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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2012-OS-0129]

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 (2012 ed.) and Notice of Public Meeting.
SUMMARY: This notice also sets forth the date, time and location for a 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.

The committee also invites members of the public to suggest changes to the Manual for Courts-Martial; address specific recommended changes, and supporting rationale.

DATES: Comments on the proposed changes must be received no later than 60 days from publication in the register. A public meeting for comments will be held on December 11, 2012, at 10 a.m. in the 14th Floor Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194.
ADDRESSES: *Federal eRulemaking Portal: http://www.regulations.gov.Follow the instructions for submitting comments.

*Mail:Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

Instructions:All submissions received must include the agency name and docket number for thisFederal Registerdocument. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet athttp://www.regulations.govas they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: LTC Christopher Kennebeck, Chief, Policy Branch, Criminal Law Division, OTJAG, Room 3B548, Washington, DC 20301, 571.256.8136, emailusarmy.pentagon.hqda-otjag.mbx.jsc-public-comments@mail.mil.
SUPPLEMENTARY INFORMATION:

The proposed amendments to the MCM are as follows:

Annex

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

(a) Paragraph 4 is amended to read as follows:

“The Manual for Courts-Martial shall consist of this Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedures (Part I-V). This Manual shall be applied consistent with the purpose of military law.

The Manual shall be identified by the year in which it was printed; for example, “Manual for Courts-Martial, United States (20xx edition).” Any amendments to the Manual made by Executive Order shall be identified as “20xx” Amendments to the Manual for Courts-Martial, United States, “20xx” being the year the Executive Order was signed.

The Department of Defense Joint Service Committee (JSC) on Military Justice reviews the Manual for Courts-Martial and proposes amendments to the Department of Defense for consideration by the President on an annual basis. In conducting its annual review, the JSC is guided by DoD Directive 5500.17, “The Roles and Responsibilities of the Joint Service Committee (JSC) on Military Justice.” DoD Directive 5500.17 includes provisions allowing public participation in the annual review process.”

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

(a) R.C.M. 201(c) is amended to read as follows:

“(c)Contempt.A judge detailed to a court-martial may punish for contempt any person who uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial; disturbs the proceedings of the court-martial by any riot or disorder; or willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial. The punishment may not exceed confinement for 30 days or a fine of $1,000, or both.”

(b) R.C.M. 307(c)(3) is amended to read as follows:

“(3)Specification.A specification is a plain, concise, and definite statement of the essential facts constituting the offense charged. A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication; however, specifications under Article 134 must expressly allege the terminal element. Except for aggravating factors under R.C.M 1003(d) and R.C.M. 1004, facts that increase the maximum authorized punishment must be alleged in order to permit the possible increased punishment. No particular format is required.”

(c) R.C.M. 307(c)(4) is amended to read as follows:

“(4)Multiple offenses.Charges and specifications alleging all known offenses by an accused may be preferred at the same time. Each specification shall state only one offense. What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person. Unreasonable multiplication of charges is addressed in R.C.M. 906(b)(12); multiplicity is addressed in R.C.M. 907(b)(3)(B); and punishment limitations are addressed in R.C.M. 1003(c)(1)(C).”

(d) R.C.M. 405(f)(10) is amended to read as follows:

“(10) Have evidence, including documents or physical evidence, produced as provided under subsection (g) of this rule;”

(e) R.C.M. 405(g)(1)(B) is amended to read as follows:

“(B)Evidence.Subject to Mil. R. Evid., Section V, evidence, including documents or physical evidence, which is relevant to the investigation and not cumulative, shall be produced if reasonably available. Such evidence includes evidence requested by the accused, if the request is timely and in compliance with this rule. As soon as practicable after receipt of a request by the accused for information which may be protected under Mil. R. Evid. 505 or 506, the investigating officer shall notify the person who is authorized to issue a protective order under subsection (g)(6) of this rule, and the convening authority, if different. Evidence is reasonably available if its significance outweighs the difficulty, expense, delay, and effect on military operations of obtaining the evidence.”

(f) R.C.M. 405(g)(2)(C) is amended to read as follows:

“(C)Evidence generally.The investigating officer shall make an initial determination whether evidence is reasonably available. If the investigating officer decides that it is not reasonably available, the investigating officer shall inform the parties.”

