[Federal Register: September 15, 2004 (Volume 69, Number 178)]
[Notices]
[Page 55600-55604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se04-35]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of proposed amendments to the Manual for Courts-Martial,
United States (2002 ed.) and notice of public meeting.
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SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States (2002 ed.) (MCM). The
proposed changes constitute the 2004 annual review required by the MCM
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint
Service Committee (JSC) on Military Justice,'' May 3,2003. The proposed
changes concern the rules of procedure and evidence and the punitive
articles
[[Page 55601]]
applicable in trials by courts-martial. These proposed changes have not
been coordinated within the Department of Defense under DoD Directive
5500.1, ``Preparation and Processing of Legislation, Executive Orders,
Proclamations, and Reports and Comments Thereon,'' May 21, 1964, and do
not constitute the official position of the Department of Defense, the
Military Departments, or any other Government agency.
This notice also sets forth the date, time and location for the
public meeting of the JSC to discuss the proposed changes.
This notice is provided in accordance with DoD Directive 5500.17,
``Role and Responsibilities of the Joint Service Committee (JSC) on
Military Justice,'' May 3, 2003. This notice is intended only to
improve the internal management of the Federal Government. It is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by any party against the United States, its
agencies, its officers, or any person.
In accordance with paragraph III.B.4 of the Internal Organization
and Operating Procedures of the JSC, the committee also invites members
of the public to suggest changes to the manual for Courts-Martial in
accordance with the described format.
DATES: Comments on the proposed changes must be received no later than
November 15, 2004 to be assured consideration by the JSC. A public
meeting will be held on October 15, 2004 at 11 a.m. in Room 808, 1501
Wilson Boulevard, Rosslyn, VA 22209-2403.
ADDRESSES: Comments on the proposed changes should be sent to
Lieutenant Commander James Carsten, Office of the Judge Advocate
General, 716 Sicard St. SE, Suite 1000, Washington,DC 20374-5047.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James Carsten,
Executive Secretary, Joint Service Committee on Military Justice,
Office of the Judge Advocate General, 716 Sicard St. SE., Suite 1000,
Washington, DC 20374-5047, (202) 685-7298, (202) 685-7687 fax.
SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as
follows:
Amend RCM 703(b)(1) by inserting the following three sentences
after the last sentence in RCM 703(b)(1):
With the consent of both the accused and Government, the military
judge may authorize any witness to testify via remote means. Over a
party's objection, the military judge may authorize any witness to
testify on interlocutory questions via remote means or similar
technology if the practical difficulties of producing the witness
outweigh the significance of the witness' personal appearance. Factors
to be considered include, but are not limited to the costs of producing
the witness, the timing of the request for production of the witness,
the potential delay in the interlocutory proceeding that may be caused
by the production of the witness, the willingness of the witness to
testify in person, and the likelihood of significant interference with
military operational deployment, mission accomplishment, or essential
training, and for child witnesses the traumatic effect of providing in-
court testimony.
Add a new paragraph to the end of the Discussion which follows
R.C.M. (b)(1) that reads:
The procedures for receiving testimony via remote means and the
definition thereof are contained in R.C.M. 914B.
Amend the Analysis accompanying R.C.M. 703(b) by inserting the
following paragraph:
``200--Amendment: Subsection (b)(1) was amended to allow, under
certain circumstances, the utilization of various types of remote
testimony in lieu of the personal appearance of the witness.''
Amend the discussion to R.C.M. 802 by amending the last sentence of
the discussion to read:
A conference may be conducted by remote means or similar technology
consistent with the definition in R.C.M. 914B.
Amend R.C.M. 804(c)(2) to read:
(2) Procedure. The accused's absence will be conditional upon his
being able to view the witness' testimony from a remote location.
Normally, transmission of the testimony will include a system which
will transmit the accused's image and voice into the courtroom from a
remote location as well as transmission of the child's testimony from
the courtroom to the accused's location. A one-way transmission may be
used if deemed necessary by the military judge. The accused will also
be provided private, contemporaneous communication with his counsel.
The procedures described herein shall be employed unless the accused
has made a knowing and affirmative waiver of these procedures.
Amend the Analysis accompanying R.C.M. 804(c) by inserting the
following paragraph:
``200--Amendment: The specific terminology of the manner in which
remote live testimony may be transmitted was deleted to allow for
technological advances in the methods used to transmit audio and visual
information.''
Amend RCM 914A by deleting the third sentence of paragraph (a),
which read ``However, such testimony should normally be taken via a
two-way closed circuit television system'' leaving the remaining
paragraph which reads:
(a) General procedures. A child shall be allowed to testify out of
the presence of the accused after the military judge has determined
that the requirements of Mil. R. Evid. 611 (d)(3) have been satisfied.
