by failing to obtain medical care for the said____'s diabetic condition) (____), and that such conduct (was by design)(constituted culpable negligence) (which resulted in (harm, to wit:) (a black eye)(bloody nose)(minor cut)(____).

iii. Other cases.

In that____(personal jurisdiction data),(at/on board—location) (subject matter jurisdiction data, if required) on or about ____, 20____, was responsible for the care of____, a child under the age of 16 years, and did endanger the (mental health) (physical health)(safety)(welfare) of said____, by (leaving the said ____unattended in his quarters for over ____hours/days with no adult present in the home) (by failing to obtain medical care for the said____'s diabetic condition) (____), and that such conduct (was by design)(constituted culpable negligence).

(u) Paragraph 63, Article 134 Assault, Indecent is deleted.

(v) Paragraph 87, Indecent acts or liberties with a child is deleted.

(w) Paragraph 88, Indecent Exposure is deleted.

(x) Paragraph 90, Indecent acts with another is deleted.

(y) Paragraph 89, Indecent language, paragraph (c), is amended to read:

c. Explanation. “Indecent” language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards. See paragraph 45 if the communication was made in the physical presence of a child.

(u) Paragraph 97. Article 134 Pandering and Prostitution is amended by deleting “compel” throughout subsection (b)(2) to read:

b. Elements

(2) Pandering by inducing, enticing, or procuring act of prostitution.

(a) That the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused;

(b) That this inducing, enticing, or procuring was wrongful;

(c) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

(v) Paragraph 97. Article 134 Pandering and Prostitution is amended by deleting “compel” throughout the subtitle and subsection (f)(2) to read:

(2) Inducing, enticing, or procuring act of prostitution.

In that____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about____ 20____, wrongfully (induce) (entice) (procure) ____to engage in (an act)(acts) of (sexual intercourse for hire and reward) with persons to be directed to (him/her) by the said____.

Sec. 4. These amendments shall take effect on [30 days after signature].

(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to [30 days after signature] that was not punishable when done or omitted.

(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to Start Printed Page 78152[30 days after signature], and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.

The White House, Changes to the Discussion accompanying the Manual for Courts Martial, United States

(a) Amend the Discussion accompanying R.C.M. 810(d) to read as follows:

“The trier of fact is not bound by the sentence previously adjudged or approved at a rehearing. The members should not be advised of the sentence limitation under this rule. See R.C.M. 1005(e)(1). An appropriate sentence on a retried or reheard offense should be adjudged without regard to any credit to which the accused may be entitled. See R.C.M. 103(2) and R.C.M. 103(3) as to when a rehearing may be a capital case.”

(b) Insert the following new Discussion section after RCM 916(j):

Discussion

The statutory text of Article 120(r) specifically limits the affirmative defense for mistake of fact as to consent to Article 120(a) rape, Article 120(c) aggravated sexual assault, Article 120(e) aggravated sexual contact, and Article 120(h) abusive sexual contact. For all other offenses under Article 120, consent is not an issue and mistake of fact as to consent is not an affirmative defense.

(c) Amend the Discussion accompanying RCM 916(j)(2) in the 3rd paragraph, 1st sentence, to read:

Examples of offenses in which the accused's intent or knowledge is immaterial include: rape of a child, aggravated sexual contact with a child, or indecent liberty with a child (if the victim is under 12 years of age, knowledge or belief as to age is immaterial).

(d) Amend the Discussion accompanying R.C.M. 917(c) by adding the following sentence after the last sentence in the Discussion:

“See R.C.M. 1102(b)(2) for military judge's authority, upon motion or sua sponte, to enter finding of not guilty after findings but prior to authentication of the record.”