(g) R.C.M. 405(g)(2)(C)(i) is inserted to read as follows:

“(i) Evidence under the control of the Government.Upon the investigating officer's determination that evidence is reasonably available, the custodian of the evidence shallbe requested to provide the evidence. A determination by the custodian that the evidence is not reasonably available is not subject to appeal by the accused, but may be reviewed by the military judge under R.C.M. 906(b)(3).”

(h) R.C.M. 405(g)(2)(C)(ii) is inserted to read as follows:

“(ii)Evidence not under the control of the Government.Evidence not under the control of the Government may be obtained through noncompulsory means or by subpoena duces tecum issued pursuant to procedures set forth in R.C.M. 703(f)(4)(B). A determination by the investigating officer that the evidence is not reasonably available is not subject to appeal by the accused, but may be reviewed by the military judge under R.C.M. 906(b)(3).”

(i) R.C.M. 405(i) is amended as follows:

“(i) Military Rules of Evidence.The Military Rules of Evidence do not apply in pretrial investigations under this rule except as follows:

(1) Military Rules of Evidence 301, 302, 303, 305, and Section V shall apply in their entirety.

(2) Military Rule of Evidence 412 subsections (a) and (b) shall apply in any case defined as a sexual offense in Mil. R. Evid. 412(d).

(A)Evidence generally inadmissible.Evidence described in Mil. R. Evid. 412(a) offered under any theory other than one enumerated in Mil. R. Evid. 412(b) is inadmissible. The investigating officer must note the exclusion of such evidence and the basis upon which it was offered in the investigating officer's report. An investigating officer who is not a judge advocate must seek legal advice from an impartial source concerning the admissibility, handling, and reporting of any such evidence.

(B)Procedure to determine admissibility.With respect to any evidence offered under a theory described in Mil. R. Evid. 412(b), the investigating officer must make a determination as to admissibility, as follows:

(i)Notice.A party intending to offer evidence under Mil. R. Evid. 412(b) must serve written notice on counsel representing the United States and the investigating officer at least 5 days prior to the date of the pretrial investigation that specifically describes the evidence and states the Mil. R. Evid. 412(b) purpose for which it is to be offered, unless the investigating officer, for good cause shown, sets a different time.

(ii)Victim notice.The investigating officer must notify the victim or, when appropriate, the victim's guardian or representative, or ensure that the notification is accomplished by the counsel representing the United States.

(iii)Hearing.Before admitting evidence under this rule, the investigating officer must conduct a closed hearing. The hearing must not take place prior to the accused's R.C.M. 405(f) rights advisement, but may otherwise occur during the normal course of the investigation. At the hearing, the parties may call witnesses, including the victim, and offer relevant evidence. R.C.M. 405(g) continues to apply during this hearing. The victim must be afforded a reasonable opportunity to attend and be heard. If the victim is unavailable within the meaning of R.C.M. 405(g)(1), the alternatives to testimony enumerated in R.C.M. 405(g)(4)(B) are available, including a sworn statement created for the purpose of the hearing.

(iv)Order.If the investigating officer determines on the basis of the hearing described in subsection (2)(B)(iii) that the evidence the accused seeks to offer is relevant for a purpose under Mil. R. Evid. 412(b), and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the pretrial investigation. The investigating officer must specify the evidence that may be offered and the areas with respect to which the victim or witness may be questioned.”

(j) R.C.M. 405(j)(2)(C) is amended as follows:

“(2)Contents.The report of investigation shall include:

(C) Any other statements, documents, or matters considered by the investigating officer, or recitals of the substance or nature of such evidence, including any findings made or documents admitted pursuant to subsection (i)(2)(B)(iv)” (k) R.C.M. 703(e)(2)(B) is amended to read as follows:

“(B)Contents.A subpoena shall state the command by which the proceeding is directed, and the title, if any, of the proceeding. A subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command the person to whom it is directed to produce books, papers, documents, data, or other objects or electronically stored information designated therein at the proceeding or at an earlier time for inspection by the parties.”

(l) R.C.M. 703(e)(2)(C) is amended to read as follows:

“(C)Who may issue.A subpoena may be issued by the summary court-martial, counsel representing the United States, or after referral, trial counsel, to secure witnesses or evidence for that court-martial. A subpoena may also be issued by the president of a court of inquiry or by an officer detailed to take a deposition to secure witnesses or evidence for those proceedings respectively.”