The procedure used to take such testimony will be determined by the
military judge based upon the exigencies of the situation. At a
minimum, the following procedures shall be observed:
Amend RCM 914A by re-lettering current paragraph ``(b)'' to
paragraph ``(c)'' and inserting new paragraph (b) which will read:
(b) Definition. As used in this rule, ``remote live testimony''
includes, but is not limited to, testimony by video-teleconference,
closed circuit television, or similar technology.
Add a discussion section that reads:
For purposes of this rule, unlike R.C.M. 914B, remote means or
similar technology does not include receiving testimony by telephone
where the parties cannot see and hear each other.
Amend the Analysis accompanying R.C.M. 914A by inserting the
following paragraph:
``200--Amendment: The rule was amend to allow for technological
advances in the methods used to transmit audio and visual
information.''
Add new Rule R.C.M. 914B, which will read:
Rule 914B. Use of Remote Testimony
(a) General procedures. The military judge shall determine the
procedure used to take testimony via remote means. At a minimum, all
parties shall be able to hear each other, those in attendance at the
remote site shall be identified, and the accused shall be permitted
private, contemporaneous communication with his counsel.
(b) Definition. As used in this rule, testimony via ``remote
means'' includes, but is not limited to, testimony by video-
teleconference, closed circuit television, telephone, or similar
technology.
Discussion
This rule applies for all witness testimony other than child
witness testimony specifically covered by M.R.E. 611(d) and R.C.M.
914A. When utilizing testimony via remote means, military justice
practitioners are encouraged to consult the procedure
[[Page 55602]]
used in In re San Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D.
424 (D.P.R. 1989) and to read United States v. Shabazz, 52 M.J. 585
(N.M.Ct. Crim. App. 1999); and United States v. Gigante, 166 F.3d 75
(2d Cir. 1999), cert denied, 528 U.S. 1114 (2000).
Add a new analysis section for R.C.M. 914B by inserting the
following title and paragraph:
Rule 914B. Use of Remote Testimony
200--Amendment: This rule describes the basic procedures that will
be used when testimony of any witnesses, other than child witnesses
pursuant to R.C.M. 914A, is received via remote means.''
Amend R.C.M. 1001(e)(2)(D) by deleting the ``or'' before ``former
testimony'' and inserting ``, or testimony by remote means'' after
``former testimony'' so the paragraph reads as follows:
(D) Other forms of evidence, such as oral depositions, written
interrogatories, former testimony, or testimony by remote means would
not be sufficient to meet the needs of the court-martial in the
determination of an appropriate sentence; and
Add new Discussion paragraph immediately following R.C.M. 1001
(e)(2)(E) which will read:
The procedures for receiving testimony via remote means and the
definition thereof are contained in R.C.M. 914B.
Amend the Analysis accompanying R.C.M. 1001(e) by inserting the
following paragraph:
``200--Amendment: Subsection (e)(2)(D) was amended to allow the
availability of various types of remote testimony to be a factor to
consider in whether a presentencing witness must be physically
produced.''
Amend Part IV, Punitive Articles, paragraph 4(c)(6) by inserting
the following new subparagraph (f) and redesignating the existing
subparagraph (f) as (g):
``(f) Article 119a-attempting to kill an unborn child''
Amend Appendix 23, Analysis of Punitive Articles
``200--Amendment: In 4(c)(6), subparagraph (f) was redesignated as
subparagraph (g) and a new subparagraph (f) was added to reflect the
offense of attempting to kill an unborn child as established by the
Unborn Victims of Violence Act of 2004, Pub. L. No. 108-212, Sec. 3,
---- Stat., ------ (2004) (art.119a).
Amend Part IV, Punitive Articles, by inserting the new paragraph
44a to read:
44a. Article 119a--Death or Injury of an Unborn Child
a. Text
``(a)(1) Any person subject to this chapter who engages in conduct
that violates any of the provisions of law listed in subsection (b) and
thereby causes the death of, or bodily injury (as defined in section
1365 of title 18) to, a child, who is in utero at the time the conduct
takes place, is guilty of a separate offense under this section and
shall, upon conviction, be punished by such punishment, other than
death, as a court-martial may direct, which shall be consistent with
the punishments prescribed by the President for that conduct had that
injury or death occurred to the unborn child's mother.
(2) An offense under this section does not require proof that--
(i) The person engaging in the conduct had knowledge or should have
had knowledge that the victim of the underlying offense was pregnant;
or
(ii) The accused intended to cause the death of, or bodily injury
to, the unborn child.
