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Federal Register / Vol. 71, No.

249 / Thursday, December 28, 2006 / Notices 78137

• Propose ways to enhance the Total Burden Cost (capital/startup): Amendments to the Manual for Courts-
quality, utility, and clarity of the None. Martial and a Notice of Public Meeting
information to be collected; and Total Burden Cost (operating/ to receive comment on this proposal.
• Propose ways to minimize the maintenance): None. The public meeting was held on 18
burden of the collection of information Dated: December 19, 2006. September 2006. One individual
on those who are to respond, including Nicola Goren, provided oral comment at the public
through the use of appropriate Chief of Staff, Office of the CEO. meeting. The JSC received three sets of
automated, electronic, mechanical, or [FR Doc. E6–22263 Filed 12–27–06; 8:45 am]
written comments from one individual,
other technological collection and two documents containing written
BILLING CODE 6050–$$–P
techniques or other forms of information comments from an organization. One
technology, e.g., permitting electronic anonymous poster submitted a comment
submissions of responses. through the Federal Docket Management
DEPARTMENT OF DEFENSE System (FDMS) (DoD–2006–OS–0177).
Comments
Office of the Secretary Purpose
A 60-day public comment Notice was
published in the Federal Registeron [DoD–2006–OS–0177] The proposed changes concern the
September 8, 2006. This comment rules of procedure applicable in trials by
period ended November 20, 2006. No Manual for Courts-Martial; Proposed
courts-martial and offenses that can be
public comments were received from Amendments
charged under the UCMJ. More
this notice. AGENCY: Department of Defense, Joint specifically, the proposed changes:
Description: Currently, the Service Committee on Military Justice Allow a military judge to sua sponte
Corporation is soliciting comments (JSC). enter a finding of not guilty to an
concerning the proposed renewal of its ACTION: Notice of summary of public offense at any time prior to
President’s Volunteer Service Award comment received regarding proposed authentication of the record of trial, if
(PVSA) application, Parts A, B, C, D, amendments to the Manual for Courts- prior to entering such finding the
and E. These applications must be Martial, United States (2005 ed.). military judge holds an Article 39(a)
completed by any organization that is session giving the parties an
interested in presenting the President’s SUMMARY: The JSC is forwarding final opportunity to be heard on the matter;
Volunteer Service Award. The proposed amendments to the Manual for require any sentence that must be
President’s Volunteer Service Award Courts-Martial, United States (2005 ed.) approved by the President of the United
was established in 2003 as a recognition (MCM) to the Department of Defense. States to be forwarded from the Service
program to honor Americans who have The proposed changes, resulting from Secretary concerned through the
answered the President’s call to service the JSC’s 2005 and 2006 annual reviews Secretary of Defense; provide a
and have made a sustained commitment of the MCM, concern the rules of definition of ‘‘clergyman’s assistant’’ as
to giving back to their communities and procedure applicable in trials by courts- used in the Military Rule of Evidence
country through volunteer service. The martial and offenses that may be concerning communications to clergy;
President’s Volunteer Service Award charged under the Uniform Code of provide definitions of the terms ‘‘child
(PVSA) is one initiative that grew out of Military Justice (UCMJ). The proposed of either’’ and ‘‘temporary physical
the USA Freedom Corps office at the changes have not been coordinated custody’’ as used in the Military Rule of
White House, and the President’s within the Department of Defense under Evidence concerning the husband-wife
Council on Service and Civic DoD Directive 5500.1, ‘‘Preparation and privilege; amend Article 120 to
Participation. In the past three years of Processing of Legislation, Executive incorporate some sex offenses currently
the program, more than 500,000 Orders, Proclamations, and Reports and charged under Article 134 of the UCMJ,
Americans have received this honor. Comments Thereon’’ May 21, 1964, and change the elements of rape and add
The PVSA application is completed by do not constitute the official position of other sexual assault offenses, include all
any organization interested in honoring the Department of Defense, the Military sex offenses against children, change the
their volunteers with the President’s Departments, or any other government offense of carnal knowledge to
Volunteer Service Award. The agency. aggravated sexual assault of a child, and
application may be completed ADDRESSES: Comments and materials change all Rules for Courts-Martial and
electronically using an on-line form at received from the public are available Military Evidence to be consistent with
www.presidentialserviceawards.gov or for inspection or copying at the Office the new Article 120 offense; and adds a
by printing off and submitting the form of The Judge Advocate General of the new offense of child endangerment
via mail. Army, Criminal Law Division, 1777 N. under Article 134;
Type of Review: Renewal. Kent Street, 10th Floor, Rosslyn,
Agency: Corporation for National and Discussion of Comments and Changes
Virginia 22209–2194 between 8 a.m.
Community Service. and 4 p.m., Monday through Friday, In response to request for public
Title: President’s Volunteer Service except Federal Holidays. comment the JSC received oral
Award Applications. FOR FURTHER INFORMATION CONTACT: comments from one individual and
OMB Number: 3045–0086. Lieutenant Colonel Pete Yob, Executive written comments from this same
Agency Number: None. Secretary, Joint Service Committee on individual, one organization, and one
Affected Public: Not-for-profit, and Military Justice, 1777 N. Kent Street, anonymous person posting to FDMS.
private sector organizations. Rosslyn, Virginia 22209–2194, (703) The JSC considered the public
Total Respondents: 40,000. 588–6744, (703) 588–0144 fax. comments and is satisfied that the
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Frequency: On occasion. SUPPLEMENTARY INFORMATION: proposed amendments are appropriate


Average Time Per Response: 15 to implement without modification. The
minutes. Background JSC will forward the public comments
Estimated Total Burden Hours: 10,000 On August 10, 2006 (71 FR 45780), and proposed amendments to the
hours. the JSC published a notice of Proposed Department of Defense.

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78138 Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices

The oral and written comments In answer, while the new Article 120 offense include a ‘‘child in utero,’’ to
provided by members of the public arguably does not criminalize any acts permit an expectant mother to be
regarding the proposed changes follow: that could not have been charged prior charged under this offense if her
a. Several comments included to the change, there was a legislative behavior endangers her unborn child.
suggestions for changes to the MCM that decision to define more categories of In answer, Congress recently passed
were outside the scope of the proposed offenses to be charged according to more legislation that became law creating a
amendments. These proposals will be specific facts involved in sex crimes. UCMJ offense for causing the death or
considered for inclusion in the 2007 JSC d. Opposed making ‘‘indecent injury of an unborn child. Within this
annual review. They do not affect the exposure’’ an offense under Article 120 offense, it expressly exempts the mother
proposed amendment currently under without an element that would require of the child in utero from prosecution.
consideration. the conduct charged to be service Therefore, expanding the definition of
b. Raised a concern about the public discrediting or without an element that child in the new child endangerment
having a meaningful ability to comment would exclude situations in which offense for the purpose of criminalizing
because there was no summary, no situations where those witnessing the conduct by an expectant mother would
explanation as to the ‘‘extent, substance, exposure were consenting adults or the appear to be contrary to established
impact, or motivation,’’ for the proposed situation in which the exposure Congressional intent.
changes, and because changed portions occurred made it the norm.
were not indicated in highlighting or in In answer, indecent exposure has an Proposed Amendments After
bold, when the text of the proposal element requiring that the exposure be Consideration of Public Comment
stated they would be. Requested that the done in an indecent manner. One factor Received
proposed changes be republished in the in determining whether exposure is The proposed recommended
Federal Register with a summary and indecent is the time, manner and place amendments to the Manual for Courts-
explanation and requested release of in which a person exposes himself or Martial to be forwarded through the
minutes from the internal JSC meetings herself. Commanders will have the DoD for action by Executive Order of the
where the JSC discussed these issues. In discretion to consider all surrounding President of the United States are as
addition, objected to a 60 day time factors before deciding if conduct follows:
period from the date of publication for involving exposure is actionable and Section 1. Part II of the Manual for
public comment and recommended that whether action is appropriate. Courts-Martial, United States, is
this period be at least 75 days. e. Expressed a desire that state amended as follows:
In answer, the JSC has considered statutes, state court decisions, and (a) RCM 916(b) is amended to read:
these comments and has determined official guidance to prosecutors be (b) Burden of proof.
that the rulemaking process is adequate, consulted as these proposed (1) General rule. Except as listed
satisfies statutory requirements, and amendments are implemented. below in paragraphs (2), (3), and (4), the
provides sufficient opportunity for In answer, a variety of sources, prosecution shall have the burden of
public participation. The JSC has including Federal and state material, proving beyond a reasonable doubt that
concluded that the public had a were consulted as these provisions were the defense did not exist.
meaningful opportunity for comment. A drafted. These sources will continue to (2) Lack of mental responsibility. The
supplemental notice in the Federal be consulted during implementation. accused has the burden of proving the
Register explained that changed f. Recommended that forcible sodomy defense of lack of mental responsibility
portions were not highlighted in the be abolished as an offense chargeable by clear and convincing evidence.
initial publication, as intended, but the under Article 125 because it could now (3) Mistake of fact as to age. In the
proposed changes as published were in be charged under Article 120, and defense of mistake of fact as to age as
the format that would be forwarded to recommended that the consensual described in Part IV, para. 45a(o)(2) in
the Department of Defense. The sodomy no longer be an offense under a prosecution of a sexual offense with a
supplement noted that a copy of the the code or that it be moved to Article child under Article 120, the accused has
proposal with highlighted portions was 134 and require an element that it be the burden of proving mistake of fact as
available to anyone upon request to the service discrediting. to age by a preponderance of the
Executive Secretary of the JSC. An In answer, this is a matter subject to evidence. After the defense meets its
explanation as to the meaning and legislative action. Congress did not burden, the prosecution shall have the
intent of this proposed change is more include these changes as part of its burden of proving beyond a reasonable
appropriate for Congressional action, as legislative action in FY 2006. doubt that the defense did not exist.
the basis for this change is statutory. g. Requested that the affirmative (4) Mistake of fact as to consent. In the
Any detailed summary published could defense for marriage applicable to defense of mistake of fact as to consent
inadvertently fail to convey all the certain offenses be narrowed or in Article 120(a), rape, Article 120(c),
nuances of this complex change and eliminated. aggravated sexual assault, Article 120(e),
could lead to confusion about the actual In answer, the affirmative defenses aggravated sexual contact, and Article
wording and effect of the proposed were contained in the legislation passed 120(h), abusive sexual contact, the
change. The JSC does not release by Congress. The affirmative defense for accused has the burden of proving
minutes of its internal, deliberative marriage only applies to some of the mistake of fact as to consent by a
meetings. The typical period for public offenses under Article 120. Most of preponderance of the evidence. After
comment in the Federal Register is 60 these offenses involve conduct that the defense meets its burden, the
days and the DoD Directive regulating would otherwise be deemed as prosecution shall have the burden of
the JSC requires a 60 day publication consensual but for the fact that they proving beyond a reasonable doubt that
period. involved children under the age of 16. the defense did not exist.
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c. Observed that the new Article 120 A number of states allow marriage to (b) RCM 916(j)(2) is amended to read:
would not contain any offenses that children under the age of 16 under (2) Child Sexual Offenses. It is a
could charge any criminal conduct that certain circumstances. defense to a prosecution for Article 120
cannot be charged under existing h. Requested that the definition of (d), aggravated sexual assault of a child,
provisions of the UCMJ. ‘‘child’’ in the new Child Endangerment Article 120(f), aggravated sexual abuse

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Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices 78139

of a child, Article 120(i), abusive sexual of a child, aggravated sexual contact of one or more offenses charged or
contact with a child, or Article 120 (j), with a child, aggravated arson, sodomy, entering a finding of not guilty of a part
indecent liberty with a child that, at the burglary, kidnapping, mutiny, sedition, of a specification as long as a lesser
time of the offense, the child was at or privacy of an aircraft or vessel; or offense charged is alleged in the portion
least 12 years of age, and the accused while the accused was engaged in the of the specification, the military judge
reasonably believed the person was at commission or attempted commission of shall give each party an opportunity to
least 16 years of age. The accused must any offense involving the wrongful be heard on the matter.’’
prove this defense by a preponderance distribution, manufacture, or (j) R.C.M. 1204(c)(2) is amended by
of the evidence. introduction or possession, with intent inserting the following at the end of the
(c) RCM 916(j) is amended by to distribute, of a controlled substance; sentence:
inserting new paragraph RCM 916(j)(3) or, while the accused was engaged in (c) Action of decision by the Court of
after the Discussion section to RCM flight or attempted flight after the Appeals for the Armed Forces.
916(j)(2): commission or attempted commission of (2) Sentence requiring approval of the
(j)(3) Sexual offenses. It is an any such offense. President. If the Court of Appeals for the
affirmative defense to a prosecution for (f) RCM 1004(c)(8) is amended to Armed Forces has affirmed a sentence
Article 120(a), rape, Article 120(c), read: which must be approved by the
aggravated sexual assault, Article 120(e), (8) That only in the case of a violation President before it may be executed, the
aggravated sexual contact, and Article of Article 118(4), the accused was the Judge Advocate General shall transmit
120(h), abusive sexual contact that the actual perpetrator of the killing or was the record of trial, the decision of the
accused held, as a result of ignorance or a principal whose participation in the Court of Criminal Appeals, the decision
mistake, an incorrect belief that the burglary, sodomy, rape, rape of a child, of the Court of Appeals for the Armed
other person engaging in the sexual aggravated sexual assault, aggravated Forces, and the recommendation of the
conduct consented. The ignorance or sexual assault of a child, aggravated Judge Advocate General to the Secretary
mistake must have existed in the mind sexual contact, aggravated sexual abuse concerned, who, at his discretion, may
of the accused and must have been of a child, aggravated sexual contact provide a recommendation. All courts-
reasonable under all the circumstances. with a child, robbery, or aggravated martial transmitted by the Secretary
To be reasonable the ignorance or arson was major and who manifested a concerned, other than the Secretary of
mistake must have been based on reckless indifference for human life. the Department of Homeland Security
information, or lack of it, which would (g) RCM 1102(b)(2), is amended to with respect to the Coast Guard when it
indicate to a reasonable person that the read: is not operating as a service in the Navy,
other person consented. Additionally, (2) Article 39(a) sessions. An Article for the action of the President shall be
the ignorance or mistake cannot be 39(a) session under this rule may be transmitted to the Secretary of Defense,
based on the negligent failure to called, upon motion of either party or who, at his discretion, may provide a
discover the true facts. Negligence is the sua sponte by the military judge, for the recommendation.
absence of due care. Due care is what a purpose of inquiring into, and, when Sec. 2. Part III of the Manual for
reasonably careful person would do appropriate, resolving any matter which Courts-Martial, United States, is
under the same or similar arises after trial and which substantially amended as follows:
circumstances. The accused’s state of affects the legal sufficiency of any (a) MRE 412 is amended as follows:
intoxication, if any, at the time of the findings of guilty or the sentence. The Rule 412. Sex offense cases;
offense is not relevant to mistake of fact. military judge may also call an Article Relevance of alleged victim’s sexual
A mistaken belief that the other person 39(a) session, upon motion of either behavior or sexual predisposition
consented must be that which is a party or sua sponte, to reconsider any (a) Evidence generally inadmissible.
reasonably careful, ordinary, prudent, trial ruling that substantially affects the The following evidence is not
sober adult would have had under the legal sufficiency of any findings of admissible in any proceeding involving
circumstances at the time of the offense. guilty or the sentence. The military an alleged sexual offense except as
(d) RCM 920(e)(5)(D) is amended to judge may, sua sponte, at any time prior provided in subdivisions (b) and (c):
read: to authentication of the record of trial, (1) Evidence offered to prove that any
(D) The burden of proof to establish enter a finding of not guilty of one or alleged victim engaged in other sexual
the guilt of the accused is upon the more offenses charged, or may enter a behavior.
Government. [When the issue of lack of finding of not guilty of a part of a (2) Evidence offered to prove any
mental responsibility is raised, add: The specification as long as a lesser offense alleged victim’s sexual predisposition.
burden of proving the defense of lack of charged is alleged in the portion of the (b) Exceptions.
mental responsibility by clear and specification. Prior to entering such a (1) In a proceeding, the following
convincing evidence is upon the finding or findings, the military judge evidence is admissible, if otherwise
accused. When the issue of mistake of shall give each party an opportunity to admissible under these rules:
fact under RCM 916 (j)(2) or (j)(3) is be heard on the matter in a post-trial (A) Evidence of specific instances of
raised, add: The accused has the burden Article 39(a) session. sexual behavior by the alleged victim
of proving the defense of mistake of fact (h) R.C.M. 1102(d) is amended by offered to prove that a person other than
as to consent or age by a preponderance deleting the last phrase of the second the accused was the source of semen,
of the evidence.] sentence which reads: injury, or other physical evidence;
(e) RCM 1004(c)(7)(B) is amended to ‘‘,except that no proceeding in (B) Evidence of specific instances of
read as follows: revision may be held when any part of sexual behavior by the alleged victim
(B) The murder was committed: while the sentence has been ordered with respect to the person accused of
the accused was engaged in the executed.’’ the sexual misconduct offered by the
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commission or attempted commission of (i) R.C.M. 1102(e)(2) is amended by accused to prove consent or by the
any robbery, rape, rape of a child, inserting the following sentence after prosecution; and
aggravated sexual assault, aggravated the last sentence in RCM 1102(e)(2): (C) Evidence the exclusion of which
sexual assault of a child, aggravated ‘‘Prior to the military judge, sua would violate the constitutional rights
sexual contact, aggravated sexual abuse sponte, entering a finding of not guilty of the accused.