(m) R.C.M. 703(e)(2)(D) is amended to read as follows:

“(D)Service.A subpoena may be served by the person authorized by this rule to issue it, a United States Marshal, or any other person who is not less than 18 years of age. Service shall be made by delivering a copy of the subpoena to the person named and by providing to the person named travel orders and a means for reimbursement for fees and mileage as may be prescribed by the Secretary concerned, or in the case of hardship resulting in the subpoenaed witness's inability to comply with the subpoena absent initial government payment, by providing to the person named travel orders, fees and mileage sufficient to comply with the subpoena in rules prescribed by the Secretary concerned.”

(n) R.C.M. 703(e)(2)(G)(ii) is amended to read as follows:

“(ii)Requirements.A warrant of attachment may be issued only upon probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that a means of reimbursement of fees and mileage was provided to the witness or advanced to the witness in cases of hardship, that the witness is material, that the witness refused or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse is reasonably apparent for the witness' failure to appear.”

(o) R.C.M. 703(f)(4)(B) is amended to read as follows:

“(B)Evidence not under the control of the Government.Evidence not under the control of the Government may be obtained by subpoena issued in accordance with subsection (e)(2) of this rule. A subpoena duces tecum to produce books, papers, documents, data, or other objects or electronically stored information for pretrial investigation pursuant to Article 32 may be issued, following the convening authority's order directing such pretrial investigation, by either the investigating officer appointed under R.C.M. 405(d)(1) or the counsel representing the United States. A person in receipt of a subpoena duces tecum for an Article 32 hearing need not personally appear in order to comply with the subpoena.”

(p) R.C.M. 906(b)(12) is amended to read as follows:

“(12)Unreasonable multiplication of charges.The military judge may provide a remedy, as provided below, if he or she finds there has been an unreasonable multiplication of charges as applied to findings or sentence.

(i)As applied to findings.Charges that arise from substantially the same transaction, while not legally multiplicious, may still be unreasonably multiplied as applied to findings. When the military judge finds, in his or her discretion, that the offenses have been unreasonably multiplied, the appropriate remedy shall be dismissal of the lesser offenses or merger of the offenses into one specification.

(ii)As applied to sentence.Where the military judge finds that the nature of the harm requires a remedy that focuses more appropriately on punishment than on findings, he or she may find that there is an unreasonable multiplication of charges as applied to sentence. If the military judge makes such a finding, the maximum punishment for those offenses determined to be unreasonably multiplied shall be the maximum authorized punishment of the offense carrying the greatest maximum punishment.”

(q) R.C.M. 907(b)(3) is amended to read as follows:

“(3)Permissible grounds.A specification may be dismissed upon timely motion by the accused if one of the following is applicable:

(A)Defective.When the specification is so defective that it substantially misled the accused, and the military judge finds that, in the interest of justice, trial should proceed on remaining charges and specifications without undue delay; or

(B)Multiplicity.When the specification is multiplicious with another specification, isunnecessary to enable the prosecution to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed in the interest of justice. A charge is multiplicious if the proof of such charge also proves every element of another charge.”

(r) R.C.M. 916(b)(1) is amended to read as follows:

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

(s) R.C.M. 916(b)(3) is amended to read as follows:

“(3)Mistake of fact as to age.In the defense of mistake of fact as to age as described in Article 120b(d)(2) in a prosecution of a child sexual offense, the accused has the burden of proving mistake of fact as to age by a preponderance of the evidence.”

(t) R.C.M. 916(j)(2) is amended to read as follows:

“(2)Child Sexual Offenses.It is a defense to a prosecution for Article 120b(b), sexual assault of a child, and Article 120b(c), sexual abuse of a child, that, at the time of the offense, the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years. The accused must prove this defense by a preponderance of the evidence.”

(u) R.C.M. 920(e)(5)(D) is amended to read as follows:

“(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 R.C.M. 916(j)(2) is raised, add: The accused has the burden of proving the defense of mistake of fact as to age by a preponderance of the evidence.]”

(v) R.C.M. 1003(c)(1)(C) is amended to read as follows:

“(C)Multiple Offenses.When the accused is found guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense, unless the military judge finds that the offenses are either multiplicious or unreasonably multiplied.

(i)Multiplicity.A charge is multiplicious and must be dismissed if the proof of such charge also proves every element of another charged offense unless Congress intended to impose multiple punishments for the same act.

(ii)Unreasonable Multiplication.If the military judge finds that there is an unreasonable multiplication of charges as applied to sentence, the maximum punishment for those offenses shall be the maximum authorized punishment for the offense carrying the greatest maximum punishment. The military judge may either merge the offenses for sentencing, or dismiss one or more of the charges.”

