[Federal Register: August 10, 2006 (Volume 71, Number 154)]
[Notices]               
[Page 45780-45797]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au06-27]                         

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DEPARTMENT OF DEFENSE

Office of the Secretary

[DOD-2006-OS-0177]

 
Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), DoD.

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States (2005 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 (2005 ed.) (MCM). The 
proposed changes constitute the 2005 annual review (delayed) 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 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 
October 1, 2006 to be assured consideration by the JSC. A public 
meeting will be held on September 18, 2006 at 11:00 a.m. in the 14th 
Floor Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194.

ADDRESSES: Comments on the proposed changes should be sent to 
Lieutenant Colonel L. Peter Yob, Office of The Judge Advocate General, 
Criminal Law Division, 1777 N. Kent St., Rosslyn, VA 22209-2194.

FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel L. Peter Yob, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, Office of The Judge Advocate 
General, Criminal Law Division, 1777 N. Kent St., Rosslyn, VA 22209-
2194, (703) 588-6744, e-mail Louis.Yob@hqda.army.mil.

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows (material in bold and/or underlined is new):
    Part II of the Manual for Courts-Martial, United States, is amended 
as follows:
    (a) RCM 916(b) is amended to read:
    (b) Burden of proof.
    (1) General rule. Except as listed below in paragraphs (2), (3), 
and (4), the prosecution shall have the burden of proving beyond a 
reasonable doubt that the defense did not exist.
    (2) Lack of mental responsibility. The accused has the burden of 
proving the defense of lack of mental responsibility by clear and 
convincing evidence.
    (3) Mistake of fact as to age. In the defense of mistake of fact as 
to age as described in Part IV, para. 45a(o)(2) in a prosecution of a 
sexual offense with a child under Article 120, the accused has the 
burden of proving mistake of fact as to age by a preponderance of the 
evidence. After the defense meets its burden, the prosecution shall 
have the burden of proving beyond a reasonable doubt that the defense 
did not exist.
    (4) Mistake of fact as to consent. In the defense of mistake of 
fact as to consent in Article 120(a), rape, Article 120(c), aggravated 
sexual assault, Article 120(e), aggravated sexual contact, and Article 
120(h), abusive sexual contact, the accused has the burden of proving 
mistake of fact as to consent by a preponderance of the evidence. After 
the defense meets its burden, the prosecution shall have the

[[Page 45781]]

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

[[Page 45782]]

with respect to the person accused of the sexual misconduct offered by 
the accused to prove consent or by the prosecution; and
    (C) Evidence the exclusion of which would violate the 
constitutional rights of the accused.
    (c) Procedure to determine admissibility.
    (1) A party intending to offer evidence under subdivision (b) 
must--
    (A) File a written motion at least 5 days prior to entry of pleas 
specifically describing the evidence and stating the purpose for which 
it is offered unless the military judge, for good cause shown, requires 
a different time for filing or permits filing during trial; and
    (B) Serve the motion on the opposing party and the military judge 
and notify the alleged victim or, when appropriate, the alleged 
victim's guardian or representative.
    (2) Before admitting evidence under this rule, the military judge 
must conduct a hearing, which shall be closed. At this hearing, the 
parties may call witnesses, including the alleged victim, and offer 
relevant evidence. The alleged victim must be afforded a reasonable 
opportunity to attend and be heard. In a case before a court-martial 
composed of a military judge and members, the military judge shall 
conduct the hearing outside the presence of the members pursuant to 
Article 39(a). The motion, related papers, and the record of the 
hearing must be sealed and remain under seal unless the court orders 
otherwise.
    (3) If the military judge determines on the basis of the hearing 
described in paragraph (2) of this subdivision that the evidence that 
the accused seeks to offer is relevant for a purpose under subdivision 
(b) and that the probative value of such evidence outweighs the danger 
of unfair prejudice to the alleged victim's privacy, such evidence 
shall be admissible under this rule to the extent an order made by the 
military judge specifies evidence that may be offered and areas with 
respect to which the alleged victim may be examined or cross-examined. 
Such evidence is still subject to challenge under MRE 403.
    (d) For purposes of this rule, the term ``sexual offense'' includes 
any sexual misconduct punishable under the Uniform Code of Military 
Justice, federal law or state law. ``Sexual behavior'' includes any 
sexual behavior not encompassed by the alleged offense. The term 
``sexual predisposition'' refers to an alleged victim's mode of dress, 
speech, or lifestyle that does not directly refer to sexual activities 
or thoughts but that may have a sexual connotation for the factfinder.
    (a) M.R.E. 503(b) is amended by renumbering the existing subsection 
(2) to subsection (3) and inserting the following new subsection (2) 
after current M.R.E. 503(b)(1) to read as follows:
    ``(2) A ``clergyman's assistant'' is a person employed by or 
assigned to assist a clergyman in his capacity as a spiritual 
advisor.''
    (b) M.R.E. 504 is amended by inserting new subsection (d) after 
M.R.E. 504(c):
    ``(d) Definitions. As used in this rule:
    (1) The term ``a child of either'' includes not only a biological 
child, adopted child, or ward of one of the spouses but also includes a 
child who is under the permanent or temporary physical custody of one 
of the spouses, regardless of the existence of a legal parent-child 
relationship. For purposes of this rule only, a child is: (i) an 
individual under the age of eighteen; or (ii) an individual with a 
mental handicap who functions under the age of eighteen.''
    (2) The term ``temporary physical custody'' includes instances 
where a parent entrusts his or her child with another. There is no 
minimum amount of time necessary to establish temporary physical 
custody nor must there be a written agreement. Rather, the focus is on 
the parent's agreement with another for assuming parental 
responsibility for the child. For example, temporary physical custody 
may include instances where a parent entrusts another with the care of 
their child for recurring care or during absences due to temporary duty 
or deployments.
    Part IV of the Manual for Courts-Martial, United States, is amended 
as follows:
    (a) Paragraph 43, Article 118, Murder, paragraph (a)(4) is amended 
to read:
    (a)(4) is engaged in the perpetration or attempted perpetration of 
burglary, sodomy, rape, rape of a child, aggravated sexual assault, 
aggravated sexual assault of a child, aggravated sexual contact, 
aggravated sexual abuse of a child, aggravated sexual contact with a 
child, robbery or aggravated arson; is guilty of murder, and shall 
suffer such punishment as a court martial may direct, except that if 
found guilty under clause (1) or (4), he shall suffer death or 
imprisonment for life as a court martial may direct.
    (b) Paragraph 43, Article 118, Murder, paragraph (b)(4) is amended 
to read:
    (b)(4) That, at the time of the killing, the accused was engaged in 
the perpetration or attempted perpetration of burglary, sodomy, rape, 
rape of a child, aggravated sexual assault, aggravated sexual assault 
of a child, aggravated sexual contact, aggravated sexual abuse of a 
child, aggravated sexual contact with a child, robbery, or aggravated 
arson.
    (c) Paragraph 44, Article 119, Manslaughter, paragraph (b)(2)(d), 
is amended to read:
    (b)(2)(d) That this act or omission of the accused constituted 
culpable negligence, or occurred while the accused was perpetrating or 
attempting to perpetrate an offense directly affecting the person other 
than burglary, sodomy, rape, rape of a child, aggravated sexual 
assault, aggravated sexual assault of a child, aggravated sexual 
contact, aggravated sexual abuse of a child, aggravated sexual contact 
with a child, robbery, or aggravated arson.
    (d) Paragraph 45, Rape and Carnal Knowledge, is amended to read:

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

    a. Text. See Article 120, UCMJ.
    (a) Rape. Any person subject to this chapter who causes another 
person of any age to engage in a sexual act by--
    (1) Using force against that other person;
    (2) Causing grievous bodily harm to any person;
    (3) Threatening or placing that other person in fear that any 
person will be subjected to death, grievous bodily harm, or kidnapping;
    (4) Rendering another person unconscious; or
    (5) Administering to another person by force or threat of force, or 
without the knowledge or permission of that person, a drug, intoxicant, 
or other similar substance and thereby substantially impairs the 
ability of that other person to appraise or control conduct;
    Is guilty of rape and shall be punished as a court-martial may 
direct.
    (b) Rape of a child. Any person subject to this chapter who--
    (1) Engages in a sexual act with a child who has not attained the 
age of 12 years; or
    (2) Engages in a sexual act under the circumstances described in 
subsection (a) with a child who has attained the age of 12 years;
    Is guilty of rape of a child and shall be punished as a court-
martial may direct.
    (c) Aggravated sexual assault. Any person subject to this chapter 
who--
    (1) Causes another person of any age to engage in a sexual act by--
    (A) Threatening or placing that other person in fear (other than by 
threatening or placing that other person in fear that any person will 
be subjected to death, grievous bodily harm, or kidnapping); or
    (B) Causing bodily harm; or

[[Page 45783]]

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

[[Page 45784]]

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

[[Page 45785]]

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

[[Page 45786]]

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

[[Page 45787]]

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

[[Page 45788]]

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

[[Page 45789]]

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

[[Page 45790]]

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

[[Page 45791]]

----)] by rendering (him) (her) (----) unconscious.
    (f) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by administration 
of drug, intoxicant, or other similar substance.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, [(engage in sexual contact, to wit: ---- with ----, a 
child who had not attained the age of 12 years but had not attained the 
age of 16 years) (cause ---- to engage in sexual contact, to wit: ----, 
with ----, a child who had not attained the age of 12 years but had not 
attained the age of 16 years) (cause sexual contact with or by ----, a 
child who had not attained the age of 12 years but had not attained the 
age of 16 years, to wit: ----)] by administering to (him) (her) (----) 
a drug, intoxicant, or other similar substance (by force) (by threat of 
force) (without (his) (her) (----) knowledge or permission), and 
thereby substantially impaired (his) (her) (----) ability to 
[(appraise) (control)] [(his) (her)] conduct.
    (8) Abusive sexual contact.
    (a) Abusive sexual contact by using threats or placing in fear.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, [(engage in sexual contact, to wit: ---- with ----) (cause 
---- to engage in sexual contact, to wit: ----, with ----) (cause 
sexual contact with or by ----, to wit: ----)] by [(threatening) 
(placing (him) (her) (----) in fear of)] [(physical injury to ----) 
(injury to ----'s property) (accusation of crime) (exposition of 
secret) (abuse of military position) (----)].
    (b) Abusive sexual contact by causing bodily harm.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, [(engage in sexual contact, to wit: ---- with ----) (cause 
---- to engage in sexual contact, to wit: ----, with ----) (cause 
sexual contact with or by ----, to wit: ----)] by causing bodily harm 
upon (him) (her) (----), to wit: (----).
    (c) Abusive sexual contact by engaging in a sexual act with a 
person substantially incapacitated or substantially incapable of 
appraising the act, declining participation, or substantially incapable 
of communicating unwillingness.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, [(engage in sexual contact, to wit: ---- with ----) (cause 
---- to engage in sexual contact, to wit: ----, with ----) (cause 
sexual contact with or by ----, to wit: ----)] while (he) (she) (----) 
was [substantially incapacitated] [substantially incapable of 
(appraising the nature of the sexual contact) (declining participation 
in the sexual contact) (communicating unwillingness to engage in the 
sexual contact)].
    (9) Abusive sexual contact with a child.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, [(engage in sexual contact, to wit: ---- with ----, a 
child who had attained the age of 12 years but had not attained the age 
of 16 years) (cause ---- to engage in sexual contact, to wit: ----, 
with ----, a child who had attained the age of 12 years but had not 
attained the age of 16 years) (cause sexual contact with or by ----, a 
child who had attained the age of 12 years but had not attained the age 
of 16 years, to wit: ----)].
    (10) Indecent liberties with a child.
    In that ---- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, (take indecent liberties) (engage in indecent conduct) in 
the physical presence of ----, a (female) (male) under 16 years of age, 
by (communicating the words: to wit: ----) (exposing one's private 
parts, to wit: ----) (----), with the intent to [(arouse) (appeal to) 
(gratify) the (sexual desire) of the ---- (or ----)] [(abuse) 
(humiliate) (degrade) ----].
    (11) Indecent act.
    In that ---- (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
---- 20----, wrongfully commit indecent conduct, to wit ----.
    (12) Forcible pandering.
    In that ---- (personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
---- 20----, compel ---- to engage in [(a sexual act) (sexual contact) 
(lewd act), to wit: ----] for the purpose of receiving money or other 
compensation with ---- (a) person(s) to be directed to (him) (her) by 
the said ----.
    (13) Wrongful sexual contact.
    In that ---- (personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
---- 20----, engage in sexual contact with ----, to wit: ----, and such 
sexual contact was without legal justification or lawful authorization 
and without the permission of ----.
    (14) Indecent exposure.
    In that ---- (personal jurisdiction data), did (at/on board--
location), (subject-matter jurisdiction data, if required), on or about 
---- 20----, intentionally (expose in an indecent manner (his) (her) 
(----) (----) while (at the barracks window) (in a public place) (----
).
    (e) Paragraph 50, Art. 124, Maiming, paragraph (e) is amended to 
read:
    e. Maximum Punishment. Dishonorable discharge, forfeiture of all 
pay and allowances, and confinement for 20 years.
    (f) Paragraph 51, Article 125, Sodomy, paragraph (d) is amended by 
deleting the following lesser included offenses under paragraph 
(d)(1)(b); (d)(2)(c); and (d)(3)(a):
    (d)(1)(b) Article 134 indecent acts with a child under 16.
    (d)(2)(c) Article 134 indecent assault.
    (d)(3)(a) Article 134 indecent acts with another.
    (g) Paragraph 51, Article 125, paragraph (d) is amended by adding 
at the end of paragraph d:

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

    (h) Paragraph 54, Art. 128, Assault, paragraph (b)(4)(a) is amended 
to read:
    (4) Aggravated Assault.
    (a) Assault with a dangerous weapon or other means of force likely 
to produce death or grievous bodily harm.
    (i) That the accused attempted to do, offered to do, or did bodily 
harm to a certain person;
    (ii) That the accused did so with a certain weapon, means, or 
force;
    (iii) That the attempt, offer, or bodily harm was done with 
unlawful force or violence; and
    (iv) That the weapon, means, or force was used in a manner likely 
to produce death or grievous bodily harm.
    (Note: Add any of the following as applicable.)
    (v) That the weapon was a loaded firearm.
    (vi) That the person was a child under the age of 16 years.
    (i) Paragraph 54, Art. 128, Assault, paragraph (b)(4)(b) is amended 
to read:
    (4) Aggravated Assault.
    (b) Assault in which grievous bodily harm is intentionally 
inflicted.
    (i) That the accused assaulted a certain person;
    (ii) That grievous bodily harm was thereby inflicted upon such 
person;
    (iii) That the grievous bodily harm was done with unlawful force or 
violence; and

[[Page 45792]]

    (iv) That the accused, at the time, had the specific intent to 
inflict grievous bodily harm.
    (Note: Add any of the following as applicable.)
    (v) That the injury was inflicted with a loaded firearm.
    (vi) That the person was a child under the age of 16 years.
    (j) Paragraph 54, Art. 128, Assault, paragraph (c)(4)(a) is amended 
by adding new paragraph (c)(4)(a)(v) after (c)(4)(a)(iv):
    (4) Aggravated Assault.
    (a) Assault with a dangerous weapon or other means or force likely 
to produce death or grievous bodily harm.
    (v) When committed upon a child under 16 years of age. The maximum 
punishment is increased when aggravated assault with a dangerous weapon 
or means likely to produce death or grievous bodily harm is inflicted 
upon a child under 16 years of age. Knowledge that the person assaulted 
was under the age of 16 years is not an element of the offense.
    (k) Paragraph 54, Art. 128, Assault, paragraph (c)(4)(b) is amended 
by adding new paragraph (c)(4)(b)(iv):
    (4) Aggravated Assault.
    (b) Assault in which grievous bodily harm is intentionally 
inflicted.
    (iv) When committed upon a child under 16 years of age. The maximum 
punishment is increased when aggravated assault with intentional 
infliction of grievous bodily harm is inflicted upon a child under 16 
years of age. Knowledge that the person assaulted was under the age of 
16 years is not an element of the offense.
    (l) Paragraph 54, Art. 128, Assault, paragraph (d)(6) is amended to 
read:
    d. Lesser included offenses.
    (6) Assault with a dangerous weapon or other means or force likely 
to produce death or grievous bodily harm. Article 128 simple assault; 
assault consummated by a battery; (when committed upon a child under 
the age of 16 years--assault consummated by a battery upon a child 
under the age of 16 years).
    (m) Paragraph 54, Art. 128, Assault, paragraph (d)(7) is amended to 
read:
    d. Lesser included offenses.
    (7) Assault in which grievous bodily harm is intentionally 
inflicted. Article 128 simple assault; assault consummated by a 
battery; assault with a dangerous weapon; (when committed upon a child 
under the age of 16 years--assault consummated by a battery upon a 
child under the age of 16 years).
    (n) Paragraph 54, Art. 128, Assault, paragraph (e)(8) is amended to 
read:
    e. Maximum punishment.
    (8) Aggravated assault with a dangerous weapon or other means of 
force to produce death or grievous bodily harm.
    After current (a), change (b) as follows below and current (b) 
becomes (c):
    (b) Aggravated assault with a dangerous weapon or other means of 
force to produce death or grievous bodily harm when committed upon a 
child under the age of 16 years. Dishonorable discharge, total 
forfeitures, and confinement for 5 years.
    (o) Paragraph 54, Art. 128, Assault, paragraph (e)(9) is amended to 
read:
    e. Maximum punishment.
    (9) Aggravated assault in which grievous bodily harm is 
intentionally inflicted.
    After current (a), change (b) as follows below and current (b) 
becomes (c):
    (b) Aggravated assault in which grievous bodily harm is 
intentionally inflicted when committed upon a child under the age of 16 
years. Dishonorable discharge, total forfeitures, and confinement for 8 
years.
    (p) Paragraph 54, Art. 128, Assault, paragraph (f)(8) is amended to 
read:
    f. Sample specifications.
    (8) Assault, Aggravated with a dangerous weapon, means or force.
    In that ---- (personal jurisdiction data), did, (at/on board 
location)(subject matter jurisdiction data, if required), on or about 
---- 20----, commit an assault upon ---- (a child under the age of 16 
years) by (shooting) (pointing) (striking) (cutting) (----) (at him/
her) (him/her) (in) (on)(the----) with (a dangerous weapon) a (means) 
(force) likely to produce death or grievous bodily harm), to wit: A 
(loaded firearm) (pickax) (bayonet) (club) (----).
    (q) Paragraph 54, Art. 128, Assault, paragraph (f)(8) is amended to 
read:
    f. Sample specifications.
    (9) Assault, aggravated inflicting grievous bodily harm.
    In that ---- (personal jurisdiction data), did, (at/on board 
location) (subject matter jurisdiction data, if required), on or about 
---- 20----, commit an assault upon (a child under the age of 16 years) 
by (shooting) (striking)(cutting) (----) (him/her) (on) the with a 
(loaded firearm) (club) (rock) (brick) (---- and did thereby 
intentionally inflict grievous bodily harm upon him/her, to wit: A 
(broken leg) (deep cut)(fractured skull) (----).
    (r) Paragraph 64, Article 134 Assault w/intent to commit murder, 
voluntary, manslaughter, rape, robbery, sodomy, arson, burglary, or 
housebreaking, paragraph (c)(4), 1st sentence, is amended to read:
    (c)(4) Assault with intent to commit rape. In assault with intent 
to commit rape, the accused must have intended to complete the offense.
    (s) Paragraph 64, Article 134 Assault w/intent to commit murder, 
voluntary, manslaughter, rape, robbery, sodomy, arson, burglary, or 
housebreaking, is amended by deleting the following lesser included 
offense under paragraph (d)(3)(b):
    (d)(3)(b) Article 134 indecent assault.
    (t) New paragraph 68a, Article 134--(Child Endangerment) is 
inserted:

68a. Article 134--(Child Endangerment)

    a. Text. See paragraph 60.
    b. Elements.

Child Endangerment

    (1) That the accused had a duty for the care of a certain child;
    (2) That the child was under the age of 16 years;
    (3) That the accused endangered the child's mental or physical 
health, safety, or welfare through design or culpable negligence;
     and
    (4) That, under the circumstances, the conduct of the accused was 
to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
    c. Explanation.
    (1) In general. This offense is intended to prohibit and therefore 
deter child endangerment through design or culpable negligence.
    (2) Design. Design means on purpose, intentionally, or according to 
plan and requires specific intent to endanger the child.
    (3) Culpable negligence. Culpable negligence is a degree of 
carelessness greater than simple negligence. It is a negligent act or 
omission accompanied by a culpable disregard for the foreseeable 
consequences to others of that act or omission. In the context of this 
offense, culpable negligence may include acts that, when viewed in the 
light of human experience, might foreseeably result in harm to a child, 
even though such harm would not necessarily be the natural and probable 
consequences of such acts. In this regard, the age and maturity of the 
child, the conditions surrounding the neglectful conduct, the proximity 
of assistance available, the nature of the environment in which the 
child may have been left, the provisions made for care of the child, 
and the location of the parent or adult responsible for the child 
relative to the location of the child, among others, may be considered 
in determining whether the conduct constituted culpable negligence.
    (4) Harm. Actual physical or mental harm to the child is not 
required. The offense requires that the accused's

[[Page 45793]]

actions reasonably could have caused physical or mental harm or 
suffering. However, if the accused's conduct does cause actual physical 
or mental harm, the potential maximum punishment increases. See 
Paragraph 54(c)(4)(a)(iii) for an explanation of ``grievous bodily 
harm''.
    (4) Endanger. ``Endanger'' means to subject one to reasonable 
probability of harm.
    (5) Age of victim as a factor. While this offense may be committed 
against any child under 16, the age of the victim is a factor in the 
culpable negligence determination. Leaving a teenager alone for an 
evening may not be culpable (or even simple) negligence; leaving an 
infant or toddler for the same period might constitute culpable 
negligence. On the other hand, leaving a teenager without supervision 
for an extended period while the accused was on temporary duty outside 
commuting distance might constitute culpable negligence.
    (6) Duty required. The duty of care is determined by the totality 
of the circumstances and may be established by statute, regulation, 
legal parent-child relationship, mutual agreement, or assumption of 
control or custody by affirmative act. When there is no duty of care of 
a child, there is no offense under this paragraph. Thus, there is no 
offense when a stranger makes no effort to feed a starving child or an 
individual/neighbor not charged with the care of a child does not 
prevent the child from running and playing in the street.
    d. Lesser included offenses.
    (1) Child Endangerment by Design.
    Article 134--Child Endangerment by culpable negligence.
    Article 80--Attempts.
    e. Maximum punishment.
    i. Endangerment by design resulting in grievous bodily harm. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 8 years.
    ii. Endangerment by design resulting in harm. Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 5 
years.
    iii. Other cases by design. Dishonorable discharge, forfeiture of 
all pay and allowances and confinement for 4 years.
    iv. Endangerment by culpable negligence resulting in grievous 
bodily harm. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for 3 years.
    v. Endangerment by culpable negligence resulting in harm. Bad-
conduct discharge, forfeiture of all pay and allowances, and 
confinement for 2 years.
    vi. Other cases by culpable negligence. Bad-conduct discharge, 
forfeiture of all pay and allowances, and confinement for 1 year.
    f. Sample specification.
    i. Resulting in grievous bodily harm.
    In that ---- (personal jurisdiction data), (at/on board-location) 
(subject matter jurisdiction data, if required) on or about ----, 20 --
--, had a duty for the care of ----, a child under the age of 16 years 
and did endanger the (mental health) (physical health) (safety) 
(welfare) of said ----, by (leaving the said ---- unattended in his 
quarters for over ---- hours/days with no adult present in the home) 
(by failing to obtain medical care for the said ------'s diabetic 
condition) (----), and that such conduct (was by design)(constituted 
culpable negligence) (which resulted in grievous bodily harm, to wit:) 
(broken leg) (deep cut) (fractured skull) (----)).
    ii. Resulting in harm.
    In that ------ (personal jurisdiction data), (at/on board-location) 
(subject matter jurisdiction data, if required) on or about ------, 20 
----, had a duty for the care of ------, a child under the age of 16 
years, and did endanger the (mental health) (physical health) (safety) 
(welfare) of said ------, by (leaving the said ------ unattended in his 
quarters for over ---- hours/days with no adult present in the home) 
(by failing to obtain medical care for the said ------'s diabetic 
condition) (------), and that such conduct (was by design) (constituted 
culpable negligence)(which resulted in (harm, to wit:) (a black eye) 
(bloody nose) (minor cut) (------)).
    iii. Other cases.
    In that ------ (personal jurisdiction data), (at/on board-
location)(subject matter jurisdiction data, if required) on or about --
----, 20 ----, was responsible for the care of ------, a child under 
the age of 16 years, and did endanger the (mental health) (physical 
health) (safety) (welfare) of said ------, by (leaving the said ------ 
unattended in his quarters for over ---- hours/days with no adult 
present in the home) (by failing to obtain medical care for the said --
----'s diabetic condition) (------), and that such conduct (was by 
design) (constituted culpable negligence).
    (u) Paragraph 63, Article 134 Assault, Indecent is deleted.
    (v) Paragraph 87, Indecent acts or liberties with a child is 
deleted.
    (w) Paragraph 88, Indecent Exposure is deleted.
    (x) Paragraph 90, Indecent acts with another is deleted.
    (y) Paragraph 89, Indecent language, paragraph (c), is amended to 
read:
    c. Explanation. ``Indecent'' language is that which is grossly 
offensive to modesty, decency, or propriety, or shocks the moral sense, 
because of its vulgar, filthy, or disgusting nature, or its tendency to 
incite lustful thought. Language is indecent if it tends reasonably to 
corrupt morals or incite libidinous thoughts. The language must violate 
community standards. See paragraph 45 if the communication was made in 
the physical presence of a child.
    ----(u) Paragraph 97. Article 134 Pandering and Prostitution is 
amended by deleting ``compel'' throughout subsection (b)(2) to read:

b. Elements

    (2) Pandering by inducing, enticing, or procuring act of 
prostitution.
    (a) That the accused induced, enticed, or procured a certain person 
to engage in an act of sexual intercourse for hire and reward with a 
person to be directed to said person by the accused;
    (b) That this inducing, enticing, or procuring was wrongful;
    (c) That, under the circumstances, the conduct of the accused was 
to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
    (v) Paragraph 97. Article 134 Pandering and Prostitution is amended 
by deleting ``compel'' throughout the subtitle and subsection (f)(2) to 
read:
    (2) Inducing, enticing, or procuring act of prostitution.
    In that ------ (personal jurisdiction data), did (at/on board-
location) (subject-matter jurisdiction data, if required), on or about 
------ 20 ----, wrongfully (induce) (entice) (procure) ---- to engage 
in (an act) (acts) of (sexual intercourse for hire and reward) with 
persons to be directed to him/her by the said ------.
    These amendments shall take effect on [30 days after signature].
    (a) Nothing in these amendments shall be construed to make 
punishable any act done or omitted prior to [30 days after signature] 
that was not punishable when done or omitted.
    (b) Nothing in these amendments shall be construed to invalidate 
any nonjudicial punishment proceedings, restraint, investigation, 
referral of charges, trial in which arraignment occurred, or other 
action begun prior to [30 days after signature], and any such 
nonjudicial punishment, restraint, investigation, referral of charges, 
trial, or other action may proceed in the same manner and with the same 
effect as if these amendments had not been prescribed.

[[Page 45794]]

Changes to the Discussion Accompanying the Manual for Courts Martial, 
United States

    (a) Amend the Discussion accompanying R.C.M. 810(d) to read as 
follows:
    ``The trier of fact is not bound by the sentence previously 
adjudged or approved at a rehearing. The members should not be advised 
of the sentence limitation under this rule. See R.C.M. 1005(e)(1). An 
appropriate sentence on a retried or reheard offense should be adjudged 
without regard to any credit to which the accused may be entitled. See 
R.C.M. 103(2) and R.C.M. 103(3) as to when a rehearing may be a capital 
case.''
    (b) Insert the following new Discussion section after R.C.M. 
916(j):

Discussion

    The statutory text of Article 120(r) specifically limits the 
affirmative defense for mistake of fact as to consent to Article 120(a) 
rape, Article 120(c) aggravated sexual assault, Article 120(e) 
aggravated sexual contact, and Article 120(h) abusive sexual contact. 
For all other offenses under Article 120, consent is not an issue and 
mistake of fact as to consent is not an affirmative defense.
    (c) Amend the Discussion accompanying R.C.M. 916 (j)(2) in the 3rd 
paragraph, 1st sentence, to read:
    Examples of offenses in which the accused's intent or knowledge is 
immaterial include: Rape of a child, aggravated sexual contact with a 
child, or indecent liberty with a child (if the victim is under 12 
years of age, knowledge or belief as to age is immaterial).
    (d) Amend the Discussion accompanying R.C.M. 917(c) by adding the 
following sentence after the last sentence in the Discussion:
    ``See R.C.M. 1102 (b)(2) for military judge's authority, upon 
motion or sua sponte, to enter finding of not guilty after findings but 
prior to authentication of the record.''
    (d) Amend the Discussion accompanying R.C.M. 1005(e)(1) to read as 
follows:
    ``The maximum punishment that may be adjudged is the lowest of the 
total permitted by the applicable paragraph(s) in Part IV for each 
separate offense of which the accused was convicted (see also R.C.M. 
1003 concerning additional limits on punishments and additional 
punishments which may be adjudged) or the jurisdictional limit of the 
court-martial (see R.C.M. 201(f) and R.C.M. 1301(d)). See also 
discussion to R.C.M. 810(d). The military judge may upon request or 
when otherwise appropriate instruct on lesser punishments. See R.C.M. 
1003. If an additional punishment is authorized under R.C.M. 1003(d), 
the members must be informed of the basis for the increased punishment.
    ``A carefully drafted sentence worksheet ordinarily should be used 
and should include reference to all authorized punishments in the 
case.''
    (e) A Discussion accompanying R.C.M. 1107(f)(5)(A) is inserted to 
read as follows:
    ``In approving a sentence not in excess of or more severe than one 
previously approved (see R.C.M. 810(d)), a convening authority is 
prohibited from approving a punitive discharge more severe than one 
formerly approved, e.g., a convening authority is prohibited from 
approving a dishonorable discharge if a bad conduct discharge had 
formerly been approved. Otherwise, in approving a sentence not in 
excess of or more severe than one previously imposed, a convening 
authority is not limited to approving the same or lesser type of 'other 
punishments' formerly approved.''