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78140 Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices

(c) Procedure to determine ‘‘(2) A ‘‘clergyman’s assistant’’ is a (c) Paragraph 44, Article 119,
admissibility. person employed by or assigned to Manslaughter, paragraph (b)(2)(d), is
(1) A party intending to offer evidence assist a clergyman in his capacity as a amended to read:
under subdivision (b) must— spiritual advisor.’’ (b)(2)(d) That this act or omission of
(A) File a written motion at least 5 (b) M.R.E. 504 is amended by the accused constituted culpable
days prior to entry of pleas specifically inserting new subsection (d) after M.R.E. negligence, or occurred while the
describing the evidence and stating the 504(c): accused was perpetrating or attempting
purpose for which it is offered unless ‘‘(d) Definitions. As used in this rule: to perpetrate an offense directly
the military judge, for good cause affecting the person other than burglary,
(1) The term ‘‘a child of either’’
shown, requires a different time for sodomy, rape, rape of a child,
includes not only a biological child,
filing or permits filing during trial; and aggravated sexual assault, aggravated
adopted child, or ward of one of the
(B) Serve the motion on the opposing sexual assault of a child, aggravated
spouses but also includes a child who
party and the military judge and notify sexual contact, aggravated sexual abuse
is under the permanent or temporary
the alleged victim or, when appropriate, of a child, aggravated sexual contact
physical custody of one of the spouses,
the alleged victim’s guardian or with a child, robbery, or aggravated
regardless of the existence of a legal
representative. arson.
parent-child relationship. For purposes
(2) Before admitting evidence under (d) Paragraph 45, Rape and Carnal
of this rule only, a child is: (i) an
this rule, the military judge must Knowledge, is amended to read:
individual under the age of eighteen; or
conduct a hearing, which shall be (ii) an individual with a mental Article 120. Rape, Sexual Assault, and
closed. At this hearing, the parties may handicap who functions under the age other Sexual Misconduct
call witnesses, including the alleged of eighteen.’’
victim, and offer relevant evidence. The a. Text. See Article 120, UCMJ.
(2) The term ‘‘temporary physical (a) Rape. Any person subject to this
alleged victim must be afforded a custody’’ includes instances where a chapter who causes another person of
reasonable opportunity to attend and be parent entrusts his or her child with any age to engage in a sexual act by—
heard. In a case before a court-martial another. There is no minimum amount (1) Using force against that other
composed of a military judge and of time necessary to establish temporary person;
members, the military judge shall physical custody nor must there be a (2) Causing grievous bodily harm to
conduct the hearing outside the written agreement. Rather, the focus is any person;
presence of the members pursuant to on the parent’s agreement with another (3) Threatening or placing that other
Article 39(a). The motion, related for assuming parental responsibility for person in fear that any person will be
papers, and the record of the hearing the child. For example, temporary subjected to death, grievous bodily
must be sealed and remain under seal physical custody may include instances harm, or kidnapping;
unless the court orders otherwise. where a parent entrusts another with the (4) Rendering another person
(3) If the military judge determines on care of their child for recurring care or unconscious; or
the basis of the hearing described in during absences due to temporary duty (5) Administering to another person
paragraph (2) of this subdivision that or deployments. by force or threat of force, or without the
the evidence that the accused seeks to knowledge or permission of that person,
Sec. 3. Part IV of the Manual for
offer is relevant for a purpose under a drug, intoxicant, or other similar
Courts-Martial, United States, is
subdivision (b) and that the probative substance and thereby substantially
amended as follows:
value of such evidence outweighs the impairs the ability of that other person
danger of unfair prejudice to the alleged (a) Paragraph 43, Article 118, Murder,
to appraise or control conduct;
victim’s privacy, such evidence shall be paragraph (a)(4) is amended to read:
(a)(4) is engaged in the perpetration or is guilty of rape and shall be punished
admissible under this rule to the extent as a court-martial may direct.
an order made by the military judge attempted perpetration of burglary,
(b) Rape of a child. Any person
specifies evidence that may be offered sodomy, rape, rape of a child,
subject to this chapter who—
and areas with respect to which the aggravated sexual assault, aggravated (1) Engages in a sexual act with a
alleged victim may be examined or sexual assault of a child, aggravated child who has not attained the age of 12
cross-examined. Such evidence is still sexual contact, aggravated sexual abuse years; or
subject to challenge under MRE 403. of a child, aggravated sexual contact (2) Engages in a sexual act under the
(d) For purposes of this rule, the term with a child, robbery or aggravated circumstances described in subsection
‘‘sexual offense’’ includes any sexual arson; is guilty of murder, and shall (a) with a child who has attained the age
misconduct punishable under the suffer such punishment as a court of 12 years;
Uniform Code of Military Justice, martial may direct, except that if found
is guilty of rape of a child and shall be
federal law or state law. ‘‘Sexual guilty under clause (1) or (4), he shall
punished as a court-martial may direct.
behavior’’ includes any sexual behavior suffer death or imprisonment for life as
(c) Aggravated sexual assault. Any
not encompassed by the alleged offense. a court martial may direct.
person subject to this chapter who—
The term ‘‘sexual predisposition’’ refers (b) Paragraph 43, Article 118, Murder, (1) Causes another person of any age
to an alleged victim’s mode of dress, paragraph (b)(4) is amended to read: to engage in a sexual act by—
speech, or lifestyle that does not directly (b)(4) That, at the time of the killing, (A) Threatening or placing that other
refer to sexual activities or thoughts but the accused was engaged in the person in fear (other than by threatening
that may have a sexual connotation for perpetration or attempted perpetration or placing that other person in fear that
the factfinder. of burglary, sodomy, rape, rape of a any person will be subjected to death,
(a) M.R.E. 503(b) is amended by child, aggravated sexual assault, grievous bodily harm, or kidnapping); or
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renumbering the existing subsection (2) aggravated sexual assault of a child, (B) Causing bodily harm; or
to subsection (3) and inserting the aggravated sexual contact, aggravated (2) Engages in a sexual act with
following new subsection (2) after sexual abuse of a child, aggravated another person of any age if that other
current M.R.E. 503(b)(1) to read as sexual contact with a child, robbery, or person is substantially incapacitated or
follows: aggravated arson. substantially incapable of—

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(A) Appraising the nature of the is guilty of indecent liberty with a child (1) In general. In a prosecution under
sexual act; and shall be punished as a court-martial paragraph (2) of subsection (c)
(B) Declining participation in the may direct. (aggravated sexual assault), or under
sexual act; or (k) Indecent act. Any person subject to subsection (d) (aggravated sexual assault
(C) Communicating unwillingness to this chapter who engages in indecent of a child), subsection (f) (aggravated
engage in the sexual act; conduct is guilty of an indecent act and sexual abuse of a child), subsection (i)
is guilty of aggravated sexual assault shall be punished as a court-martial may (abusive sexual contact with a child),
and shall be punished as a court-martial direct. subsection (j) (indecent liberty with a
may direct. (l) Forcible pandering. Any person child), subsection (m) (wrongful sexual
(d) Aggravated sexual assault of a subject to this chapter who compels contact), or subsection (n) (indecent
child. Any person subject to this chapter another person to engage in an act of exposure), it is an affirmative defense
who engages in a sexual act with a child prostitution with another person to be that the accused and the other person
who has attained the age of 12 years is directed to said person is guilty of when they engaged in the sexual act,
guilty of aggravated sexual assault of a forcible pandering and shall be sexual contact, or sexual conduct are
child and shall be punished as a court- punished as a court-martial may direct. married to each other.
(m) Wrongful sexual contact. Any (2) Definition. For purposes of this
martial may direct.
person subject to this chapter who, subsection, a marriage is a relationship,
(e) Aggravated sexual contact. Any
without legal justification or lawful recognized by the laws of a competent
person subject to this chapter who
authorization, engages in sexual contact State or foreign jurisdiction, between
engages in or causes sexual contact with
with another person without that other the accused and the other person as
or by another person, if to do so would
person’s permission is guilty of spouses. A marriage exists until it is
violate subsection (a) (rape) had the
wrongful sexual contact and shall be dissolved in accordance with the laws
sexual contact been a sexual act, is
punished as a court-martial may direct. of a competent State or foreign
guilty of aggravated sexual contact and
(n) Indecent exposure. Any person jurisdiction.
shall be punished as a court-martial may
subject to this chapter who intentionally (3) Exception. Paragraph (1) shall not
direct.
exposes, in an indecent manner, in any apply if the accused’s intent at the time
(f) Aggravated sexual abuse of a child.
place where the conduct involved may of the sexual conduct is to abuse,
Any person subject to this chapter who
reasonably be expected to be viewed by humiliate, or degrade any person.
engages in a lewd act with a child is (r) Consent and mistake of fact as to
guilty of aggravated sexual abuse of a people other than members of the
actor’s family or household, the consent. Lack of permission is an
child and shall be punished as a court- element of the offense in subsection (m)
martial may direct. genitalia, anus, buttocks, or female
areola or nipple is guilty of indecent (wrongful sexual contact). Consent and
(g) Aggravated sexual contact with a mistake of fact as to consent are not an
child. Any person subject to this chapter exposure and shall by punished as a
court-martial may direct. issue, or an affirmative defense, in a
who engages in or causes sexual contact prosecution under any other subsection,
with or by another person, if to do so (o) Age of child.
except they are an affirmative defense
would violate subsection (b) (rape of a (1) Twelve years. In a prosecution
for the sexual conduct in issue in a
child) had the sexual contact been a under subsection (b) (rape of a child),
prosecution under subsection (a) (rape),
sexual act, is guilty of aggravated sexual subsection (g) (aggravated sexual contact
subsection (c) (aggravated sexual
contact with a child and shall be with a child), or subsection (j) (indecent
assault), subsection (e) (aggravated
punished as a court-martial may direct. liberty with a child), it need not be
sexual contact), and subsection (h)
(h) Abusive sexual contact. Any proven that the accused knew that the
(abusive sexual contact).
person subject to this chapter who other person engaging in the sexual act,
(s) Other affirmative defenses not
engages in or causes sexual contact with contact, or liberty had not attained the
precluded. The enumeration in this
or by another person, if to do so would age of 12 years. It is not an affirmative
section of some affirmative defenses
violate subsection (c) (aggravated sexual defense that the accused reasonably
shall not be construed as excluding the
assault) had the sexual contact been a believed that the child had attained the
existence of others.
sexual act, is guilty of abusive sexual age of 12 years. (t) Definitions. In this section:
contact and shall be punished as a (2) Sixteen years. In a prosecution (1) Sexual act. The term ‘sexual act’
court-martial may direct. under subsection (d) (aggravated sexual means—
(i) Abusive sexual contact with a assault of a child), subsection (f) (A) Contact between the penis and the
child. Any person subject to this chapter (aggravated sexual abuse of a child), vulva, and for purposes of this
who engages in or causes sexual contact subsection (i) (abusive sexual contact subparagraph contact involving the
with or by another person, if to do so with a child), or subsection (j) (indecent penis occurs upon penetration, however
would violate subsection (d) (aggravated liberty with a child), it need not be slight; or
sexual assault of a child) had the sexual proven that the accused knew that the (B) The penetration, however slight,
contact been a sexual act, is guilty of other person engaging in the sexual act, of the genital opening of another by a
abusive sexual contact with a child and contact, or liberty had not attained the hand or finger or by any object, with an
shall be punished as a court-martial may age of 16 years. Unlike in paragraph (1), intent to abuse, humiliate, harass, or
direct. however, it is an affirmative defense degrade any person or to arouse or
(j) Indecent liberty with a child. Any that the accused reasonably believed gratify the sexual desire of any person.
person subject to this chapter who that the child had attained the age of 16 (2) Sexual contact. The term ‘sexual
engages in indecent liberty in the years. contact’ means the intentional touching,
physical presence of a child— (p) Proof of threat. In a prosecution either directly or through the clothing,
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(1) With the intent to arouse, appeal under this section, in proving that the of the genitalia, anus, groin, breast,
to, or gratify the sexual desire of any accused made a threat, it need not be inner thigh, or buttocks of another
person; or proven that the accused actually person, or intentionally causing another
(2) With the intent to abuse, intended to carry out the threat. person to touch, either directly or
humiliate, or degrade any person; (q) Marriage. through the clothing, the genitalia, anus,