(e) Amend the Discussion accompanying R.C.M. 1005(e)(1) to read as follows:

“The maximum punishment that may be adjudged is the lowest of the total permitted by the applicable paragraph(s) in Part IV for each separate offense of which the accused was convicted (see also R.C.M. 1003 concerning additional limits on punishments and additional punishments which may be adjudged) or the jurisdictional limit of the court-martial (see R.C.M. 201(f) and R.C.M. 1301(d)). See also discussion to RCM 810(d). The military judge may upon request or when otherwise appropriate instruct on lesser punishments. See R.C.M. 1003. If an additional punishment is authorized under R.C.M. 1003(d), the members must be informed of the basis for the increased punishment.

A carefully drafted sentence worksheet ordinarily should be used and should include reference to all authorized punishments in the case.”

(f) A Discussion accompanying R.C.M. 1107(f)(5)(A) is inserted to read as follows:

“In approving a sentence not in excess of or more severe than one previously approved (see R.C.M. 810(d)), a convening authority is prohibited from approving a punitive discharge more severe than one formerly approved, e.g. a convening authority is prohibited from approving a dishonorable discharge if a bad conduct discharge had formerly been approved. Otherwise, in approving a sentence not in excess of or more severe than one previously imposed, a convening authority is not limited to approving the same or lesser type of ‘other punishments“ formerly approved.”

Changes to Appendix 12, Maximum Punishment Chart

Appendix 12 is amended as follows:

Amend Article 120 by deleting the following:

Rape

Carnal Knowledge

With child at least 12

With child under the age of 12

Amend Article 120 by inserting the following:

Rape and Rape of a Child Death,DD, BCDLifeTotal
Aggravated Sexual AssaultDD, BCD30 yrsTotal
Aggravated Sexual Assault of a ChildDD, BCD20 yrsTotal
Aggravated Sexual Abuse of a ChildDD, BCD20 yrsTotal
Aggravated Sexual ContactDD, BCD20 yrsTotal
Aggravated Sexual Contact with a ChildDD, BCD20 yrsTotal
Abusive Sexual Contact with a ChildDD, BCD15 yrsTotal
Indecent Liberty with a ChildDD, BCD15 yrsTotal
Abusive Sexual ContactDD, BCD7 yrsTotal
Indecent ActDD, BCD5 yrsTotal
Forcible PanderingDD, BCD5 yrsTotal
Wrongful Sexual ContactDD, BCD1 yrTotal
Indecent ExposureDD, BCD1 yrTotal

Amend Article 124 to read:

MaimingDD, BCD20 yrsTotal

Amend Article 128 by inserting the following:

Aggravated assault with a dangerous weapon or other means of force to produce death or grievous bodily harm when committed upon a child under the age of 16 years.

DD, BCD5 yrsTotal

Aggravated assault in which grievous bodily harm is intentionally inflicted when committed upon a child under the age of 16 years

XDD, BCD8 yrsTotal

Amend Article 134 by inserting:

Child Endangerment:

Endangerment by design resulting in grievous bodily harmDD, BCD8 yrsTotal
Endangerment by design resulting in harmDD, BCD5 yrsTotal
Other cases by designDD, BCD4 yrsTotal
Endangerment by culpable negligence resulting in grievous bodily harmDD, BCD3 yrsTotal
Endangerment by culpable negligence resulting in harmBCD2 yrsTotal
Other cases by culpable negligence BCD1 yrTotal

Amend Article 134 by deleting the following:

Assault—Indecent

Indecent Acts of Liberties with a Child Indecent Exposure

Indecent Acts with Another

Changes to Appendix 21, Analysis of Rules for Courts Martial

(a) Amend the Analysis accompanying R.C.M. 916(b) by inserting the following paragraph at the end thereof:

200__ Amendment. Changes to this paragraph, deleting “carnal knowledge”, Start Printed Page 78153are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.

(b) Amend the Analysis accompanying R.C.M. 916(j)(2) by inserting the following paragraph at the end thereof:

200__ Amendment. Changes to this paragraph, deleting “carnal knowledge” and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.

(c) Insert a new Analysis section to accompany new subparagraph R.C.M. 916(j)(3) at the end of the analysis discussing subsection RCM 916(j):

200__ Amendment. This paragraph is new and is based on the mistake of fact defense incorporated in section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.