Changes to Appendix 12, Maximum Punishment Chart

    Appendix 12 is amended as follows:
    Amend Article 120 by deleting the following:
    Rape
    Carnal Knowledge
    With child at least 12
    With child under the age of 12

Amend Article 120 by inserting
 the following:
    Rape and Rape of a Child.....  Death, DD, BCD................  Life.........................  Total.
    Aggravated Sexual Assault....  DD, BCD.......................  30 yrs.......................  Total.
    Aggravated Sexual Assault of   DD, BCD.......................  20 yrs.......................  Total.
     a Child.
    Aggravated Sexual Abuse of a   DD, BCD.......................  20 yrs.......................  Total.
     Child.
    Aggravated Sexual Contact....  DD, BCD.......................  20 yrs.......................  Total.
    Aggravated Sexual Contact      DD, BCD.......................  20 yrs.......................  Total.
     with a Child.
    Abusive Sexual Contact with a  DD, BCD.......................  15 yrs.......................  Total.
     Child.
    Indecent Liberty with a Child  DD, BCD.......................  15 yrs.......................  Total.
    Abusive Sexual Contact.......  DD, BCD.......................  7 yrs........................  Total.
    Indecent Act.................  DD, BCD.......................  5 yrs........................  Total.
    Forcible Pandering...........  DD, BCD.......................  5 yrs........................  Total.
    Wrongful Sexual Contact......  DD, BCD.......................  1 yr.........................  Total.
    Indecent Exposure............  DD, BCD.......................  1 yr.........................  Total.
Amend Article 124 to read:
    Maiming......................  DD, BCD.......................  20 yrs.......................  Total.
Amend Article 128 by inserting
 the following:
    Aggravated assault with a      DD, BCD.......................  5 yrs........................  Total.
     dangerous weapon or other
     means of force to produce
     death or grievous bodily
     harm when committed upon a
     child under the age of 16
     years.
    Aggravated assault in which    DD, BCD.......................  8 yrs........................  Total.
     grievous bodily harm is
     intentionally inflicted when
     committed upon a child under
     the age of 16 years.
Amend Article 134 by inserting:
Child Endangerment:
    Endangerment by design         DD, BCD.......................  8 yrs........................  Total.
     resulting in grievous bodily
     harm.
    Endangerment by design         DD, BCD.......................  5 yrs........................  Total.
     resulting in harm.
    Other cases by design........  DD, BCD.......................  4 yrs........................  Total.
    Endangerment by culpable       DD, BCD.......................  3 yrs........................  Total.
     negligence resulting in
     grievous bodily harm.
    Endangerment by culpable       BCD...........................  2 yrs........................  Total.
     negligence resulting in harm.
    Other cases by culpable        BCD...........................  1 yr.........................  Total.
     negligence.
Amend Article 134 by deleting the
 following:
    Assault--Indecent............
    Indecent Acts of Liberties
     with a Child.

[[Page 45795]]


    Indecent Exposure............
    Indecent Acts with Another...


Changes to Appendix 21, Analysis of Rules for Courts Martial

    (a) Amend the Analysis accompanying R.C.M. 916(b) by inserting the 
following paragraph at the end thereof:
    200 Amendment. Changes to this paragraph, deleting ``carnal 
knowledge'', are based on section 552 of the National Defense 
Authorization Act for Fiscal Year 2006, Public Law 109-163, 6 January 
2006, which supersedes the previous paragraph 45, Rape and Carnal 
Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual 
assault and other sexual misconduct.
    (b) Amend the Analysis accompanying R.C.M. 916(j)(2) by inserting 
the following paragraph at the end thereof:
    200 Amendment. Changes to this paragraph, deleting ``carnal 
knowledge'' and consistent language, are based on section 552 of the 
National Defense Authorization Act for Fiscal Year 2006, Public Law 
109-163, 6 January 2006, which supersedes the previous paragraph 45, 
Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 
with Rape, sexual assault and other sexual misconduct.
    (c) Insert a new Analysis section to accompany new subparagraph 
R.C.M. 916(j)(3) at the end of the analysis discussing subsection RCM 
916(j) :
    200 Amendment. This paragraph is new and is based on the mistake of 
fact defense incorporated in section 552 of the National Defense 
Authorization Act for Fiscal Year 2006, Public Law 109-163, 6 January 
2006, which supersedes the previous paragraph 45, Rape and Carnal 
Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual 
assault and other sexual misconduct.
    (d) Amend the Analysis accompanying R.C.M. 920(e) by inserting the 
following paragraph at the end thereof:
    200 Amendment. Changes to this paragraph, deleting ``carnal 
knowledge'' and consistent language, are based on section 552 of the 
National Defense Authorization Act for Fiscal Year 2006, Public Law 
109-163, 6 January 2006, which supersedes the previous paragraph 45, 
Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 
with Rape, sexual assault and other sexual misconduct.
    (e) Amend the Analysis accompanying R.C.M. 1004(c) by inserting the 
following paragraph at the end thereof :
    200 Amendment. Changes to this paragraph adding sexual offenses 
other than rape are based on subsection (d) of section 552 of the 
National Defense Authorization Act for Fiscal Year 2006, Public Law 
109-163, 6 January 2006, which supersedes the previous paragraph 45, 
Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 
with Rape, sexual assault and other sexual misconduct.
    (f) Amend the analysis accompanying R.C.M. 1102(d) by inserting the 
following paragraph at the end thereof:
    200 Amendment. For purposes of this rule, the list of appropriate 
reviewing authorities included in the 1994 amendment includes any court 
authorized to review cases on appeal under the UCMJ.