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groin, breast, inner thigh, or buttocks of will result in the victim or another being contrary to that other person’s
any person, with an intent to abuse, subjected to a lesser degree of harm than reasonable expectation of privacy, of—
humiliate, or degrade any person or to death, grievous bodily harm, or (A) That other person’s genitalia,
arouse or gratify the sexual desire of any kidnapping. anus, or buttocks, or (if that other
person. (B) Inclusions. Such lesser degree of person is female) that person’s areola or
(3) Grievous bodily harm. The term harm includes— nipple; or
‘grievous bodily harm’ means serious (i) Physical injury to another person (B) That other person while that other
bodily injury. It includes fractured or or to another person’s property; or person is engaged in a sexual act,
dislocated bones, deep cuts, torn (ii) A threat— sodomy (under section 925 (article
members of the body, serious damage to (I) To accuse any person of a crime; 125)), or sexual contact.
internal organs, and other severe bodily (II) To expose a secret or publicize an (13) Act of prostitution. The term ‘act
injuries. It does not include minor asserted fact, whether true or false, of prostitution’ means a sexual act,
injuries such as a black eye or a bloody tending to subject some person to sexual contact, or lewd act for the
nose. It is the same level of injury as in hatred, contempt or ridicule; or purpose of receiving money or other
section 928 (article 128) of this chapter, (III) Through the use or abuse of compensation.
and a lesser degree of injury than in military position, rank, or authority, to (14) Consent. The term ‘consent’
section 2246(4) of title 18. affect or threaten to affect, either means words or overt acts indicating a
(4) Dangerous weapon or object. The positively or negatively, the military freely given agreement to the sexual
term ‘dangerous weapon or object’ career of some person. conduct at issue by a competent person.
means— (8) Bodily harm. The term ‘bodily An expression of lack of consent
(A) Any firearm, loaded or not, and harm’ means any offensive touching of through words or conduct means there
whether operable or not; another, however slight. is no consent. Lack of verbal or physical
(B) Any other weapon, device, (9) Child. The term ‘child’ means any resistance or submission resulting from
instrument, material, or substance, person who has not attained the age of the accused’s use of force, threat of
whether animate or inanimate, that in 16 years. force, or placing another person in fear
the manner it is used, or is intended to (10) Lewd act. The term ‘lewd act’ does not constitute consent. A current
be used, is known to be capable of means— or previous dating relationship by itself
producing death or grievous bodily or the manner of dress of the person
(A) The intentional touching, not
harm; or involved with the accused in the sexual
through the clothing, of the genitalia of
(C) Any object fashioned or utilized in conduct at issue shall not constitute
another person, with an intent to abuse,
such a manner as to lead the victim consent. A person cannot consent to
humiliate, or degrade any person, or to
under the circumstances to reasonably sexual activity if—
arouse or gratify the sexual desire of any
believe it to be capable of producing (A) Under 16 years of age; or
person; or (B) Substantially incapable of—
death or grievous bodily harm.
(5) Force. The term ‘force’ means (B) Intentionally causing another (i) Appraising the nature of the sexual
action to compel submission of another person to touch, not through the conduct at issue due to—
or to overcome or prevent another’s clothing, the genitalia of any person (I) Mental impairment or
resistance by— with an intent to abuse, humiliate or unconsciousness resulting from
(A) The use or display of a dangerous degrade any person, or to arouse or consumption of alcohol, drugs, a similar
weapon or object; gratify the sexual desire of any person. substance, or otherwise; or
(B) The suggestion of possession of a (11) Indecent liberty. The term (II) Mental disease or defect which
dangerous weapon or object that is used ‘indecent libert’ means indecent renders the person unable to understand
in a manner to cause another to believe conduct, but physical contact is not the nature of the sexual conduct at
it is a dangerous weapon or object; or required. It includes one who with the issue;
(C) Physical violence, strength, power, requisite intent exposes one’s genitalia, (ii) Physically declining participation
or restraint applied to another person, anus, buttocks, or female areola or in the sexual conduct at issue; or
sufficient that the other person could nipple to a child. An indecent liberty (iii) Physically communicating
not avoid or escape the sexual conduct. may consist of communication of unwillingness to engage in the sexual
(6) Threatening or placing that other indecent language as long as the conduct at issue.
person in fear. The term ‘threatening or communication is made in the physical (15) Mistake of fact as to consent. The
placing that other person in fear’ under presence of the child. If words designed term ‘mistake of fact as to consent’
paragraph (3) of subsection (a) (rape), or to excite sexual desire are spoken to a means the accused held, as a result of
under subsection (e) (aggravated sexual child, or a child is exposed to or ignorance or mistake, an incorrect belief
contact), means a communication or involved in sexual conduct, it is an that the other person engaging in the
action that is of sufficient consequence indecent liberty; the child’s consent is sexual conduct consented. The
to cause a reasonable fear that non- not relevant. ignorance or mistake must have existed
compliance will result in the victim or (12) Indecent conduct. The term in the mind of the accused and must
another person being subjected to death, ‘‘indecent conduct’’ means that form of have been reasonable under all the
grievous bodily harm, or kidnapping. immorality relating to sexual impurity circumstances. To be reasonable the
(7) Threatening or placing that other which is grossly vulgar, obscene, and ignorance or mistake must have been
person in fear. repugnant to common propriety, and based on information, or lack of it,
(A) In general. The term ‘threatening tends to excite sexual desire or deprave which would indicate to a reasonable
or placing that other person in fear’ morals with respect to sexual relations. person that the other person consented.
under paragraph (1)(A) of subsection (c) Indecent conduct includes observing, or Additionally, the ignorance or mistake
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(aggravated sexual assault), or under making a videotape, photograph, motion cannot be based on the negligent failure
subsection (h) (abusive sexual contact), picture, print, negative, slide, or other to discover the true facts. Negligence is
means a communication or action that mechanically, electronically, or the absence of due care. Due care is
is of sufficient consequence to cause a chemically reproduced visual material, what a reasonably careful person would
reasonable fear that non-compliance without another person’s consent, and do under the same or similar

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circumstances. The accused’s state of (ii) That at the time of the sexual act substance by force or threat of force or
intoxication, if any, at the time of the the child had not attained the age of without the knowledge or permission of
offense is not relevant to mistake of fact. twelve years. that child; and
A mistaken belief that the other person (b) Rape of a child who has attained (c) That, as a result, that child’s ability
consented must be that which a the age of 12 years but has not attained to appraise or control conduct was
reasonably careful, ordinary, prudent, the age of 16 years by using force. substantially impaired.
sober adult would have had under the (i) That the accused engaged in a (3) Aggravated sexual assault.
circumstances at the time of the offense. sexual act with a child; (a) Aggravated sexual assault by using
(16) Affirmative defense. The term (ii) That at the time of the sexual act threats or placing in fear.
‘affirmative defense’ means any special the child had attained the age of 12 (i) That the accused caused another
defense which, although not denying years but had not attained the age of 16 person, who is of any age, to engage in
that the accused committed the years; and a sexual act; and
objective acts constituting the offense (iii) That the accused did so by using (ii) That the accused did so by
charged, denies, wholly, or partially, force against that child. threatening or placing that other person
criminal responsibility for those acts. (c) Rape of a child who has attained in fear that any person would be
The accused has the burden of proving the age of 12 years but has not attained subjected to bodily harm or other harm
the age of 16 years by causing grievous (other than by threatening or placing
the affirmative defense by a
bodily harm. that other person in fear that any person
preponderance of evidence. After the
(i) That the accused engaged in a would be subjected to death, grievous
defense meets this burden, the
sexual act with a child; bodily harm, or kidnapping).
prosecution shall have the burden of (ii) That at the time of the sexual act
proving beyond a reasonable doubt that (b) Aggravated sexual assault by
the child had attained the age of 12 causing bodily harm.
the affirmative defense did not exist.’’. years but had not attained the age of 16 (i) That the accused caused another
b. Elements. years; and
(1) Rape. person, who is of any age, to engage in
(iii) That the accused did so by a sexual act; and
(a) Rape by using force. causing grievous bodily harm to any
(i) That the accused caused another (ii) That the accused did so by causing
person. bodily harm to another person.
person, who is of any age, to engage in (d) Rape of a child who has attained (c) Aggravated sexual assault upon a
a sexual act by using force against that the age of 12 years but has not attained person substantially incapacitated or
other person. the age of 16 years by using threats or
(b) Rape by causing grievous bodily substantially incapable of appraising the
placing in fear. act, declining participation, or
harm. (i) That the accused engaged in a
(i) That the accused caused another communicating unwillingness.
sexual act with a child; (i) That the accused engaged in a
person, who is of any age, to engage in (ii) That at the time of the sexual act sexual act with another person, who is
a sexual act by causing grievous bodily the child had attained the age of 12 of any age; and
harm to any person. years but had not attained the age of 16 (Note: add one of the following
(c) Rape by using threats or placing in years; and elements)
fear. (iii) That the accused did so by (ii) That the other person was
(i) That the accused caused another threatening or placing that child in fear substantially incapacitated;
person, who is of any age, to engage in that any person will be subjected to (iii) That the other person was
a sexual act by threatening or placing death, grievous bodily harm, or substantially incapable of appraising the
that other person in fear that any person kidnapping. nature of the sexual act;
will be subjected to death, grievous (e) Rape of a child who has attained (iv) That the other person was
bodily harm, or kidnapping. the age of 12 years but has not attained substantially incapable of declining
(d) Rape by rendering another the age of 16 years by rendering that participation in the sexual act; or
unconscious. child unconscious. (v) That the other person was
(i) That the accused caused another (i) That the accused engaged in a substantially incapable of
person, who is of any age, to engage in sexual act with a child; communicating unwillingness to engage
a sexual act by rendering that other (ii) That at the time of the sexual act in the sexual act.
person unconscious. the child had attained the age of 12 (4) Aggravated sexual assault of a
(e) Rape by administration of drug, years but had not attained the age of 16 child who has attained the age of 12
intoxicant, or other similar substance. years; and years but has not attained the age of 16
(i) That the accused caused another (iii) That the accused did so by years.
person, who is of any age, to engage in rendering that child unconscious. (a) That the accused engaged in a
a sexual act by administering to that (f) Rape of a child who has attained sexual act with a child; and
other person a drug, intoxicant, or other the age of 12 years but has not attained (b) That at the time of the sexual act
similar substance; the age of 16 years by administration of the child had attained the age of 12
(ii) That the accused administered the drug, intoxicant, or other similar years but had not attained the age of 16
drug, intoxicant or other similar substance. years.
substance by force or threat of force or (i) That the accused engaged in a (5) Aggravated sexual contact.
without the knowledge or permission of sexual act with a child; (a) Aggravated sexual contact by using
that other person; and (ii) That at the time of the sexual act force.
(iii) That, as a result, that other the child had attained the age of 12 (i) That the accused engaged in sexual
person’s ability to appraise or control years but had not attained the age of 16 contact with another person; or
conduct was substantially impaired. years; and (ii) That the accused caused sexual
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(2) Rape of a child. (iii) (a) That the accused did so by contact with or by another person; and
(a) Rape of a child who has not administering to that child a drug, (iii) That the accused did so by using
attained the age of 12 years. intoxicant, or other similar substance; force against that other person.
(i) That the accused engaged in a (b) That the accused administered the (b) Aggravated sexual contact by
sexual act with a child; and drug, intoxicant, or other similar causing grievous bodily harm.

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(i) That the accused engaged in sexual (i) That the accused engaged in sexual (ii) That the accused caused sexual
contact with another person; or contact with a child; or contact with or by a child or by another
(ii) That the accused caused sexual (ii) That the accused caused sexual person with a child; and
contact with or by another person; and contact with or by a child or by another (iii) That at the time of the sexual
(iii) That the accused did so by person with a child; and contact the child had attained the age of
causing grievous bodily harm to any (iii) That at the time of the sexual 12 years but had not attained the age of
person. contact the child had attained the age of 16 years; and
(c) Aggravated sexual contact by using 12 years but had not attained the age of (iv) (a) That the accused did so by
threats or placing in fear. 16 years; and administering to that child or that other
(i) That the accused engaged in sexual (iv) That the accused did so by using person a drug, intoxicant, or other
contact with another person; or force against that child. similar substance;
(ii) That the accused caused sexual (c) Aggravated sexual contact with a (b) That the accused administered the
contact with or by another person; and child who has attained the age of 12 drug, intoxicant, or other similar
(iii) That the accused did so by years but has not attained the age of 16 substance by force or threat of force or
threatening or placing that other person years by causing grievous bodily harm. without the knowledge or permission of
in fear that any person will be subjected (i) That the accused engaged in sexual that child or that other person; and
to death, grievous bodily harm, or contact with a child; or (c) That, as a result, that child’s or
kidnapping. (ii) That the accused caused sexual that other person’s ability to appraise or
(d) Aggravated sexual contact by contact with or by a child or by another control conduct was substantially
rendering another unconscious. person with a child; and impaired.
(i) That the accused engaged in sexual (iii) That at the time of the sexual (8) Abusive sexual contact.
contact with another person; or contact the child had attained the age of (a) Abusive sexual contact by using
(ii) That the accused caused sexual 12 years but had not attained the age of threats or placing in fear.
contact with or by another person; and 16 years; and (i) That the accused engaged in sexual
(iii) That the accused did so by (iv) That the accused did so by contact with another person; or
rendering that other person causing grievous bodily harm to any (ii) That the accused caused sexual
unconscious. person. contact with or by another person; and
(e) Aggravated sexual contact by (d) Aggravated sexual contact with a (iii) That the accused did so by
administration of drug, intoxicant, or child who has attained the age of 12 threatening or placing that other person
other similar substance. years but has not attained the age of 16 in fear that any person would be
(i) That the accused engaged in sexual years by using threats or placing in fear. subjected to bodily harm or other harm
contact with another person; or (i) That the accused engaged in sexual (other than by threatening or placing
(ii) That the accused caused sexual contact with a child; or that other person in fear that any person
contact with or by another person; and (ii) That the accused caused sexual would be subjected to death, grievous
(iii)(a) That the accused did so by contact with or by a child or by another bodily harm, or kidnapping).
administering to that other person a person with a child; and (b) Abusive sexual contact by causing
drug, intoxicant, or other similar (iii) That at the time of the sexual bodily harm.
substance; contact the child had attained the age of (i) That the accused engaged in sexual
(b) That the accused administered the 12 years but had not attained the age of contact with another person; or
(ii) That the accused caused sexual
drug, intoxicant, or other similar 16 years; and
(iv) That the accused did so by contact with or by another person; and
substance by force or threat of force or
(iii) That the accused did so by
without the knowledge or permission of threatening or placing that child or that
causing bodily harm to another person.
that other person; and other person in fear that any person will (c) Abusive sexual contact upon a
(c) That, as a result, that other be subjected to death, grievous bodily person substantially incapacitated or
person’s ability to appraise or control harm, or kidnapping. substantially incapable of appraising the
conduct was substantially impaired. (e) Aggravated sexual contact with a act, declining participation, or
(6) Aggravated sexual abuse of a child. child who has attained the age of 12 communicating unwillingness.
(a) That the accused engaged in a years but has not attained the age of 16 (i) That the accused engaged in sexual
lewd act; and years by rendering another or that child contact with another person; or
(b) That the act was committed with unconscious. (ii) That the accused caused sexual
a child who has not attained the age of (i) That the accused engaged in sexual contact with or by another person; and
16 years. contact with a child; or (Note: add one of the following
(7) Aggravated Sexual Contact with a (ii) That the accused caused sexual elements)
Child. contact with or by a child or by another (iii) That the other person was
(a) Aggravated sexual contact with a person with a child; and substantially incapacitated;
child who has not attained the age of 12 (iii) That at the time of the sexual (iv) That the other person was
years. contact the child had attained the age of substantially incapable of appraising the
(i) That the accused engaged in sexual 12 years but had not attained the age of nature of the sexual contact;
contact with a child; or 16 years; and (v) That the other person was
(ii) That the accused caused sexual (iv) That the accused did so by substantially incapable of declining
contact with or by a child or by another rendering that child or that other person participation in the sexual contact; or
person with a child; and unconscious. (vi) That the other person was
(iii) That at the time of the sexual (f) Aggravated sexual contact with a substantially incapable of
contact the child had not attained the child who has attained the age of 12 communicating unwillingness to engage
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age of twelve years. years but has not attained the age of 16 in the sexual contact.
(b) Aggravated sexual contact with a years by administration of drug, (9) Abusive sexual contact with a
child who has attained the age of 12 intoxicant, or other similar substance. child.
years but has not attained the age of 16 (i) That the accused engaged in sexual (a) That the accused engaged in sexual
years by using force. contact with a child; or contact with a child; or