(d) Amend the Analysis accompanying R.C.M. 920(e) by inserting the following paragraph at the end thereof:

200__ Amendment. Changes to this paragraph, deleting “carnal knowledge” and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.

(e) Amend the Analysis accompanying R.C.M. 1004(c) by inserting the following paragraph at the end thereof :

200__ Amendment. Changes to this paragraph adding sexual offenses other than rape are based on subsection (d) of section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct.

(f) Amend the analysis accompanying R.C.M. 1102(d) by inserting the following paragraph at the end thereof:

200__ Amendment. For purposes of this rule, the list of appropriate reviewing authorities included in the 1994 amendment includes any court authorized to review cases on appeal under the UCMJ.

Changes to Appendix 22, Analysis of the Military Rules of Evidence

(a) Amend the Analysis accompanying MRE 412, Relevance of alleged victim's sexual behavior or sexual predisposition, by inserting the following paragraph at the end thereof:

200__ Amendment. This amendment is intended to aid practitioners in applying the balancing test of MRE 412. Specifically, the amendment clarifies: (1) That under MRE 412, the evidence must be relevant for one of the purposes highlighted in subdivision (b); (2) that in conducting the balancing test, the inquiry is whether the probative value of the evidence outweighs the danger of unfair prejudice to the victim's privacy; and (3) that even if the evidence is admissible under MRE 412, it may still be excluded under MRE 403. The proposed changes highlight current practice. See U.S. v. Banker, 60 M.J. 216, 223 (2004) (Citing “It would be illogical if the judge were to evaluate evidence 'offered by the accused' for unfair prejudice to the accused. Rather, in the context of this rape shield statute, the prejudice in question is, in part, that to the privacy interests of the alleged victim. Sanchez, 44 M.J. at 178 (“[I]n determining admissibility there must be a weighing of the probative value of the evidence against the interest of shielding the victim's privacy.”).”

Moreover, the amendment clarifies that MRE 412 applies in all cases involving a sexual offense wherein the person against whom the evidence is offered can reasonably be characterized as a “victim of the alleged sexual offense.” Thus, the rule applies to: “consensual sexual offense”, “nonconsensual sexual offenses”; sexual offenses specifically proscribed under the UCMJ, e.g., rape, aggravated sexual assault, etc.; those federal sexual offenses DoD is able to prosecute under clause 3 of Article 134, U.C.M.J., e.g., 18 U.S.C. § 2252A (possession of child pornography); and state sexual offenses DoD is able to assimilate under the Federal Assimilative Crimes Act (18 U.S.C. § 13).

(b) Amend the analysis accompanying M.R.E. 503(b) by inserting the following paragraph at the end thereof:

“200__ Amendment: The previous subsection (2) of MRE 503(b) was renumbered subsection (3) and the new subsection (2) was inserted to define the term “clergyman's assistant.”

(c) Amend the Analysis accompanying M.R.E. 504 by inserting the following paragraph at the end thereof:

“200_ Amendment: (d) Definition. Rule 504(d) modifies the rule and is intended to afford additional protection to children. Previously, the term “a child of either,” referenced in Rule 504(c)(2)(A), did not include a “de facto” child or a child who is under the physical custody of one of the spouses but lacks a formal legal parent-child relationship with at least one of the spouses. See U.S. v. McCollum, 58 M.J. 323 (C.A.A.F. 2003). Prior to this amendment, an accused could not invoke the spousal privilege to prevent disclosure of communications regarding crimes committed against a child with whom he or his spouse had a formal, legal parent-child relationship; however, the accused could invoke the privilege to prevent disclosure of communications where there was not a formal, legal parent-child relationship. This distinction between legal and “de facto” children resulted in unwarranted discrimination among child victims and ran counter to the public policy of protecting children. Rule 504(d) recognizes the public policy of protecting children by addressing disparate treatment among child victims entrusted to another. The “marital communications privilege * * * should not prevent 'a properly outraged spouse with knowledge from testifying against a perpetrator' of child abuse within the home regardless of whether the child is part of that family.” U.S. v. McCollum, 58 M.J. 323, 342, fn.6 (C.A.A.F. 2003) (citing U.S. v. Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997)).