(3) If the person engaging in the conduct thereby intentionally
kills or attempts to kill the unborn child, that person shall, instead
of being punished under paragraph (1), be punished as provided under
sections 880, 918, and 919(a) of this title (articles 80, 118, and
119(a)) for intentionally killing or attempting to kill a human being.
(4) Notwithstanding any other provision of law, the death penalty
shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a) are sections 918,
919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title
(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
(c) Nothing in this section shall be construed to permit the
prosecution--
(1) Of any person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by
law;
(2) Of any person for any medical treatment of the pregnant woman
or her unborn child; or
(3) Of any woman with respect to her unborn child.
(d) As used in this section, the term `unborn child' means a child
in utero, and the term `child in utero' or `child, who is in utero'
means a member of the species homo sapiens, at any stage of
development, who is carried in the womb.''
b. Elements
(1) Injuring an Unborn Child
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property (known to be occupied by) (belonging to))] a
woman;
(b) That the woman was then pregnant; and
(c) Thereby cause bodily injury to the unborn child of that woman.
(2) Killing an Unborn Child
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of ] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property known to (be occupied by) (belong to))] a woman;
and
(b) That the woman was then pregnant; and
(c) Thereby caused the death of the unborn child of that woman.
(3) Attempting To Kill an Unborn Child
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property (known to be occupied by) belonging to))] a
woman; and
(b) That the woman was then pregnant; and
(c) Thereby attempted to kill the unborn child of that woman.
(4) Intentionally Killing an Unborn Child
(a) That the accursed was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property (known to be occupied by) (belonging to))] a
woman; and
(b) That the woman was then pregnant; and
(c) Thereby intentionally killed the unborn child of that woman.
[[Page 55603]]
c. Explanation
(1) Nature of offense. This article makes it a separate, punishable
crime to cause the death of or bodily injury to an unborn child while
engaged in arson (article 126, UCMJ) murder (article 118, UCMJ);
voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter
(article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery
(article 122, UCMJ); maiming (article 124, UCMJ); or assault (article
128, UCMJ) against a pregnant woman. For all underlying offenses,
except arson, this article requires that the victim of the underlying
offense be the pregnant mother. For purposes of arson, the pregnant
mother must have some nexus to the arson such that she sustained some
``bodily injury'' due to the arson. This article does not permit the
prosecution of any--
(i) Person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by
law;
(ii) Person for any medical treatment of the pregnant woman or her
unborn child; or
(iii) Woman with respect to her unborn child.
The offenses of ``injuring an unborn child'' and ``killing an
unborn child'' do not require proof that--
(i) The person engaging in the conduct (the accused) had knowledge
or should have had knowledge that the victim of the underlying offense
was pregnant; or
(ii) The accused intended to cause the death of, or bodily injury
to, the unborn child.
(2) Bodily injury. For the purpose of this offense, the term
``bodily injury'' is that which is provided by 18 U.S.C. Sec. 1365, to
wit: A cut, abrasion, bruise, burn, or disfigurement; physical pain;
illness; impairment of the function of a bodily member, organ, or
mental faculty; or any other injury to the body, no matter how
temporary.
(3) Unborn child. ``Unborn child'' means a child in utero or a
member of the species homo sapiens who is carried in the womb, at any
stage of development, from conception to birth.
d. Lesser Included Offenses
(1) Killing an Unborn, Child
(a) Article 119a-injuring an unborn child
(2) Intentionally Killing an Unborn Child
(a) Article 119a-killing an unborn child
(b) Article 119a-injuring an unborn child
(c) Article 119a--attempts (attempting to kill an unborn child)
e. Maximum Punishment
The maximum punishment for (1) Injuring an unborn child; (2)
Killing an unborn child; (3) Attempting to kill an unborn child; or (4)
Intentionally killing an unborn child is such punishment, other than
death, as a court-martial may direct, but shall be consistent with the
punishment had the injury, death, attempt to kill or intentional
killing occurred to the unborn child's mother.
f. Sample Specifications
(1) Injuring an Unborn Child
In that ------------ (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------ 20 ----, cause bodily injury to the unborn child of --
----------, a pregnant woman, by engaging in the [(murder) (voluntary
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming)
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by)
(a structure or property known to (be occupied by) (belong to))] that
woman.
(2) Killing an Unborn Child
In that ------------ (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------ 20 ----, cause the death of the unborn child of ------
------, a pregnant woman, by engaging in the [(murder) (voluntary
manslaughter)(involuntary manslaughter) (rape) (robbery) (maiming)
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by)
(a structure or property known to (be occupied by) (belong to))] that
woman.