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(b) That the accused caused sexual respect to sexual relations. Language is (b) Article 80—attempts
contact with or by a child or by another indecent if it tends reasonably to (9) Abusive Sexual Contact with a
person with a child; and corrupt morals or incite libidinous Child.
(c) That at the time of the sexual thoughts. The language must violate (a) Article 120—indecent act
contact the child had attained the age of community standards. (b) Article 128—assault; assault
12 years but had not attained the age of d. Lesser included offenses. The consummated by a battery; assault
16 years. following lesser included offenses are consummated by a battery upon a child
(10) Indecent liberty with a child. based on internal cross-references under 16
(a) That the accused committed a provided in the statutory text of Article (c) Article 80—attempts
certain act or communication; 120. See subsection (e) for or a further (10) Indecent Liberty with a Child.
(b) That the act or communication listing of possible LIOs. (a) Article 120—indecent act
was indecent; (1) Rape. (b) Article 80—attempts
(c) That the accused committed the (a) Article 120—aggravated sexual (11) Indecent Act. Article 80 attempts
act or communication in the physical contact (12) Forcible Pandering. Article 80
presence of a certain child; (b) Article 134—assault with intent to attempts
(d) That the child was under 16 years commit rape (13) Wrongful Sexual Contact. Article
of age; and (c) Article 128—aggravated assault, 80 attempts
(e) That the accused committed the assault, assault consummated by a (14) Indecent Exposure. Article 80
act or communication with the intent to: battery attempts
(i) arouse, appeal to, or gratify the (d) Article 80—attempts e. Additional Lesser Included
sexual desires of any person; or (2) Rape of a Child. Offenses. Depending on the factual
(ii) abuse, humiliate, or degrade any (a) Article 120—aggravated sexual circumstances in each case, to include
person. contact with a child; indecent act the type of act and level of force
(11) Indecent act. (b) Article 134—assault with intent to involved, the following offenses may be
(a) That the accused engaged in commit rape considered lesser included in addition
certain conduct; and (c) Article 128—aggravated assault; to those offenses listed in subsection d.
(b) That the conduct was indecent assault; assault consummated by a (See subsection (d) for a listing of the
conduct. battery; assault consummated by a offenses that are specifically cross-
(12) Forcible pandering. battery upon a child under 16 referenced within the statutory text of
(a) That the accused compelled a (d) Article 80—attempts Article 120.) The elements of the
certain person to engage in an act of (3) Aggravated Sexual Assault. proposed lesser included offense should
prostitution; and (a) Article 120—abusive sexual be compared with the elements of the
(b) That the accused directed another contact greater offense to determine if the
person to said person, who then (b) Article 128—aggravated assault, elements of the lesser offense are
engaged in an act of prostitution. assault, assault consummated by a derivative of the greater offense and vice
(13) Wrongful sexual contact. battery versa. See Appendix 23 for further
(a) That the accused had sexual (c) Article 80—attempts explanation of lesser included offenses.
(4) Aggravated Sexual Assault of a (1)(a) Rape by using force. Article
contact with another person;
(b) That the accused did so without Child. 120—indecent act; wrongful sexual
(a) Article 120—abusive sexual contact
that other person’s permission; and
contact with a child; indecent act (1)(b) Rape by causing grievous bodily
(c) That the accused had no legal
(b) Article 128—aggravated assault; harm. Article 120 aggravated sexual
justification or lawful authorization for
assault; assault consummated by a assault by causing bodily harm; abusive
that sexual contact.
battery; assault consummated by a sexual contact by causing bodily harm;
(14) Indecent exposure.
battery upon a child under 16 indecent act; wrongful sexual contact
(a) That the accused exposed his or
(c) Article 80—attempts
her genitalia, anus, buttocks, or female (1)(c) Rape by using threats or placing
(5) Aggravated Sexual Contact.
areola or nipple; (a) Article 128—aggravated assault; in fear. Article 120 aggravated sexual
(b) That the accused’s exposure was assault; assault consummated by a assault by using threats or placing in
in an indecent manner; battery fear; abusive sexual contact by using
(c) That the exposure occurred in a (b) Article 80—attempts threats or placing in fear; indecent act;
place where the conduct involved could (6) Aggravated Sexual Abuse of a wrongful sexual contact
reasonably be expected to be viewed by Child. (1)(d) Rape by rendering another
people other than the accused’s family (a) Article 120—indecent act unconscious. Article 120 aggravated
or household; and (b) Article 128—assault; assault sexual assault upon a person
(d) That the exposure was intentional. consummated by a battery; assault substantially incapacitated; abusive
c. Explanation. consummated by a battery upon a child sexual contact upon a person
(1) Definitions. The terms are defined under 16 substantially incapacitated; indecent
in ¶ 45a(t), supra. (c) Article 80—attempts act; wrongful sexual contact.
(2) Character of victim. See Military (7) Aggravated Sexual Contact with a (1)(e) Rape by administration of drug,
Rule of Evidence 412 concerning rules Child. intoxicant, or other similar substance.
of evidence relating to the character of (a) Article 120—indecent act Article 120 aggravated sexual assault
the victim of an alleged sexual offense. (b) Article 128—assault; assault upon a person substantially
(3) Indecent. In conduct cases, consummated by a battery; assault incapacitated; abusive sexual contact
‘‘Indecent’’ generally signifies that form consummated by a battery upon a child upon a person substantially
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of immorality relating to sexual under 16 incapacitated; indecent act; wrongful


impurity which is not only grossly (c) Article 80—attempts sexual contact.
vulgar, obscene, and repugnant to (8) Abusive Sexual Contact. (2)(a)–(f) Rape of a Child who has not
common propriety, but also tends to (a) Article 128—assault; assault attained 12 years; Rape of a child who
excite lust and deprave the morals with consummated by a battery has attained the age of 12 years but has

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not attained the age of 16 years. Article pay and allowances, and confinement In that ____ (personal jurisdiction
120—aggravated sexual assault of a for 20 years. data), did (at/on board—location)
child; aggravated sexual abuse of a (4) Abusive Sexual Contact with a (subject-matter jurisdiction data, if
child; abusive sexual contact with a Child and Indecent Liberty with a Child. required), on or about ____20, ____cause
child; indecent liberty with a child; Dishonorable discharge, forfeiture of all to engage in a sexual act, to wit: ____,
wrongful sexual contact pay and allowances, and confinement by [threatening] [placing (him)(her) in
(3) Aggravated Sexual Assault. Article for 15 years. fear] that (he)(she) (__) will be subjected
120—wrongful sexual contact; indecent (5) Abusive Sexual Contact. to (death)(grievous bodily harm)
act Dishonorable discharge, forfeiture of all (kidnapping) by __.
(4) Aggravated Sexual Assault of a pay and allowances, and confinement (d) Rape by rendering another
Child. Article 120—aggravated sexual for 7 years. unconscious.
abuse of a child; indecent liberty with (6) Indecent Act or Forcible In that ____(personal jurisdiction
a child; wrongful sexual contact Pandering. Dishonorable discharge, data), did (at/on board—location)
(5)(a) Aggravated Sexual Contact by forfeiture of all pay and allowances, and (subject-matter jurisdiction data, if
force. Article 120—indecent act; confinement for 5 years. required), on or about ____20, ____cause
wrongful sexual contact (7) Wrongful Sexual Contact or to engage in a sexual act, to wit: ____,
(5)(b) Aggravated Sexual Contact by Indecent Exposure. Dishonorable by rendering (him)(her) unconscious.
causing grievous bodily harm. Article discharge, forfeiture of all pay and (e) Rape by administration of drug,
120—abusive sexual contact by causing allowances, and confinement for 1 year. intoxicant, or other similar substance.
bodily harm; indecent act; wrongful g. Sample specifications. In that ____(personal jurisdiction
sexual contact (1) Rape. data), did (at/on board—location)
(a) Rape by using force. (subject-matter jurisdiction data, if
(5)(c) Aggravated Sexual Contact by
(i) Rape by use or display of
using threats or placing in fear. Article required), on or about ____20,
dangerous weapon or object.
120—abusive sexual contact by using In that ____ (personal jurisdiction ____cause_to engage in a sexual act, to
threats or placing in fear; indecent act; data), did (at/on board—location) wit: ____, by administering to (him)(her)
wrongful sexual contact (subject-matter jurisdiction data, if a drug, intoxicant, or other similar
(5)(d) Aggravated Sexual Contact by required), on or about ____ 20 ____, substance, (by force) (by threat of force)
rendering another unconscious. Article cause ____ to engage in a sexual act, to (without (his)(her) knowledge or
120 abusive sexual contact upon a wit: ____, by (using a dangerous weapon permission), and thereby substantially
person substantially incapacitated; or object, to wit: ____ against (him)(her)) impaired (his)(her) ability to [(appraise)
indecent act; wrongful sexual contact (displaying a dangerous weapon or (control)] [(his)(her)] conduct.
(5)(e) Aggravated Sexual Contact by object, to wit: ____ to (him)(her)). (2) Rape of a child.
administration of drug, intoxicant, or (ii) Rape by suggestion of possession (a) Rape of a child who has not
other similar substance. Article 120 of dangerous weapon or object. attained the age of 12 years.
abusive sexual contact upon a person In that ____ (personal jurisdiction In that ____(personal jurisdiction
substantially incapacitated; indecent data), did (at/on board—location) data), did (at/on board—location)
act; wrongful sexual contact (subject-matter jurisdiction data, if (subject-matter jurisdiction data, if
(6) Aggravated Sexual Abuse of a required), on or about ____ 20 ____, required), on or about ____20,
Child. Article 120—aggravated sexual cause ____ to engage in a sexual act, to ____engage in a sexual act, to wit: ____
contact with a child; aggravated sexual wit: ____, by the suggestion of with, a child who had not attained the
abuse of a child; indecent liberty with possession of a dangerous weapon or an age of 12 years.
a child; wrongful sexual contact object that was used in a manner to (b) Rape of a child who has attained
(7) Aggravated Sexual contact with a cause (him)(her) to believe it was a the age of 12 years but has not attained
Child. Article 120—abusive sexual dangerous weapon or object. the age of 16 years by using force.
contact with a child; indecent liberty (iii) Rape by using physical violence, (i) Rape of a child who has attained
with a child; wrongful sexual contact strength, power, or restraint to any the age of 12 years but has not attained
(8) Abusive Sexual Contact. Article person. the age of 16 years by use or display of
120—wrongful sexual contact; indecent In that ____ (personal jurisdiction dangerous weapon or object.
act data), did (at/on board—location) In that ____(personal jurisdiction
(9) Abusive Sexual Contact with a (subject-matter jurisdiction data, if data), did (at/on board—location)
Child. Article 120—indecent liberty required), on or about ____ 20 ____, (subject-matter jurisdiction data, if
with a child; wrongful sexual contact cause ____ to engage in a sexual act, to required), on or about ____20,
(10) Indecent Liberty with a Child. wit: ____, by using (physical violence) ____engage in a sexual act, to wit: ____,
Article 120—wrongful sexual contact (strength) (power) (restraint applied to with ____, a child who had attained the
f. Maximum punishment. ____), sufficient that (he)(she) could not age of 12 years, but had not attained the
(1) Rape and Rape of a Child. Death avoid or escape the sexual conduct. age of 16 years, by (using a dangerous
or such other punishment as a court (b) Rape by causing grievous bodily weapon or object, to wit: against
martial may direct. harm. (him)(her)) (displaying a dangerous
(2) Aggravated Sexual Assault. In that ____ (personal jurisdiction weapon or object, to wit: to (him)(her)).
Dishonorable discharge, forfeiture of all data), did (at/on board—location) (ii) Rape of a child who has attained
pay and allowances, and confinement (subject-matter jurisdiction data, if the age of 12 years but has not attained
for 30 years. required), on or about ____ 20, the age of 16 years by suggestion of
(3) Aggravated Sexual Assault of a ____cause to engage in a sexual act, to possession of dangerous weapon or
Child who has attained the age of 12 wit: ____, by causing grievous bodily object.
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years but has not attained the age of 16 harm upon (him)(her) (____), to wit: a In that ____(personal jurisdiction
years, Aggravated Sexual Abuse of a (broken leg)(deep cut)(fractured skull) data), did (at/on board—location)
Child, Aggravated Sexual Contact, and (____). (subject-matter jurisdiction data, if
Aggravated Sexual Contact with a Child. (c) Rape by using threats or placing in required), on or about ____20,
Dishonorable discharge, forfeiture of all fear. ____engage in a sexual act, to wit: ____,