Changes to Appendix 23, Analysis of Punitive Articles

(a) The Analysis accompanying Article 118, Murder, is amended by inserting the following:

43. Article 118 Murder

a. Text.

b. Elements.

200__ Amendment. Paragraph (4) of the text and elements has been amended for consistency with the changes to Article 118 under section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006. See subsection (d) of Section 552.

(b) The Analysis accompanying Article 119, Manslaughter, is amended by inserting the following: Start Printed Page 78154

44. Article 119 Manslaughter

b. Elements.

200__ Amendment. Paragraph (4) of the elements has been amended for consistency with the changes to Article 118 under section 552 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006. See subsection (d) of Section 552.

(c) The Analysis accompanying Article 120, Rape, Sexual Assault, and other Sexual Misconduct, is amended by inserting the following:

45. Article 120—Rape, Sexual Assault, and other Sexual Misconduct 200__ Amendment. Changes to this paragraph are contained in Div. A. Title V. Subtitle E, section 552(a)(1) of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 119 Stat. 3257 (6 January 2006), which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. In accordance with section 552(c) of that Act, Pub. L. 109 163, 119 Stat. 3263, the amendment to the Article applies only with respect to offenses committed on or after 1 October 2007.

Nothing in these amendments invalidates any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to 1 October 2007. Any such nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.

This new Article 120 consolidates several sexual misconduct offenses and is generally based on the Sexual Abuse Act of 1986, 18 U.S.C. Sections 2241-2245. The following is a list of offenses that have been replaced by this new paragraph 45:

(1) Paragraph 63, 134 Assault—Indecent, has been replaced in its entirety by three new offenses under paragraph 45. See subsections (e) Aggravated Sexual Contact, (h) Abusive Sexual Contact, and (m) Wrongful Sexual Contact.

(2) Paragraph 87, 134 Indecent Acts or Liberties with a Child, has been replaced in its entirety by three new offenses under paragraph 45. See subsections (g) Aggravated Sexual Contact with a Child, (i) Abusive Sexual Contact with a Child, and (j) Indecent Liberty with a Child.

(3) Paragraph 88, Article 134 Indecent Exposure, has been replaced in its entirety by a new offense under paragraph 45. See subsection (n) Indecent Exposure.

(4) Paragraph 90, Article 134 Indecent Acts with Another, has been replaced in its entirety by a new offense under paragraph 45. See subsection (k) Indecent Act.

(5) Paragraph 97, Article 134 Pandering and Prostitution, has been amended. The act of compelling another person to engage in an act of prostitution with another person will no longer be an offense under paragraph 97 and has been replaced by a new offense under paragraph 45. See subsection (l), Forcible Pandering.

c. Explanation. Subparagraph (3), definition of “indecent”, is taken from paragraphs 89.c and 90.c of the Manual (2005 ed.) and is intended to consolidate the definitions of “indecent,” as used in the former offenses under Article 134 of “Indecent acts or liberties with a child,” “Indecent exposure,” and “Indecent acts with another,” formerly at paragraphs 87, 88, and 90 of the 2005 Manual, and “Indecent language,” at paragraph 89. The application of this single definition of “indecent” to the offenses of “Indecent liberty with a child,” “Indecent act,” and “Indecent exposure” under Article 120 is consistent with the construction given to the former Article 134 offenses in the 2005 Manual that were consolidated into Article 120. See e.g. United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004).

e. Additional Lesser Included Offenses. The test to determine whether an offense is factually the same as another offense, and therefore lesser-included to that offense, is the “elements” test. United States v. Foster, 40 M.J. 140, 142 (C.M.A.1994). Under this test, the court considers “whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. Rather than adopting a literal application of the elements test, the Court stated that resolution of lesser-included claims “can only be resolved by lining up elements realistically and determining whether each element of the supposed 'lesser' offense is rationally derivative of one or more elements of the other offense—and vice versa.” Foster, 40 M.J. at 146. Whether an offense is a lesser-included offense is a matter of law that the Court will consider de novo. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.2002).

f. Maximum punishment. See 1995 Amendment regarding maximum punishment of death.