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

    (a) Amend the Analysis accompanying MRE 412, Relevance of alleged 
victim's sexual behavior or sexual predisposition, by inserting the 
following paragraph at the end thereof:
    200 Amendment. This amendment is intended to aid practitioners in 
applying the balancing test of MRE 412. Specifically, the amendment 
clarifies: (1) That under MRE 412, the evidence must be relevant for 
one of the purposes highlighted in subdivision (b); (2) that in 
conducting the balancing test, the inquiry is whether the probative 
value of the evidence outweighs the danger of unfair prejudice to the 
victim's privacy; and (3) that even if the evidence is admissible under 
MRE 412, it may still be excluded under MRE 403. The proposed changes 
highlight current practice. See U.S. v. Banker, 60 M.J. 216, 223 (2004) 
(Citing ``It would be illogical if the judge were to evaluate evidence 
`offered by the accused' for unfair prejudice to the accused. Rather, 
in the context of this rape shield statute, the prejudice in question 
is, in part, that to the privacy interests of the alleged victim. 
Sanchez, 44 M.J. at 178 (``[I]n determining admissibility there must be 
a weighing of the probative value of the evidence against the interest 
of shielding the victim's privacy.'').''
    Moreover, the amendment clarifies that MRE 412 applies in all cases 
involving a sexual offense wherein the person against whom the evidence 
is offered can reasonably be characterized as a ``victim of the alleged 
sexual offense.'' Thus, the rule applies to: ``consensual sexual 
offense'', ``nonconsensual sexual offenses''; sexual offenses 
specifically proscribed under the UCMJ, e.g., rape, aggravated sexual 
assault, etc.; those federal sexual offenses DoD is able to prosecute 
under clause 3 of Article 134, U.C.M.J., e.g., 18 U.S.C. Sec.  2252A 
(possession of child pornography); and state sexual offenses DoD is 
able to assimilate under the Federal Assimilative Crimes Act (18 U.S.C. 
13).
    (b) Amend the analysis accompanying M.R.E. 503(b) by inserting the 
following paragraph at the end thereof:
    ``200 Amendment: The previous subsection (2) of MRE 503(b) was 
renumbered subsection (3) and the new subsection (2) was inserted to 
define the term ``clergyman's assistant.''
    (c) Amend the Analysis accompanying M.R.E. 504 by inserting the 
following paragraph at the end thereof:
    ``200 Amendment: (d) Definition. Rule 504(d) modifies the rule and 
is intended to afford additional protection to children. Previously, 
the term ``a child of either,'' referenced in Rule 504(c)(2)(A), did 
not include a ``de facto'' child or a child who is under the physical 
custody of one of the spouses but lacks a formal legal parent-child 
relationship with at least one of the spouses. See U.S. v. McCollum, 58 
M.J. 323 (C.A.A.F. 2003). Prior to this amendment, an accused could not 
invoke the spousal privilege to prevent disclosure of communications 
regarding crimes committed against a child with whom he or his spouse 
had a formal, legal parent-child relationship; however, the accused 
could invoke the privilege to prevent disclosure of communications 
where there was not a formal, legal parent-child relationship. This 
distinction between legal and ``de facto'' children resulted in 
unwarranted discrimination among child victims and ran counter to the 
public policy of protecting children. Rule 504(d) recognizes the public 
policy of protecting children by addressing disparate treatment among 
child victims entrusted to another. The ``marital communications 
privilege * * * should not prevent a `properly outraged spouse with 
knowledge from testifying against a perpetrator' of child abuse within 
the home regardless of whether the child is part of that family.'' U.S. 
v. McCollum, 58 M.J. 323, 342, fn.6 (C.A.A.F. 2003) (citing U.S. v. 
Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997)).

[[Page 45796]]

Changes to Appendix 23, Analysis of Punitive Articles

    (a) The Analysis accompanying Article 118, Murder, is amended by 
inserting the following:
43. Article 118 Murder
    a. Text.
    b. Elements.
    200 Amendment. Paragraph (4) of the text and elements has been 
amended for consistency with the changes to Article 118 under section 
552 of the National Defense Authorization Act for Fiscal Year 2006, 
Public Law 109-163, 6 January 2006. See subsection (d) of Section 552.
    (b) The Analysis accompanying Article 119, Manslaughter, is amended 
by inserting the following:
44. Article 119 Manslaughter
    b. Elements.
    200 Amendment. Paragraph (4) of the elements has been amended for 
consistency with the changes to Article 118 under section 552 of the 
National Defense Authorization Act for Fiscal Year 2006, Public Law 
109-163, 6 January 2006. See subsection (d) of Section 552.
    (c) The Analysis accompanying Article 120, Rape, Sexual Assault, 
and other Sexual Misconduct, is amended by inserting the following:

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

    200 Amendment. Changes to this paragraph are contained in Div. A. 
Title V. Subtitle E, section 552(a)(1) of the National Defense 
Authorization Act for Fiscal Year 2006, Public Law 109-163, 119 Stat. 
3257 (6 January 2006), which supersedes the previous paragraph 45, Rape 
and Carnal Knowledge, in its entirety and replaces paragraph 45 with 
Rape, sexual assault and other sexual misconduct. In accordance with 
section 552(c) of that Act, Public Law 109 163, 119 Stat. 3263, the 
amendment to the Article applies only with respect to offenses 
committed on or after 1 October 2007.
    Nothing in these amendments invalidates any nonjudicial punishment 
proceeding, restraint, investigation, referral of charges, trial in 
which arraignment occurred, or other action begun prior to 1 October 
2007. Any such nonjudical punishment proceeding, restraint, 
investigation, referral of charges, trial in which arraignment 
occurred, or other action may proceed in the same manner and with the 
same effect as if these amendments had not been prescribed.
    This new Article 120 consolidates several sexual misconduct 
offenses and is generally based on the Sexual Abuse Act of 1986, 18 
U.S.C. Sections 2241-2245. The following is a list of offenses that 
have been replaced by this new paragraph 45:
    (1) Paragraph 63, 134 Assault--Indecent, has been replaced in its 
entirety by three new offenses under paragraph 45. See subsections (e) 
Aggravated Sexual Contact, (h) Abusive Sexual Contact, and (m) Wrongful 
Sexual Contact.
    (2) Paragraph 87, 134 Indecent Acts or Liberties with a Child, has 
been replaced in its entirety by three new offenses under paragraph 45. 
See subsections (g) Aggravated Sexual Contact with a Child, (i) Abusive 
Sexual Contact with a Child, and (j) Indecent Liberty with a Child.
    (3) Paragraph 88, Article 134 Indecent Exposure, has been replaced 
in its entirety by a new offense under paragraph 45. See subsection (n) 
Indecent Exposure.
    (4) Paragraph 90, Article 134 Indecent Acts with Another, has been 
replaced in its entirety by a new offense under paragraph 45. See 
subsection (k) Indecent Act.
    (5) Paragraph 97, Article 134 Pandering and Prostitution, has been 
amended. The act of compelling another person to engage in an act of 
prostitution with another person will no longer be an offense under 
paragraph 97 and has been replaced by a new offense under paragraph 45. 
See subsection (l), Forcible Pandering.
    c. Explanation. Subparagraph (3), definition of ``indecent'', is 
taken from paragraphs 89.c and 90.c of the Manual (2005 ed.) and is 
intended to consolidate the definitions of ``indecent,'' as used in the 
former offenses under Article 134 of ``Indecent acts or liberties with 
a child,'' ``Indecent exposure,'' and ``Indecent acts with another,'' 
formerly at paragraphs 87, 88, and 90 of the 2005 Manual, and 
``Indecent language,'' at paragraph 89. The application of this single 
definition of ``indecent'' to the offenses of ``Indecent liberty with a 
child,'' ``Indecent act,'' and ``Indecent exposure'' under Article 120 
is consistent with the construction given to the former Article 134 
offenses in the 2005 Manual that were consolidated into Article 120. 
See e.g. United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004).
    e. Additional Lesser Included Offenses. The test to determine 
whether an offense is factually the same as another offense, and 
therefore lesser-included to that offense, is the ``elements'' test. 
United States v. Foster, 40 M.J. 140, 142 (C.M.A.1994). Under this 
test, the court considers ``whether each provision requires proof of a 
fact which the other does not.'' Blockburger, 284 U.S. at 304, 52 S.Ct. 
180. Rather than adopting a literal application of the elements test, 
the Court stated that resolution of lesser-included claims ``can only 
be resolved by lining up elements realistically and determining whether 
each element of the supposed 'lesser' offense is rationally derivative 
of one or more elements of the other offense--and vice versa.'' Foster, 
40 M.J. at 146. Whether an offense is a lesser-included offense is a 
matter of law that the Court will consider de novo. United States v. 
Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002).
    f. Maximum punishment. See 1995 Amendment regarding maximum 
punishment of death.
    (d) The analysis accompanying Article 124, Maiming, is amended by 
inserting the following at the end of current analysis paragraph:
    e. Maximum punishment. 200 amendment. The maximum punishment for 
the offense of maiming was increased from 7 years confinement to 20 
years confinement, consistent with the federal offense of maiming, 18 
U.S.C. 114.
    (e) The Analysis accompanying Article 125, Sodomy, is amended by 
inserting the following:
    d. Lesser included offenses.
    200 Amendment.
    The former Paragraph 87, (1)(b), Article 134 Indecent Acts or 
Liberties with a Child has been replaced in its entirety by paragraph 
45.
    The former Paragraph 63, (2)(c), Article 134 Assault--Indecent, has 
been replaced in its entirety by paragraph 45.
    The former Paragraph 90(3)(a), Article 134 Indecent Acts with 
Another, has been replaced in its entirety by paragraph 45.
    Lesser included offenses under Article 120 should be considered 
depending on the factual circumstances in each cases.
    (f) The analysis to Article 128, Assault, is amended by inserting 
the following at the end of current analysis paragraph:
    e. Maximum punishment. 200 amendment. The maximum punishments for 
some aggravated assault offenses were established to recognize the 
increased severity of such offenses when children are the victims. 
These maximum punishments are consistent with the maximum punishments 
of the Article 134 offense of Child Endangerment, established in 200.
    (g) The Analysis accompanying Article 134, Assault indecent, is 
amended by inserting the following:

[[Page 45797]]

63. Article 134 Assault-Indecent
    200 Amendment. This paragraph has been replaced in its entirety by 
paragraph 45. See Article 120 (e) Aggravated Sexual Contact, (h) 
Abusive Sexual Contact, and (m) Wrongful Sexual Contact.
    (h) The Analysis accompanying Article 134-Assault-with intent to 
commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, 
burglary, or housebreaking, is amended by inserting the following:
64. Article 134 Assault-With Intent to Commit Murder, Voluntary 
Manslaughter, Rape, Robbery, Sodomy, Arson, Burglary, or Housebreaking
    200 Amendment. This paragraph has been amended for consistency with 
the changes to Article 118 under section 552 of the National Defense 
Authorization Act for Fiscal Year 2006, Public Law 109-163, 6 January 
2006. See subsection (d) of Section 552.
    (i) The analysis to Article 134 is amended by inserting the 
following:
68a. Article 134 (Child Endangerment)
    200 Amendment. This offense is new to the Manual for Courts 
Martial. Child neglect was recognized in U.S. v. Vaughan, 58 M.J. 29 
(C.A.A.F. 2003). It is based on military custom and regulation as well 
as a majority of state statutes and captures the essence of child 
neglect, endangerment, and abuse.
    (j) The Analysis accompanying Article 134-Indecent acts with a 
child, is amended by inserting the following:
87. Article 134 Indecent Acts With a Child
    200 Amendment. This paragraph has been replaced in its entirety by 
paragraph 45. See Article 120(g) Aggravated Sexual Contact with a 
Child, (i) Abusive Sexual Contact with a Child, and (j) Indecent 
Liberty with Child.
    (k) The Analysis accompanying Article 134-Indecent Exposure is 
amended by inserting the following:
88. Article 134 Indecent Exposure
    200 Amendment. This paragraph has been replaced in its entirety by 
paragraph 45. See Article 120(n) Indecent Exposure.
    (l) The Analysis accompanying Article 134-Indecent Exposure is 
amended by inserting the following:
88. Article 134 Indecent Exposure
    200 Amendment. This paragraph has been replaced in its entirety by 
paragraph 45. See Article 120(n) Indecent Exposure.
    (j) The Analysis accompanying Article 134-Pandering and 
Prostitution is amended by inserting the following:
97. Article 134 Pandering and Prostitution
    200 Amendment. This paragraph has been amended. The act of 
compelling another person to engage in an act of prostitution with 
another person will no longer be punished under paragraph 97 and has 
been replaced by a new offense under paragraph 45. See Article 120(l) 
Forcible Pandering.

    Dated: August 4, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, DoD.
[FR Doc. 06-6817 Filed 8-9-06; 8:45 am]

BILLING CODE 5001-06-P