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Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices 78147

with ____, a child who had attained the (f) Rape of a child who has attained years, but had not attained the age of 16
age of 12 years, but had not attained the the age of 12 years but has not attained years.
age of 16 years, by the suggestion of the age of 16 years by administration of (5) Aggravated sexual contact.
possession of a dangerous weapon or an drug, intoxicant, or other similar (a) Aggravated sexual contact by using
object that was used in a manner to substance. force.
cause (him)(her)__ to believe it was a In that ____ (personal jurisdiction (i) Aggravated sexual contact by use
dangerous weapon or object. data), did (at/on board—location) or display of dangerous weapon or
(iii) Rape of a child who has attained (subject-matter jurisdiction data, if object.
the age of 12 years but has not attained required), on or about ____20, ____ In that ____ (personal jurisdiction
the age of 16 years by using physical engage in a sexual act, to wit: ____, data), did (at/on board—location)
violence, strength, power, or restraint to with____, ____, a child who had attained (subject-matter jurisdiction data, if
any person. the age of 12 years, but had not attained required), on or about ____ 20 ____,
In that ____(personal jurisdiction the age of 16 years, by administering to [(engage in sexual contact, to wit: ____
data), did (at/on board—location) (him)(her) a drug, intoxicant, or other with ___) (cause ____ to engage in sexual
(subject-matter jurisdiction data, if similar substance (by force) (by threat of contact, to wit: ____, with ____) (cause
required), on or about ____20, force) (without (his)(her) knowledge or sexual contact with or by ____, to wit:
____engage in a sexual act, to wit: ____ permission), and thereby substantially ____)] by (using a dangerous weapon or
with ____, a child who had attained the impaired (his)(her) ability to object, to wit: ____ against (him)(her))
age of 12 years, but had not attained the [(appraise)(control)][(his)(her)] conduct. (displaying a dangerous weapon or
age of 16 years, by using (physical (3) Aggravated sexual assault. object, to wit: ____ to (him)(her)).
violence) (strength) (power) (restraint (a) Aggravated sexual assault by using (ii) Aggravated sexual contact by
applied to ) sufficient that (he)(she) threats or placing in fear. suggestion of possession of dangerous
could not avoid or escape the sexual In that ____ (personal jurisdiction weapon or object.
conduct. data), did (at/on board—location) In that ____ (personal jurisdiction
(c) Rape of a child who has attained (subject-matter jurisdiction data, if data), did (at/on board—location)
the age of 12 years but has not attained required), on or about ____20, ____ (subject-matter jurisdiction data, if
the age of 16 years by causing grievous cause ____ to engage in a sexual act, to required), on or about ____ 20 ____,
bodily harm. wit: ____, by [(engage in sexual contact, to wit: ____
In that ____ (personal jurisdiction [threatening][placing(him)(her) in fear with ____)(cause ____ to engage in
data), did (at/on board—location) of] [(physical injury to _)(injury to __’s sexual contact, to wit: ____, with ____)
(subject-matter jurisdiction data, if property)(accusation of (cause sexual contact with or by ____, to
required), on or about ____20, ____ crime)(exposition of secret)(abuse of wit: ____)] by the suggestion of
engage in a sexual act, to wit: ____, military position)(____)]. possession of a dangerous weapon or an
(b) Aggravated sexual assault by
with____, ____, a child who had attained object that was used in a manner to
causing bodily harm.
the age of 12 years, but had not attained In that ____ (personal jurisdiction cause (him)(her)(____) to believe it was
the age of 16 years, by causing grievous data), did (at/on board—location) a dangerous weapon or object.
bodily harm upon (him)(her)(____), to (subject-matter jurisdiction data, if (iii) Aggravated sexual contact by
wit: a (broken leg)(deep cut)(fractured required), on or about _____ cause ____ using physical violence, strength,
skull)(____). to engage in a sexual act, to wit: ____, power, or restraint to any person.
(d) Rape of a child who has attained by causing bodily harm upon In that ____ (personal jurisdiction
the age of 12 years but has not attained (him)(her)(____), to wit: . data), did (at/on board—location)
the age of 16 years by using threats or (c) Aggravated sexual assault upon a (subject-matter jurisdiction data, if
placing in fear. person substantially incapacitated or required), on or about ____ 20
In that ____ (personal jurisdiction substantially incapable of appraising the ____,[(engage in sexual contact, to wit:
data), did (at/on board—location) act, declining participation, or ____ with ____)(cause ____ to engage in
(subject-matter jurisdiction data, if communicating unwillingness. sexual contact, to wit: ____, with ____)
required), on or about ____20, ____ In that ____ (personal jurisdiction (cause sexual contact with or by ____, to
engage in a sexual act, to wit: ____, data), did (at/on board—location) wit: ____)] by using (physical violence)
with____, ____, a child who had attained (subject-matter jurisdiction data, if (strength) (power) (restraint applied to
the age of 12 years, but had not attained required), on or about ____20, ____ ____), sufficient that (he)(she)(____)
the age of 16 years, by [threatening] engage in a sexual act, to wit: with____, could not avoid or escape the sexual
[placing (him)(her) in fear] that (he)(she) ____,who was (substantially conduct.
(____) would be subjected to incapacitated) [substantially incapable (b) Aggravated sexual contact by
(death)(grievous bodily harm) of (appraising the nature of the sexual causing grievous bodily harm.
(kidnapping) by _. act)(declining participation in the In that ____ (personal jurisdiction
(e) Rape of a child who has attained sexual act) (communicating data), did (at/on board—location)
the age of 12 years but has not attained unwillingness to engage in the sexual (subject-matter jurisdiction data, if
the age of 16 years by rendering that act)]. required), on or about ____ 20 ____,
child unconscious. (4) Aggravated sexual assault of a [(engage in sexual contact, to wit: ____
In that ____ (personal jurisdiction child who has attained the age of 12 with ____)(cause ____ to engage in
data), did (at/on board—location) years but has not attained the age of 16 sexual contact, to wit: ____, with ____)
(subject-matter jurisdiction data, if years. (cause sexual contact with or by ____, to
required), on or about ____20, ____ In that ____ (personal jurisdiction wit: ____)] by causing grievous bodily
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engage in a sexual act, to wit: ____, data), did (at/on board—location) harm upon (him)(her)(____), to wit: ____
with____, ____, a child who had attained (subject-matter jurisdiction data, if a (broken leg)(deep cut)(fractured
the age of 12 years, but had not attained required), on or about ____20, ____ skull)(____).
the age of 16 years, by rendering engage in a sexual act, to wit: with____, (c) Aggravated sexual contact by using
(him)(her) unconscious. ____, who had attained the age of 12 threats or placing in fear.

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78148 Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices

In that ____ (personal jurisdiction attained the age of 12 years, to wit: in sexual contact, to wit: ____, with
data), did (at/on board—location) ____)]. ____, a child who had not attained the
(subject-matter jurisdiction data, if (b) Aggravated sexual contact with a age of 12 years, but had not attained the
required), on or about ____ 20 ____, child who has attained the age of 12 age of 16 years) (cause sexual contact
[(engage in sexual contact, to wit: ____ years but has not attained the age of 16 with or by ____, a child who had not
with ____)(cause ____ to engage in years by using force. attained the age of 12 years, but had not
sexual contact, to wit: ____, with ____) (i) Aggravated sexual contact with a attained the age of 16 years, to wit:
(cause sexual contact with or by ____, to child who has attained the age of 12 ____)] by using (physical violence)
wit: ____)] by [(threatening years but has not attained the age of 16 (strength) (power) (restraint applied to
(him)(her)(____)] years by use or display of dangerous ____) sufficient that (he)(she)(____)
[(placing(him)(her)(____) in fear] that weapon or object. could not avoid or escape the sexual
(he)(she)(____) will be subjected to In that ____ (personal jurisdiction conduct.
(death)(grievous bodily data), did (at/on board—location) (c) Aggravated sexual contact with a
harm)(kidnapping) by ____. (subject-matter jurisdiction data, if child who has attained the age of 12
(d) Aggravated sexual contact by required), on or about ____ 20 ____, years but has not attained the age of 16
rendering another unconscious. [(engage in sexual contact, to wit: ____ years by causing grievous bodily harm.
In that ____ (personal jurisdiction with ____, a child who had attained the In that ____ (personal jurisdiction
data), did (at/on board—location) age of 12 years, but had not attained the data), did (at/on board—location)
(subject-matter jurisdiction data, if age of 16 years)(cause ____ to engage in (subject-matter jurisdiction data, if
required), on or about ____20 ____, sexual contact, to wit: ____, with ____, required), on or about ____ 20 ____,
[(engage in sexual contact, to wit: a child who had attained the age of 12 [(engage in sexual contact, to wit: ____
with)(cause to engage in sexual contact, years, but had not attained the age of 16 with ____, a child who had not attained
to wit: ____, with ____) (cause ____ years) (cause sexual contact with or by the age of 12 years, but had not attained
sexual contact with or by ____, to wit: ____, a child who had attained the age the age of 16 years)(cause ____ to engage
____)] by rendering (him)(her)(____) of 12 years, but had not attained the age in sexual contact, to wit: ____, with
unconscious. of 16 years, to wit: ____)] by (using a ____, a child who had not attained the
(e) Aggravated sexual contact by dangerous weapon or object, to wit: ____ age of 12 years, but had not attained the
administration of drug, intoxicant, or against (him)(her)(____)) (displaying a age of 16 years) (cause sexual contact
other similar substance. dangerous weapon or object, to wit: ____ with or by ____, a child who had not
In that ____ (personal jurisdiction to (him)(her)(____)). attained the age of 12 years, but had not
data), did (at/on board—location) (ii) Aggravated sexual contact with a attained the age of 16 years, to wit:
(subject-matter jurisdiction data, if child who has attained the age of 12 ____)] by causing grievous bodily harm
required), on or about ____ 20 ____, years but has not attained the age of 16 upon (him)(her)(____), to wit: ____ a
[(engage in sexual contact, to wit: ____ years by suggestion of possession of (broken leg)(deep cut)(fractured
with ____)(cause ____ to engage in dangerous weapon or object. skull)(____).
sexual contact, to wit: ____, with ____) In that ____ (personal jurisdiction (d) Aggravated sexual contact with a
(cause sexual contact with or by ____, to data), did (at/on board—location) child who has attained the age of 12
wit: ____)] by administering to (subject-matter jurisdiction data, if years but has not attained the age of 16
(him)(her)(____) a drug, intoxicant, or required), on or about ____ 20 ____, years by using threats or placing in fear.
other similar substance, (by force) (by [(engage in sexual contact, to wit: ____ In that ____ (personal jurisdiction
threat of force) (without (his)(her)(____) with ____, a child who had attained the data), did (at/on board—location)
knowledge or permission), and thereby age of 12 years, but had not attained the (subject-matter jurisdiction data, if
substantially impaired (his)(her)(____) age of 16 years)(cause ____ to engage in required), on or about ____ 20 ____,
ability to [(appraise) (control)] sexual contact, to wit: ____, with ____, [(engage in sexual contact, to wit: ____
[(his)(her)] conduct. a child who had attained the age of 12 with ____, a child who had not attained
(6) Aggravated sexual abuse of a child. years, but had not attained the age of 16 the age of 12 years, but had not attained
In that ____ (personal jurisdiction years) (cause sexual contact with or by the age of 16 years)(cause ____ to engage
data), did (at/on board—location) ____, a child who had attained the age in sexual contact, to wit: ____, with
(subject-matter jurisdiction data, if of 12 years, but had not attained the age ____, a child who had not attained the
required), on or about ____ 20 ____, of 16 years, to wit: ____)] by the age of 12 years, but had not attained the
engage in a lewd act, to wit: ____ with suggestion of possession of a dangerous age of 16 years) (cause sexual contact
____, a child who had not attained the weapon or an object that was used in a with or by ____, a child who had not
age of 16 years. manner to cause (him)(her)(____) to attained the age of 12 years, but had not
(7) Aggravated sexual contact with a believe it was a dangerous weapon or attained the age of 16 years, to wit:
child. object. ____)] by [threatening] [placing
(a) Aggravated sexual contact with a (iii) Aggravated sexual contact with a (him)(her)(____) in fear] that
child who has not attained the age of 12 child who has attained the age of 12 (he)(she)(____) will be subjected to
years. years but has not attained the age of 16 (death) (grievous bodily
In that ____ (personal jurisdiction years by using physical violence, harm)(kidnapping) by ____.
data), did (at/on board—location) strength, power, or restraint to any (e) Aggravated sexual contact with a
(subject-matter jurisdiction data, if person. child who has attained the age of 12
required), on or about ____ 20 ____, In that ____ (personal jurisdiction years but has not attained the age of 16
[(engage in sexual contact, to wit: ____ data), did (at/on board—location) years by rendering that child or another
with ____, a child who had not attained (subject-matter jurisdiction data, if unconscious.
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the age of 12 years)(cause ____ to engage required), on or about ____ 20 ____, In that ____(personal jurisdiction
in sexual contact, to wit: ____, with [(engage in sexual contact, to wit: ____ data), did (at/on board—location)
____, a child who had not attained the with ____, a child who had not attained (subject-matter jurisdiction data, if
age of 12 years) (cause sexual contact the age of 12 years, but had not attained required), on or about ____ 20____,
with or by ____, a child who had not the age of 16 years)(cause ____ to engage [(engage in sexual contact, to wit: ____