(d) The analysis accompanying Article 124, Maiming, is amended by inserting the following at the end of current analysis paragraph:

e. Maximum punishment. 200__ amendment. The maximum punishment for the offense of maiming was increased from 7 years confinement to 20 years confinement, consistent with the federal offense of maiming, 18 U.S.C. § 114.

(e) The Analysis accompanying Article 125, Sodomy, is amended by inserting the following:

d. Lesser included offenses.

200__ Amendment.

The former Paragraph 87, (1)(b), Article 134 Indecent Acts or Liberties with a Child has been replaced in its entirety by paragraph 45.

The former Paragraph 63, (2)(c), Article 134 Assault—Indecent, has been replaced in its entirety by paragraph 45.

The former Paragraph 90(3)(a), Article 134 Indecent Acts with Another, has been replaced in its entirety by paragraph 45.

Lesser included offenses under Article 120 should be considered depending on the factual circumstances in each cases.

(f) The analysis to Article 128, Assault, is amended by inserting the following at the end of current analysis paragraph:

e. Maximum punishment. 200__ amendment. The maximum punishments for some aggravated assault offenses were established to recognize the increased severity of such offenses when children are the victims. These maximum punishments are consistent with the maximum punishments of the Article 134 offense of Child Endangerment, established in 200__.

(g) The Analysis accompanying Article 134, Assault indecent, is amended by inserting the following:

63. Article 134—Assault-indecent

200__ Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120(e) Aggravated Sexual Contact, (h) Abusive Sexual Contact, and (m) Wrongful Sexual Contact.

(h) The Analysis accompanying Article 134—Assault—with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking, is amended by inserting the following:

64. Article 134—Assault—with intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking

200__ Amendment. This paragraph has been amended for consistency with the changes to Article 118 under section 552 of the National Defense Start Printed Page 78155Authorization Act for Fiscal Year 2006, Pub. L. 109-163, 6 January 2006. See subsection (d) of Section 552.

(i) The analysis to Article 134 is amended by inserting the following:

68a. Article 134 (Child Endangerment)

200__ Amendment. This offense is new to the Manual for Courts Martial. Child neglect was recognized in U.S. v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It is based on military custom and regulation as well as a majority of state statutes and captures the essence of child neglect, endangerment, and abuse.

(j) The Analysis accompanying Article 134—Indecent acts with a child, is amended by inserting the following:

87. Article 134—Indecent acts with a child

200__ Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (g) Aggravated Sexual Contact with a Child, (i) Abusive Sexual Contact with a Child, and (j) Indecent Liberty with Child.

(k) The Analysis accompanying Article 134—Indecent Exposure is amended by inserting the following:

88. Article 134—Indecent Exposure

200__ Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (n) Indecent Exposure.

(l) The Analysis accompanying Article 134—Indecent Exposure is amended by inserting the following:

88. Article 134—Indecent Exposure

200__ Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (n) Indecent Exposure.

(j) The Analysis accompanying Article 134—Pandering and Prostitution is amended by inserting the following:

97. Article 134—Pandering and prostitution

200 Amendment. This paragraph has been amended. The act of compelling another person to engage in an act of prostitution with another person will no longer be punished under paragraph 97 and has been replaced by a new offense under paragraph 45. See Article 120 (l) Forcible Pandering.

Start Signature

Dated: December 20, 2006.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, DoD.

End Signature End Supplemental Information

[FR Doc. E6-22107 Filed 12-27-06; 8:45 am]

BILLING CODE 5001-06-P