(3) Attempting to Kill an Unborn Child
In that ------------ (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------ 20----, attempt to kill the unborn child of ----------
--, a pregnant woman, by engaging in the [(murder) (voluntary
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming)
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by)
(a structure or property known to (be occupied by) (belong to))] that
woman.
(4) Intentionally Kiling an Unborn Child
In that ------------ (personal jurisdication data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------ 20----, intentionally kill the unborn child of --------
----, a pregnant woman, by engaging in the [(murder) (voluntary
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming)
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by)
(a structure or property known to (be occupied by) (belong to))] that
woman.
Amend Appendix 12, Maximum Punishment Chart by inserting the
following before Article 120, rape:
119a Death or Injury of an Unborn Child
Injuring or killing an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the bodily
injury or death occurred to the unborn child's mother.
Attempting to kill an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the attempt been
made to kill the unborn child's mother.
Intentional killing of an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the killing
occurred to the unborn child's mother.
Amend Appendix 23, Analysis of Punitive Articles by adding the
following new analysis:
44a. Article 119a--(Death or Injury of an Unborn Child)
c. Explanation. This paragraph is new and is based on Public Law
108-212, 18 U.S.C. Sec. 1841 and 10 U.S.C. Sec. 919a (Unborn Victims
of Violence Act of 2004) enacted on 1 April 2004.
Amend paragraph 97, Article 134--(Pandering and prostitution) to
add the new offense of patronizing a prostitute. The Article as amended
will read:
a. Text--See Paragraph 60
b. Elements
(1) Prostitution
(a) That the accused had sexual intercourse with another person not
the accused's spouse;
(b) That the accused did so for the purpose of receiving money or
other compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
[[Page 55604]]
(2) Patronizing a Prostitute
(a) That the accused had sexual intercourse with another person not
the accused's spouse;
(b) That the accused compelled, induced, enticed, or procured such
person to engage in act of sexual intercourse in exchange for money or
other compensation; and
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
(3) Pandering by Compelling, Inducing, Enticing, or Procuring Act of
Prostitution
(a) That the accused compelled, induced, enticed, or procured a
certain person to engage in an act of sexual intercourse for hire and
reward with a person to be directed to said person by the accused;
(b) That this compelling, inducing, enticing, or procuring was
wrongful; and
(c) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
(4) Pandering by Arranging or Receiving Consideration for Arranging for
Sexual Intercourse or Sodomy
(a) That the accused arranged for, or received valuable
consideration for arranging for, a certain person to engage in sexual
intercourse or sodomy with another person;
(b) That the arranging (and receipt of consideration) was wrongful;
and
(c) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
c. Explanation
Prostitution may be committed by males or females. Sodomy for money
or compensation is not included in subparagraph b(1). Sodomy may be
charged under paragraph 51. Evidence that sodomy was for money or
compensation may be a matter in aggravation. See R.C.M. 1001(b)(4).
d. Lesser Included Offense. Article 80-Attempts
e. Maximum Punishment
(1) Prostitution and patronizing a prostitute. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 1
year.
(2) Pandering. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
f. Sample Specifications
(1) Prostitution
In that---- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or
about----20----, wrongfully engage in (an act) (acts) of sexual
intercourse with----, a person not his/her spouse, for the purpose of
receiving (money) (----).
(2) Patronizing a Prostitute
In that ----(personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or
about----20----, wrongfully (compel) (induce) (entice) (procure)----, a
person not his/her spouse, to engage in (an act) (acts) of sexual
intercourse with the accused in exchange for (money) (--------).
(3) Compelling, Inducing, Enticing, or Procuring Act of Prostitution
In that----(personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or
about----, 20----, wrongfully (compel) (induce) (entice) (procure) ----
to engage in (an act) (acts) of (sexual intercourse for hire and reward
with persons to be directed to him/her by the said ----.
(4) Arranging, or Receiving Consideration for Arranging for Sexual
Intercourse or Sodomy
In that---- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or
about---- 20 ----, wrongfully (arrange for) (receive valuable
consideration, to wit: ---- on account of arranging for-) ---- to
engage in (an act) (acts) of sexual intercourse) (sodomy) with ----.
Amend Appendix 12, Maximum Punishment Chart by substituting
``Prostitution and patronizing a prostitute'' for ``Prostitution.''
Amend appendix 23, Analysis of Punitive Articles by amending the
Analysis accompanying paragraph 97 by adding the following:
``200-- Amendment: b. Elements. Subparagraph (2) defines the
elements of the offense of patronizing a prostitute. Old subparagraphs
(2) and (3) are now (3) and (4) respectively.''
Dated: September 9, 2004
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-20723 Filed 9-14-04; 8:45 am]
BILLING CODE 5001-06-M