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Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices 78149

with ____, a child who had not attained (c) Abusive sexual contact by or other compensation with ____ (a)
the age of 12 years, but had not attained engaging in a sexual act with a person person(s) to be directed to (him)(her) by
the age of 16 years)(cause ____ to engage substantially incapacitated or the said ____.
in sexual contact, to wit: ____, with substantially incapable of appraising the (13) Wrongful sexual contact.
____, a child who had not attained the act, declining participation, or In that ____ (personal jurisdiction
age of 12 years, but had not attained the substantially incapable of data), did (at/on board-location),
age of 16 years) (cause sexual contact communicating unwillingness. (subject-matter jurisdiction data, if
with or by ____, a child who had not In that ____ (personal jurisdiction required), on or about ____ 20 ____,
attained the age of 12 years, but had not data), did (at/on board—location) engage in sexual contact with ____, to
attained the age of 16 years, to wit: (subject-matter jurisdiction data, if wit: ____, and such sexual contact was
____)] by rendering (him)(her)(____) required), on or about ____ 20 ____, without legal justification or lawful
unconscious. [(engage in sexual contact, to wit: ____ authorization and without the
(f) Aggravated sexual contact with a with ____) (cause to engage in sexual permission of ____.
child who has attained the age of 12 contact, to wit: ____, with ____) (cause (14) Indecent exposure.
years but has not attained the age of 16 sexual contact with or by ____, to wit: In that ____ (personal jurisdiction
years by administration of drug, ____)] while (he)(she)(____) was data), did (at/on board-location),
intoxicant, or other similar substance. [substantially incapacitated] (subject-matter jurisdiction data, if
In that ____(personal jurisdiction [substantially incapable of (appraising required), on or about ____ 20 ____,
data), did (at/on board—location) the nature of the sexual contact) intentionally (expose in an indecent
(subject-matter jurisdiction data, if (declining participation in the sexual manner (his) (her) (____) (____) while (at
required), on or about ____ 20 ____, contact) (communicating unwillingness the barracks window) (in a public
[(engage in sexual contact, to wit: ____ to engage in the sexual contact)]. place)(____).
with ____, a child who had not attained (9) Abusive sexual contact with a (e) Paragraph 50, Art. 124, Maiming,
the age of 12 years but had not attained child. paragraph (e) is amended to read: e.
the age of 16 years)(cause ____ to engage In that ____ (personal jurisdiction Maximum Punishment. Dishonorable
in sexual contact, to wit: ____, with data), did (at/on board—location) discharge, forfeiture of all pay and
____, a child who had not attained the (subject-matter jurisdiction data, if allowances, and confinement for 20
age of 12 years but had not attained the required), on or about ____ 20 years.
age of 16 years) (cause sexual contact ____,[(engage in sexual contact, to wit: (f) Paragraph 51, Article 125, Sodomy,
with or by ____, a child who had not ____ with ____, a child who had attained paragraph (d) is amended by deleting
attained the age of 12 years but had not the age of 12 years but had not attained the following lesser included offenses
attained the age of 16 years, to wit: the age of 16 years)(cause ____ to engage under paragraph (d)(1)(b); (d)(2)(c); and
____)] by administering to in sexual contact, to wit: ____, with (d)(3)(a):
(him)(her)(____) a drug, intoxicant, or ____, a child who had attained the age (d)(1)(b) Article 134 indecent acts
other similar substance (by force) (by of 12 years but had not attained the age with a child under 16
threat of force) (without (his)(her)(____) of 16 years) (cause sexual contact with (d)(2)(c) Article 134 indecent assault
knowledge or permission), and thereby or by ____, a child who had attained the (d)(3)(a) Article 134 indecent acts
substantially impaired (his)(her)(____) age of 12 years but had not attained the with another
ability to [(appraise) (control)][(his) age of 16 years, to wit: ____)]. (g) Paragraph 51, Article 125,
(her)] conduct. (10) Indecent liberties with a child. paragraph (d) is amended by adding at
(8) Abusive sexual contact. In that ____ (personal jurisdiction the end of paragraph d:
(a) Abusive sexual contact by using data), did, (at/on board—location) [Note: Consider lesser included
threats or placing in fear. (subject-matter jurisdiction data, if offenses under Art. 120 depending on
In that ____ (personal jurisdiction required), on or about ____ 20 ____, the factual circumstances in each case.]
data), did (at/on board—location) (take indecent liberties) (engage in (h) Paragraph 54, Art. 128, Assault,
(subject-matter jurisdiction data, if indecent conduct) in the physical paragraph (b)(4)(a) is amended to read:
required), on or about ____ 20 ____, presence of ____, a (female) (male) (4) Aggravated Assault.
[(engage in sexual contact, to wit: ____ under 16 years of age, by (a) Assault with a dangerous weapon
with ____) (cause ____ to engage in (communicating the words: to wit: ____) or other means of force likely to produce
sexual contact, to wit: ____, with ____) (exposing one’s private parts, to wit: death or grievous bodily harm.
(cause sexual contact with or by ____, to ____) (____), with the intent to [(arouse) (i) That the accused attempted to do,
wit: ____)] by [(threatening) (placing (appeal to) (gratify) the (sexual desire) of offered to do, or did bodily harm to a
(him)(her)(____) in fear of)] [(physical the ____ (or ____)] certain person;
injury to ____)(injury to ____;’s [(abuse)(humiliate)(degrade) ____]. (ii) That the accused did so with a
property)(accusation of (11) Indecent act. certain weapon, means, or force;
crime)(exposition of secret)(abuse of In that ____ (personal jurisdiction (iii) That the attempt, offer, or bodily
military position)(____)]. data), did (at/on board—location) harm was done with unlawful force or
(b) Abusive sexual contact by causing (subject-matter jurisdiction data, if violence; and
bodily harm. required), on or about ____ 20 ____, (iv) That the weapon, means, or force
In that ____ (personal jurisdiction wrongfully commit indecent conduct, to was used in a manner likely to produce
data), did (at/on board—location) wit ____. death or grievous bodily harm.
(subject-matter jurisdiction data, if (12) Forcible pandering. (Note: Add any of the following as
required), on or about ____ 20 ____, In that ____ (personal jurisdiction applicable)
[(engage in sexual contact, to wit: ____ data), did (at/on board-location), (v) That the weapon was a loaded
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with ____) (cause ____ to engage in (subject-matter jurisdiction data, if firearm.


sexual contact, to wit: ____, with ____) required), on or about ____ 20 ____, (vi) That the person was a child under
(cause sexual contact with or by ____, to compel ____ to engage in [(a sexual the age of 16 years.
wit: ____)] by causing bodily harm upon act)(sexual contact) (lewd act), to wit: (i) Paragraph 54, Art. 128, Assault,
(him)(her)(____), to wit: (____). ____] for the purpose of receiving money paragraph (b)(4)(b) is amended to read:

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(4) Aggravated Assault. 128 simple assault; assault (r) Paragraph 64, Article 134 Assault
(b) Assault in which grievous bodily consummated by a battery; assault with w/ intent to commit murder, voluntary,
harm is intentionally inflicted. a dangerous weapon; (when committed manslaughter, rape, robberty, sodomy,
(i) That the accused assaulted a upon a child under the age of 16 years— arson, burglary, or housebreaking,
certain person; assault consummated by a battery upon paragraph (c)(4), 1st sentence, is
(ii) That grievous bodily harm was a child under the age of 16 years). amended to read: (c)(4) Assault with
thereby inflicted upon such person; (n) Paragraph 54, Art. 128, Assault, intent to commit rape. In assault with
(iii) That the grievous bodily harm paragraph (e)(8) is amended to read: intent to commit rape, the accused must
was done with unlawful force or e. Maximum punishment. have intended to complete the offense.
violence; and (8) Aggravated assault with a (s) Paragraph 64, Article 134 Assault
(iv) That the accused, at the time, had dangerous weapon or other means of w/ intent to commit murder, voluntary,
the specific intent to inflict grievous force to produce death or grievous manslaughter, rape, robbery, sodomy,
bodily harm. bodily harm. arson, burglary, or housebreaking, is
(Note: Add any of the following as After current (a), change (b) as follows amended by deleting the following
applicable) below and current (b) becomes (c): lesser included offense under paragraph
(v) That the injury was inflicted with (b) Aggravated assault with a (d)(3)(b):
a loaded firearm. dangerous weapon or other means of (d)(3)(b) Article 134 indecent assault
(vi) That the person was a child under force to produce death or grievous (t) New paragraph 68a, Article 134—
the age of 16 years. bodily harm when committed upon a (Child Endangerment) is inserted:
(j) Paragraph 54, Art. 128, Assault, child under the age of 16 years. 68a. Article 134—(Child
paragraph (c)(4)(a) is amended by Dishonorable discharge, total forfeitures, Endangerment)
adding new paragraph (c)(4)(a)(v) after and confinement for 5 years. a. Text. See paragraph 60.
(c)(4)(a)(iv): (o) Paragraph 54, Art. 128, Assault, b. Elements.
(4) Aggravated Assault. paragraph (e)(9) is amended to read: Child Endangerment
(a) Assault with a dangerous weapon e. Maximum punishment. (1) That the accused had a duty for
or other means or force likely to (9) Aggravated assault in which the care of a certain child;
produce death or grievous bodily harm. grievous bodily harm is intentionally (2) That the child was under the age
(v) When committed upon a child inflicted. of 16 years;
under 16 years of age. The maximum After current (a), change (b) as follows (3) That the accused endangered the
punishment is increased when below and current (b) becomes (c): child’s mental or physical health, safety,
(b) Aggravated assault in which
aggravated assault with a dangerous or welfare through design or culpable
grievous bodily harm is intentionally
weapon or means likely to produce negligence;
inflicted when committed upon a child
death or grievous bodily harm is and
under the age of 16 years. Dishonorable (4) That, under the circumstances, the
inflicted upon a child under 16 years of discharge, total forfeitures, and
age. Knowledge that the person conduct of the accused was to the
confinement for 8 years. prejudice of good order and discipline
assaulted was under the age of 16 years (p) Paragraph 54, Art. 128, Assault,
is not an element of the offense. in the armed forces or was of a nature
paragraph (f)(8) is amended to read:
(k) Paragraph 54, Art. 128, Assault, f. Sample specifications. to bring discredit upon the armed
paragraph (c)(4)(b) is amended by (8) Assault, Aggravated with a forces.
adding new paragraph (c)(4)(b)(iv): dangerous weapon, means or force. c. Explanation.
(4) Aggravated Assault. In that ____ (personal jurisdiction (1) In general. This offense is intended
(b) Assault in which grievous bodily data), did, (at/on board location)(subject to prohibit and therefore deter child
harm is intentionally inflicted. matter jurisdiction data, if required), on endangerment through design or
(iv) When committed upon a child or about ____ 20 ____, commit an assault culpable negligence.
under 16 years of age. The maximum upon ____ (a child under the age of 16 (2) Design. Design means on purpose,
punishment is increased when years) by (shooting) (pointing) (striking) intentionally, or according to plan and
aggravated assault with intentional (cutting) (____) (at him/her)(him/her) requires specific intent to endanger the
infliction of grievous bodily harm is (in)(on)(the ____) with (a dangerous child.
inflicted upon a child under 16 years of weapon)(a (means)(force) likely to (3) Culpable negligence. Culpable
age. Knowledge that the person produce death or grievous bodily harm), negligence is a degree of carelessness
assaulted was under the age of 16 years to wit: a (loaded firearm) (pickax) greater than simple negligence. It is a
is not an element of the offense. (bayonet) (club) (____). negligent act or omission accompanied
(l) Paragraph 54, Art. 128, Assault, (q) Paragraph 54, Art. 128, Assault, by a culpable disregard for the
paragraph (d)(6) is amended to read: d. paragraph (f)(8) is amended to read: foreseeable consequences to others of
Lesser included offenses. f. Sample specifications. that act or omission. In the context of
(6) Assault with a dangerous weapon (9) Assault, aggravated inflicting this offense, culpable negligence may
or other means or force likely to grievous bodily harm. include acts that, when viewed in the
produce death or grievous bodily harm. In that ____ (personal jurisdiction light of human experience, might
Article 128 simple assault; assault data), did, (at/on board location)(subject foreseeably result in harm to a child,
consummated by a battery; (when matter jurisdiction data, if required), on even though such harm would not
committed upon a child under the age or about ____ 20 ____, commit an assault necessarily be the natural and probable
of 16 years—assault consummated by a upon ____ (a child under the age of 16 consequences of such acts. In this
battery upon a child under the age of 16 years) by (shooting) (striking) (cutting) regard, the age and maturity of the
years). (____) (him/her)(on) the with a (loaded child, the conditions surrounding the
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(m) Paragraph 54, Art. 128, Assault, firearm)(club)(rock)(brick)( and did neglectful conduct, the proximity of
paragraph (d)(7) is amended to read: d. thereby intentionally inflict grievous assistance available, the nature of the
Lesser included offenses. bodily harm upon him/her, to wit: a environment in which the child may
(7) Assault in which grievous bodily (broken leg)(deep cut)(fractured have been left, the provisions made for
harm is intentionally inflicted. Article skull)(____). care of the child, and the location of the

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parent or adult responsible for the child harm. Dishonorable discharge, forfeiture (v) Paragraph 87, Indecent acts or
relative to the location of the child, of all pay and allowances, and liberties with a child is deleted.
among others, may be considered in confinement for 3 years. (w) Paragraph 88, Indecent Exposure
determining whether the conduct v. Endangerment by culpable is deleted.
constituted culpable negligence. negligence resulting in harm. Bad- (x) Paragraph 90, Indecent acts with
(4) Harm. Actual physical or mental conduct discharge, forfeiture of all pay another is deleted.
harm to the child is not required. The and allowances, and confinement for 2 (y) Paragraph 89, Indecent language,
offense requires that the accused’s years. paragraph (c), is amended to read:
actions reasonably could have caused vi. Other cases by culpable c. Explanation. ‘‘Indecent’’ language is
physical or mental harm or suffering. negligence. Bad-conduct discharge, that which is grossly offensive to
However, if the accused’s conduct does forfeiture of all pay and allowances, and modesty, decency, or propriety, or
cause actual physical or mental harm, confinement for 1 year. shocks the moral sense, because of its
the potential maximum punishment f. Sample specification. vulgar, filthy, or disgusting nature, or its
increases. See Paragraph 54(c)(4)(a)(iii) i. Resulting in grievous bodily harm. tendency to incite lustful thought.
for an explanation of ‘‘grievous bodily In that llll(personal jurisdiction Language is indecent if it tends
harm’’. data),(at/on board-location) (subject reasonably to corrupt morals or incite
(4) Endanger. ‘‘Endanger’’ means to matter jurisdiction data, if required) on libidinous thoughts. The language must
subject one to reasonable probability of or about llll, 20llll, had a violate community standards. See
harm. duty for the care of llll, a child paragraph 45 if the communication was
(5) Age of victim as a factor. While under the age of 16 years and did made in the physical presence of a
this offense may be committed against endanger the (mental health) (physical child.
any child under 16, the age of the victim health)(safety)(welfare) of said llll, (u) Paragraph 97. Article 134
is a factor in the culpable negligence by (leaving the said llll Pandering and Prostitution is amended
determination. Leaving a teenager alone unattended in his quarters for over by deleting ‘‘compel’’ throughout
for an evening may not be culpable (or llll hours/days with no adult subsection (b)(2) to read:
even simple) negligence; leaving an present in the home) (by failing to b. Elements
infant or toddler for the same period obtain medical care for the said (2) Pandering by inducing, enticing,
might constitute culpable negligence. llll’s diabetic condition) or procuring act of prostitution.
On the other hand, leaving a teenager (llll), and that such conduct (was (a) That the accused induced, enticed,
without supervision for an extended by design)(constituted culpable or procured a certain person to engage
period while the accused was on negligence) (which resulted in grievous in an act of sexual intercourse for hire
temporary duty outside commuting bodily harm, to wit:) (broken leg)(deep and reward with a person to be directed
distance might constitute culpable cut)(fractured skull)(llll)). to said person by the accused;
negligence. ii. Resulting in harm. (b) That this inducing, enticing, or
(6) Duty required. The duty of care is In that____(personal jurisdiction procuring was wrongful;
determined by the totality of the data),(at/on board—location) (subject (c) That, under the circumstances, the
circumstances and may be established matter jurisdiction data, if required) on conduct of the accused was to the
by statute, regulation, legal parent-child or about____, 20____, had a duty for the prejudice of good order and discipline
relationship, mutual agreement, or care of____, a child under the age of 16 in the armed forces or was of a nature
assumption of control or custody by years, and did endanger the (mental to bring discredit upon the armed
affirmative act. When there is no duty health) (physical health)(safety)(welfare) forces.
of care of a child, there is no offense of said____, by (leaving the said (v) Paragraph 97. Article 134
under this paragraph. Thus, there is no ____unattended in his quarters for over Pandering and Prostitution is amended
offense when a stranger makes no effort ____hours/days with no adult present in by deleting ‘‘compel’’ throughout the
to feed a starving child or an individual/ the home) (by failing to obtain medical subtitle and subsection (f)(2) to read:
neighbor not charged with the care of a care for the said____’s diabetic (2) Inducing, enticing, or procuring
child does not prevent the child from condition) (____), and that such conduct act of prostitution.
running and playing in the street. (was by design)(constituted culpable In that____ (personal jurisdiction
d. Lesser included offenses. negligence) (which resulted in (harm, to data), did (at/on board—location)
(1) Child Endangerment by Design. wit:) (a black eye)(bloody nose)(minor (subject-matter jurisdiction data, if
Article 134—Child Endangerment by cut)(____). required), on or about____ 20____,
culpable negligence. iii. Other cases. wrongfully (induce) (entice) (procure)
Article 80—Attempts. In that____(personal jurisdiction ____to engage in (an act)(acts) of (sexual
e. Maximum punishment. data),(at/on board—location) (subject intercourse for hire and reward) with
i. Endangerment by design resulting matter jurisdiction data, if required) on persons to be directed to (him/her) by
in grievous bodily harm. Dishonorable or about ____, 20____, was responsible the said____.
discharge, forfeiture of all pay and for the care of____, a child under the age Sec. 4. These amendments shall take
allowances, and confinement for 8 of 16 years, and did endanger the effect on [30 days after signature].
years. (mental health) (physical (a) Nothing in these amendments
ii. Endangerment by design resulting health)(safety)(welfare) of said____, by shall be construed to make punishable
in harm. Dishonorable discharge, (leaving the said ____unattended in his any act done or omitted prior to [30
forfeiture of all pay and allowances, and quarters for over ____hours/days with days after signature] that was not
confinement for 5 years. no adult present in the home) (by failing punishable when done or omitted.
iii. Other cases by design. to obtain medical care for the said____’s (b) Nothing in these amendments
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Dishonorable discharge, forfeiture of all diabetic condition) (____), and that such shall be construed to invalidate any
pay and allowances and confinement for conduct (was by design)(constituted nonjudicial punishment proceedings,
4 years. culpable negligence). restraint, investigation, referral of
iv. Endangerment by culpable (u) Paragraph 63, Article 134 Assault, charges, trial in which arraignment
negligence resulting in grievous bodily Indecent is deleted. occurred, or other action begun prior to

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[30 days after signature], and any such also R.C.M. 1003 concerning additional Abusive Sexual DD, BCD 7 yrs Total
nonjudicial punishment, restraint, limits on punishments and additional Contact.
investigation, referral of charges, trial, or punishments which may be adjudged) Indecent Act ....... DD, BCD 5 yrs Total
Forcible Pan- DD, BCD 5 yrs Total
other action may proceed in the same or the jurisdictional limit of the court-
dering.
manner and with the same effect as if martial (see R.C.M. 201(f) and R.C.M. Wrongful Sexual DD, BCD 1 yr .. Total
these amendments had not been 1301(d)). See also discussion to RCM Contact.
prescribed. 810(d). The military judge may upon Indecent Expo- DD, BCD 1 yr .. Total
request or when otherwise appropriate sure.
The White House, Changes to the
instruct on lesser punishments. See
Discussion accompanying the Manual Amend Article 124 to read:
R.C.M. 1003. If an additional
for Courts Martial, United States
punishment is authorized under R.C.M.
(a) Amend the Discussion 1003(d), the members must be informed Maiming .............. DD, BCD 20 Total
accompanying R.C.M. 810(d) to read as of the basis for the increased yrs
follows: punishment.
‘‘The trier of fact is not bound by the A carefully drafted sentence Amend Article 128 by inserting the
sentence previously adjudged or worksheet ordinarily should be used following:
approved at a rehearing. The members and should include reference to all Aggravated assault with a dangerous
should not be advised of the sentence authorized punishments in the case.’’ weapon or other means of force to
limitation under this rule. See R.C.M. (f) A Discussion accompanying R.C.M. produce death or grievous bodily harm
1005(e)(1). An appropriate sentence on 1107(f)(5)(A) is inserted to read as when committed upon a child under the
a retried or reheard offense should be follows: age of 16 years.
adjudged without regard to any credit to ‘‘In approving a sentence not in
which the accused may be entitled. See excess of or more severe than one DD, BCD 5 yrs Total
R.C.M. 103(2) and R.C.M. 103(3) as to previously approved (see R.C.M.
when a rehearing may be a capital 810(d)), a convening authority is Aggravated assault in which grievous
case.’’ prohibited from approving a punitive bodily harm is intentionally inflicted
(b) Insert the following new discharge more severe than one formerly when committed upon a child under the
Discussion section after RCM 916(j): approved, e.g. a convening authority is age of 16 years
prohibited from approving a
Discussion X DD, BCD 8 yrs Total
dishonorable discharge if a bad conduct
The statutory text of Article 120(r) discharge had formerly been approved.
specifically limits the affirmative Otherwise, in approving a sentence not Amend Article 134 by inserting:
defense for mistake of fact as to consent Child Endangerment:
in excess of or more severe than one
to Article 120(a) rape, Article 120(c) previously imposed, a convening
aggravated sexual assault, Article 120(e) Endangerment by DD, BCD 8 yrs Total
authority is not limited to approving the design resulting
aggravated sexual contact, and Article same or lesser type of ‘other in grievous
120(h) abusive sexual contact. For all punishments‘‘ formerly approved.’’ bodily harm.
other offenses under Article 120, Endangerment by DD, BCD 5 yrs Total
consent is not an issue and mistake of Changes to Appendix 12, Maximum
design resulting
fact as to consent is not an affirmative Punishment Chart in harm.
defense. Appendix 12 is amended as follows: Other cases by DD, BCD 4 yrs Total
(c) Amend the Discussion Amend Article 120 by deleting the design.
accompanying RCM 916(j)(2) in the 3rd following: Endangerment by DD, BCD 3 yrs Total
paragraph, 1st sentence, to read: Rape culpable neg-
Examples of offenses in which the Carnal Knowledge ligence result-
With child at least 12 ing in grievous
accused’s intent or knowledge is
With child under the age of 12 bodily harm.
immaterial include: rape of a child, Endangerment by BCD ........ 2 yrs Total
aggravated sexual contact with a child, Amend Article 120 by inserting the
culpable neg-
or indecent liberty with a child (if the following: ligence result-
victim is under 12 years of age, ing in harm.
knowledge or belief as to age is Rape and Rape DD, BCD Life ... Total Other cases by 1 yr .......... Total
immaterial). of a Child culpable neg-
Death, ligence BCD.
(d) Amend the Discussion
Aggravated Sex- DD, BCD 30 yrs Total
accompanying R.C.M. 917(c) by adding ual Assault.
the following sentence after the last Amend Article 134 by deleting the
Aggravated Sex- DD, BCD 20 yrs Total
sentence in the Discussion: following:
ual Assault of
‘‘See R.C.M. 1102(b)(2) for military a Child. Assault—Indecent
judge’s authority, upon motion or sua Aggravated Sex- DD, BCD 20 yrs Total Indecent Acts of Liberties with a Child
sponte, to enter finding of not guilty ual Abuse of a Indecent Exposure
after findings but prior to authentication Child. Indecent Acts with Another
of the record.’’ Aggravated Sex- DD, BCD 20 yrs Total
ual Contact. Changes to Appendix 21, Analysis of
(e) Amend the Discussion
Aggravated Sex- DD, BCD 20 yrs Total Rules for Courts Martial
accompanying R.C.M. 1005(e)(1) to read
ual Contact (a) Amend the Analysis
as follows:
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with a Child.
‘‘The maximum punishment that may accompanying R.C.M. 916(b) by
Abusive Sexual DD, BCD 15 yrs Total
be adjudged is the lowest of the total Contact with a inserting the following paragraph at the
permitted by the applicable paragraph(s) Child. end thereof:
in Part IV for each separate offense of Indecent Liberty DD, BCD 15 yrs Total 200__ Amendment. Changes to this
which the accused was convicted (see with a Child. paragraph, deleting ‘‘carnal knowledge’’,

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Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices 78153

are based on section 552 of the National (f) Amend the analysis accompanying renumbered subsection (3) and the new
Defense Authorization Act for Fiscal R.C.M. 1102(d) by inserting the subsection (2) was inserted to define the
Year 2006, Pub. L. 109–163, 6 January following paragraph at the end thereof: term ‘‘clergyman’s assistant.’’
2006, which supersedes the previous 200__ Amendment. For purposes of (c) Amend the Analysis
paragraph 45, Rape and Carnal this rule, the list of appropriate accompanying M.R.E. 504 by inserting
Knowledge, in its entirety and replaces reviewing authorities included in the the following paragraph at the end
paragraph 45 with Rape, sexual assault 1994 amendment includes any court thereof:
and other sexual misconduct. authorized to review cases on appeal ‘‘200_ Amendment: (d) Definition.
(b) Amend the Analysis under the UCMJ. Rule 504(d) modifies the rule and is
accompanying R.C.M. 916(j)(2) by Changes to Appendix 22, Analysis of intended to afford additional protection
inserting the following paragraph at the the Military Rules of Evidence to children. Previously, the term ‘‘a
end thereof: child of either,’’ referenced in Rule
(a) Amend the Analysis
200__ Amendment. Changes to this 504(c)(2)(A), did not include a ‘‘de
accompanying MRE 412, Relevance of
paragraph, deleting ‘‘carnal knowledge’’ facto’’ child or a child who is under the
alleged victim’s sexual behavior or
and consistent language, are based on physical custody of one of the spouses
sexual predisposition, by inserting the
section 552 of the National Defense but lacks a formal legal parent-child
following paragraph at the end thereof:
Authorization Act for Fiscal Year 2006, 200__ Amendment. This amendment relationship with at least one of the
Pub. L. 109–163, 6 January 2006, which is intended to aid practitioners in spouses. See U.S. v. McCollum, 58 M.J.
supersedes the previous paragraph 45, applying the balancing test of MRE 412. 323 (C.A.A.F. 2003). Prior to this
Rape and Carnal Knowledge, in its Specifically, the amendment clarifies: amendment, an accused could not
entirety and replaces paragraph 45 with (1) That under MRE 412, the evidence invoke the spousal privilege to prevent
Rape, sexual assault and other sexual must be relevant for one of the purposes disclosure of communications regarding
misconduct. highlighted in subdivision (b); (2) that crimes committed against a child with
(c) Insert a new Analysis section to in conducting the balancing test, the whom he or his spouse had a formal,
accompany new subparagraph R.C.M. inquiry is whether the probative value legal parent-child relationship;
916(j)(3) at the end of the analysis of the evidence outweighs the danger of however, the accused could invoke the
discussing subsection RCM 916(j): unfair prejudice to the victim’s privacy; privilege to prevent disclosure of
and (3) that even if the evidence is communications where there was not a
200__ Amendment. This paragraph is
admissible under MRE 412, it may still formal, legal parent-child relationship.
new and is based on the mistake of fact
be excluded under MRE 403. The This distinction between legal and ‘‘de
defense incorporated in section 552 of
proposed changes highlight current facto’’ children resulted in unwarranted
the National Defense Authorization Act
for Fiscal Year 2006, Pub. L. 109–163, practice. See U.S. v. Banker, 60 M.J. 216, discrimination among child victims and
6 January 2006, which supersedes the 223 (2004) (Citing ‘‘It would be illogical ran counter to the public policy of
if the judge were to evaluate evidence protecting children. Rule 504(d)
previous paragraph 45, Rape and Carnal
’offered by the accused’ for unfair recognizes the public policy of
Knowledge, in its entirety and replaces
prejudice to the accused. Rather, in the protecting children by addressing
paragraph 45 with Rape, sexual assault
context of this rape shield statute, the disparate treatment among child victims
and other sexual misconduct.
prejudice in question is, in part, that to entrusted to another. The ‘‘marital
(d) Amend the Analysis communications privilege * * * should
accompanying R.C.M. 920(e) by the privacy interests of the alleged
victim. Sanchez, 44 M.J. at 178 (‘‘[I]n not prevent ’a properly outraged spouse
inserting the following paragraph at the
end thereof: determining admissibility there must be with knowledge from testifying against
a weighing of the probative value of the a perpetrator’ of child abuse within the
200__ Amendment. Changes to this home regardless of whether the child is
evidence against the interest of
paragraph, deleting ‘‘carnal knowledge’’ part of that family.’’ U.S. v. McCollum,
shielding the victim’s privacy.’’).’’
and consistent language, are based on 58 M.J. 323, 342, fn.6 (C.A.A.F. 2003)
Moreover, the amendment clarifies
section 552 of the National Defense (citing U.S. v. Bahe, 128 F.3d 1440, 1446
that MRE 412 applies in all cases
Authorization Act for Fiscal Year 2006, (10th Cir. 1997)).
involving a sexual offense wherein the
Pub. L. 109–163, 6 January 2006, which
person against whom the evidence is Changes to Appendix 23, Analysis of
supersedes the previous paragraph 45,
offered can reasonably be characterized Punitive Articles
Rape and Carnal Knowledge, in its
as a ‘‘victim of the alleged sexual
entirety and replaces paragraph 45 with (a) The Analysis accompanying
offense.’’ Thus, the rule applies to:
Rape, sexual assault and other sexual Article 118, Murder, is amended by
‘‘consensual sexual offense’’,
misconduct. inserting the following:
‘‘nonconsensual sexual offenses’’;
(e) Amend the Analysis sexual offenses specifically proscribed 43. Article 118 Murder
accompanying R.C.M. 1004(c) by under the UCMJ, e.g., rape, aggravated
inserting the following paragraph at the sexual assault, etc.; those federal sexual a. Text.
end thereof : offenses DoD is able to prosecute under b. Elements.
200__ Amendment. Changes to this clause 3 of Article 134, U.C.M.J., e.g., 18 200__ Amendment. Paragraph (4) of
paragraph adding sexual offenses other U.S.C. § 2252A (possession of child the text and elements has been amended
than rape are based on subsection (d) of pornography); and state sexual offenses for consistency with the changes to
section 552 of the National Defense DoD is able to assimilate under the Article 118 under section 552 of the
Authorization Act for Fiscal Year 2006, Federal Assimilative Crimes Act (18 National Defense Authorization Act for
Pub. L. 109–163, 6 January 2006, which U.S.C. § 13). Fiscal Year 2006, Pub. L. 109–163, 6
sroberts on PROD1PC70 with NOTICES

supersedes the previous paragraph 45, (b) Amend the analysis accompanying January 2006. See subsection (d) of
Rape and Carnal Knowledge, in its M.R.E. 503(b) by inserting the following Section 552.
entirety and replaces paragraph 45 with paragraph at the end thereof: (b) The Analysis accompanying
Rape, sexual assault and other sexual ‘‘200__ Amendment: The previous Article 119, Manslaughter, is amended
misconduct. subsection (2) of MRE 503(b) was by inserting the following:

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44. Article 119 Manslaughter entirety by a new offense under inserting the following at the end of
b. Elements. paragraph 45. See subsection (n) current analysis paragraph:
200__ Amendment. Paragraph (4) of Indecent Exposure. e. Maximum punishment. 200__
(4) Paragraph 90, Article 134 Indecent amendment. The maximum punishment
the elements has been amended for
Acts with Another, has been replaced in for the offense of maiming was
consistency with the changes to Article
its entirety by a new offense under increased from 7 years confinement to
118 under section 552 of the National
paragraph 45. See subsection (k) 20 years confinement, consistent with
Defense Authorization Act for Fiscal
Indecent Act. the federal offense of maiming, 18
Year 2006, Pub. L. 109–163, 6 January (5) Paragraph 97, Article 134
2006. See subsection (d) of Section 552. U.S.C. § 114.
Pandering and Prostitution, has been (e) The Analysis accompanying
(c) The Analysis accompanying amended. The act of compelling another Article 125, Sodomy, is amended by
Article 120, Rape, Sexual Assault, and person to engage in an act of inserting the following:
other Sexual Misconduct, is amended prostitution with another person will no d. Lesser included offenses.
by inserting the following: longer be an offense under paragraph 97 200__ Amendment.
45. Article 120—Rape, Sexual Assault, and has been replaced by a new offense The former Paragraph 87, (1)(b),
and other Sexual Misconduct 200__ under paragraph 45. See subsection (l), Article 134 Indecent Acts or Liberties
Amendment. Changes to this paragraph Forcible Pandering. with a Child has been replaced in its
are contained in Div. A. Title V. Subtitle c. Explanation. Subparagraph (3), entirety by paragraph 45.
E, section 552(a)(1) of the National definition of ‘‘indecent’’, is taken from The former Paragraph 63, (2)(c),
Defense Authorization Act for Fiscal paragraphs 89.c and 90.c of the Manual Article 134 Assault—Indecent, has been
Year 2006, Pub. L. 109–163, 119 Stat. (2005 ed.) and is intended to replaced in its entirety by paragraph 45.
3257 (6 January 2006), which consolidate the definitions of The former Paragraph 90(3)(a), Article
supersedes the previous paragraph 45, ‘‘indecent,’’ as used in the former 134 Indecent Acts with Another, has
Rape and Carnal Knowledge, in its offenses under Article 134 of ‘‘Indecent been replaced in its entirety by
entirety and replaces paragraph 45 with acts or liberties with a child,’’ ‘‘Indecent paragraph 45.
Rape, sexual assault and other sexual exposure,’’ and ‘‘Indecent acts with Lesser included offenses under
misconduct. In accordance with section another,’’ formerly at paragraphs 87, 88, Article 120 should be considered
552(c) of that Act, Pub. L. 109 163, 119 and 90 of the 2005 Manual, and depending on the factual circumstances
Stat. 3263, the amendment to the Article ‘‘Indecent language,’’ at paragraph 89. in each cases.
applies only with respect to offenses The application of this single definition (f) The analysis to Article 128,
committed on or after 1 October 2007. of ‘‘indecent’’ to the offenses of Assault, is amended by inserting the
‘‘Indecent liberty with a child,’’ following at the end of current analysis
Nothing in these amendments ‘‘Indecent act,’’ and ‘‘Indecent paragraph:
invalidates any nonjudicial punishment exposure’’ under Article 120 is e. Maximum punishment. 200__
proceeding, restraint, investigation, consistent with the construction given amendment. The maximum
referral of charges, trial in which to the former Article 134 offenses in the punishments for some aggravated
arraignment occurred, or other action 2005 Manual that were consolidated assault offenses were established to
begun prior to 1 October 2007. Any such into Article 120. See e.g. United States recognize the increased severity of such
nonjudicial punishment proceeding, v. Negron, 60 M.J. 136 (C.A.A.F. 2004). offenses when children are the victims.
restraint, investigation, referral of e. Additional Lesser Included These maximum punishments are
charges, trial in which arraignment Offenses. The test to determine whether consistent with the maximum
occurred, or other action may proceed an offense is factually the same as punishments of the Article 134 offense
in the same manner and with the same another offense, and therefore lesser- of Child Endangerment, established in
effect as if these amendments had not included to that offense, is the 200__.
been prescribed. ‘‘elements’’ test. United States v. Foster, (g) The Analysis accompanying
This new Article 120 consolidates 40 M.J. 140, 142 (C.M.A.1994). Under Article 134, Assault indecent, is
several sexual misconduct offenses and this test, the court considers ‘‘whether amended by inserting the following:
is generally based on the Sexual Abuse each provision requires proof of a fact
Act of 1986, 18 U.S.C. Sections 2241– which the other does not.’’ Blockburger, 63. Article 134—Assault-indecent
2245. The following is a list of offenses 284 U.S. at 304, 52 S.Ct. 180. Rather 200__ Amendment. This paragraph
that have been replaced by this new than adopting a literal application of the has been replaced in its entirety by
paragraph 45: elements test, the Court stated that paragraph 45. See Article 120(e)
(1) Paragraph 63, 134 Assault— resolution of lesser-included claims Aggravated Sexual Contact, (h) Abusive
Indecent, has been replaced in its ‘‘can only be resolved by lining up Sexual Contact, and (m) Wrongful
entirety by three new offenses under elements realistically and determining Sexual Contact.
paragraph 45. See subsections (e) whether each element of the supposed (h) The Analysis accompanying
Aggravated Sexual Contact, (h) Abusive ’lesser’ offense is rationally derivative of Article 134—Assault—with intent to
Sexual Contact, and (m) Wrongful one or more elements of the other commit murder, voluntary
Sexual Contact. offense—and vice versa.’’ Foster, 40 M.J. manslaughter, rape, robbery, sodomy,
(2) Paragraph 87, 134 Indecent Acts or at 146. Whether an offense is a lesser- arson, burglary, or housebreaking, is
Liberties with a Child, has been included offense is a matter of law that amended by inserting the following:
replaced in its entirety by three new the Court will consider de novo. United 64. Article 134—Assault—with intent
offenses under paragraph 45. See States v. Palagar, 56 M.J. 294, 296 to commit murder, voluntary
subsections (g) Aggravated Sexual (C.A.A.F.2002). manslaughter, rape, robbery, sodomy,
sroberts on PROD1PC70 with NOTICES

Contact with a Child, (i) Abusive Sexual f. Maximum punishment. See 1995 arson, burglary, or housebreaking
Contact with a Child, and (j) Indecent Amendment regarding maximum 200__ Amendment. This paragraph
Liberty with a Child. punishment of death. has been amended for consistency with
(3) Paragraph 88, Article 134 Indecent (d) The analysis accompanying the changes to Article 118 under section
Exposure, has been replaced in its Article 124, Maiming, is amended by 552 of the National Defense

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Federal Register / Vol. 71, No. 249 / Thursday, December 28, 2006 / Notices 78155

Authorization Act for Fiscal Year 2006, DEPARTMENT OF DEFENSE coordinated aquatic resources
Pub. L. 109–163, 6 January 2006. See management framework.
subsection (d) of Section 552. Department of the Army; Corps of The Draft EIS was made available to
Engineers the public on November 21, 2005. The
(i) The analysis to Article 134 is
Corps accepted written comments until
amended by inserting the following: Notice of Availability for the Final January 16, 2006, and accepted oral
68a. Article 134 (Child Endangerment) Environmental Impact Statement for comments in a public hearing dated
the San Juan Creek Watershed/ December 6, 2006. The Corps received
200__ Amendment. This offense is Western San Mateo Creek Watershed ten written comments throughout the
new to the Manual for Courts Martial. Special Area Management Plan comment period and two oral comments
Child neglect was recognized in U.S. v. (SAMP), Orange County, CA at the public hearing.
Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It AGENCY: Department of Defense, The Final EIS is available to the
is based on military custom and Department of the Army, Corps of public at the reference desks at the
regulation as well as a majority of state Engineers, Los Angeles District following local libraries: Mission Viejo
statutes and captures the essence of Regulatory Branch. Library, 100 Civic Center, Mission Viejo,
child neglect, endangerment, and abuse. ACTION: Notice of Availability for a Final CA 92691; San Clemente Library, 242
(j) The Analysis accompanying Article EIS. Avenida Del Mar, San Clemente, CA
134—Indecent acts with a child, is 92672; Laguna Hills Library, 25555
amended by inserting the following: SUMMARY: The U.S. Army Corps of Alicia Parkway, Laguna Hills, CA
Engineers, Regulatory Branch has 92653; Laguna Niguel Library, 30341
87. Article 134—Indecent acts with a completed a Final EIS for the San Juan Crown Valley Parkway, Laguna Niguel,
child Creek Watershed/Western San Mateo CA 92656; San Juan Capistrano Library,
Creek Watershed Special Area 31495 El Camino Real, San Juan
200__ Amendment. This paragraph Management Plan (SAMP). The San Capistrano, CA 92675; Rancho Santa
has been replaced in its entirety by Juan Creek Watershed/Western San Margarita Library, 30902 La Promesa,
paragraph 45. See Article 120 (g) Mateo Creek Watershed SAMP Rancho Santa Margarita, CA 92688; and
Aggravated Sexual Contact with a Child, establishes three alternative permitting Dana Point Library, 33841 Niguel Road,
(i) Abusive Sexual Contact with a Child, procedures that balance aquatic Laguna Niguel, CA 92656. Information
and (j) Indecent Liberty with Child. resource protection and reasonable on obtaining electronic copies of the
(k) The Analysis accompanying economic development for the San Juan Final EIS is available by phoning or
Article 134—Indecent Exposure is Creek Watershed and western San mailing the contact person or by visiting
amended by inserting the following: Mateo Creek Watershed. http://www.spl.usace.army.mil/samp/
DATES: The Final EIS will be available sanjuancreeksamp.htm.
88. Article 134—Indecent Exposure to the public for 30 days from December
Mark Durham,
200__ Amendment. This paragraph 29, 2006 to January 29, 2007. After the
30 day availability period, a Record of Chief, South Coast Section, Regulatory
has been replaced in its entirety by Branch.
paragraph 45. See Article 120 (n) Decision will be issued.
[FR Doc. E6–22311 Filed 12–27–06; 8:45 am]
Indecent Exposure. FOR FURTHER INFORMATION CONTACT: Mr.
BILLING CODE 3710–KF–P
Jae Chung, Project Manager, Regulatory
(l) The Analysis accompanying Branch, U.S. Army Corps of Engineers,
Article 134—Indecent Exposure is P.O. Box 532711, Los Angeles,
amended by inserting the following: DEPARTMENT OF DEFENSE
California, 90053–2325, (213) 452–3292,
88. Article 134—Indecent Exposure yong.j.chung@usace.army.mil. Department of the Navy
200__ Amendment. This paragraph SUPPLEMENTARY INFORMATION: Under
has been replaced in its entirety by section 404 of the Clean Water Act, the Notice of Availability of Government-
paragraph 45. See Article 120 (n) Corps is authorized to issue permits for Owned Inventions; Available for
Indecent Exposure. activities that discharge dredged and/or Licensing
(j) The Analysis accompanying Article fill materials into waters of the U.S., AGENCY: Department of the Navy, DoD.
134—Pandering and Prostitution is including wetlands, for roads, ACTION: Notice.
amended by inserting the following: developments, utilities, and other
activities. For the San Juan Creek and SUMMARY: The inventions listed below
97. Article 134—Pandering and western San Mateo Creek Watersheds, are assigned to the U.S. Government as
prostitution the Corps is proposing a watershed- represented by the Secretary of the Navy
200 Amendment. This paragraph has based SAMP to balance aquatic resource and are available for licensing by the
been amended. The act of compelling protection and reasonable economic Department of the Navy (DON). Navy
another person to engage in an act of development. The SAMP is an Case No. 73,962: Light Weight Thermal
prostitution with another person will no improvement over the current Heat Transfer, U.S. Patent Application
longer be punished under paragraph 97 incremental case-by-case approach, No. 10/056,812 filed on January 24,
and has been replaced by a new offense which does a less effective job of taking 2002.//Navy Case No. 76,519: Method
under paragraph 45. See Article 120 (l) a watershed perspective of aquatic For Reducing Hazards, U.S. Patent
Forcible Pandering. resources and considering the needs of Application No. 11/220,189 filed on
future permit applicants. The SAMP September 01, 2005.//Navy Case No.
Dated: December 20, 2006.
involves characterizing aquatic resource 82,261: System For Implementing A
sroberts on PROD1PC70 with NOTICES

L.M. Bynum, conditions and processes through the GVP, U.S. Patent Application No. 10/
Alternate OSD Federal Register Liaison watershed, establishing alternative 255,413 filed on September 26, 2004.//
Officer, DoD. permitting procedures more appropriate Navy Case No. 83,036: Imagery Analysis
[FR Doc. E6–22107 Filed 12–27–06; 8:45 am] for the given aquatic resources in the Tool, U.S. Patent Application No. 11/
BILLING CODE 5001–06–P watershed, and developing a 417,283 filed on May 01, 2006.//Navy

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