(w) R.C.M. 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, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy 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.”

(x) R.C.M. 1004(c)(8) is amended to read as follows:

“(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, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson was major and who manifested a reckless indifference for human life.”

(y) R.C.M. 1004(c)(9) is amended to read as follows:

“(9) That, only in the case of a sexual offense:

(A) Under Article 120b, the victim was under the age of 12; or

(B) Under Articles 120 or 120b, the accused maimed or attempted to kill the victim;”

(z) R.C.M. 1103(b)(3) is amended by inserting new subsection (N) after R.C.M. 1103(b)(3)(M) as follows:

(N) Documents pertaining to the receipt of the record of trial by the victim pursuant to subsection (g)(3) of this rule.

(aa) R.C.M. 1103(g) is amended by inserting new subsection (3) after R.C.M. 1103(g)(2) as follows:

“(3)Cases involving sexual offenses.

(A)Scope; qualifying victim.In a general or special court-martial involving an offense under Article 120, Article 120b, Article 120c, Article 125, and all attempts to commit such offenses in violation of Article 80, where the victim of such an offense testified during the proceedings, a copy of the record of trial shall be given free of charge to that victim regardless of whether any such specification resulted in an acquittal or conviction. If a victim is a minor, a copy of the record of trial shall instead be provided to the parent or legal guardian of the victim.

(B)Notice.In accordance with regulations of the Secretary concerned, and no later than authentication of the record, trial counsel shall cause each qualifying victim to be notified of the opportunity to receive a copy of the record of trial. Qualifying victims may decline receipt of such documents in writing and any written declination shall be attached to the original record of trial.

(C)Documents to be provided.For purposes of this subsection, the record of trial shall consist of documents described in subsection (b)(2) of this rule, except for proceedings described in subsection (e) of this rule, in which case the record of trial shall consist of items described in subsection (e). Matters attached to the record as described in subsection (b)(3) of this rule are not required to be provided.” (bb) R.C.M. 1104 (b)(1) is amended by inserting new subsection (E) after the Discussion section to R.C.M. 1104(b)(1)(D)(iii)(d) as follows:

“(E)Victims of Sexual Assault.Qualifying victims, as defined in R.C.M. 1103(g)(3)(A), shall be served a copy of the record of trial in the same manner as the accused under subsection (b) of this rule. In accordance with regulations of the Secretary concerned:

(i) A copy of the record of trial shall be provided to each qualifying victim as soon as it is authenticated, or if the victim requests, at a time thereafter. The victim's receipt of the record of trial, including any delay in receiving it, shall be documented and attached to the original record of trial.

(ii) A copy of the convening authority's action as described in R.C.M. 1103(b)(2)(D)(iv) shall be provided to each qualifying victim as soon as each document is prepared. If the victim makes a request in writing, service of the record of trial may be delayed until the action is available.

(iii) Classified information pursuant to subsection (b)(1)(D) of this rule, sealed matters pursuant to R.C.M. 1103A, or other portions of the record the release of which would unlawfully violate the privacy interests of any party, to include those afforded by 5 U.S.C. § 552a, The Privacy Act of 1974, shall not be provided. Matters attached to the record as described in R.C.M. 1103(b)(3) are not required to be provided.”

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

(a) In paragraphs 1 through 113, the lesser included offenses in subparagraph d are uniformly amended to delete the existing language and insert the following words:

“See paragraph 3 of this part and Appendix 12A.”

(b) Paragraph 3b, Article 79, Lesser Included Offenses, is amended to read as follows:

“b.Explanation.

(1) In general. A lesser offense is “necessarily included” in a charged offense when the elements of the lesser offense are a subset of the elements of the charged offense, thereby putting the accused on notice to defend against the lesser offense in addition to the offense specifically charged. A lesser offense may be “necessarily included” when:

(a) All of the elements of the lesser offense are included in the greater offense, and the common elements are identical (for example, larceny as a lesser included offense of robbery);

(b) All of the elements of the lesser offense are included in the greater offense, but one or more elements is a subset by being legally less serious (for example, housebreaking as a lesser included offense of burglary); or

(c) All of the elements of the lesser offense are “included and necessary” parts of the greater offense, but the mental element is a subset by being legally less serious (for example, wrongful appropriation as a lesser included offense of larceny).

(2)Sua sponte duty.A military judge must instruct panel members on lesser included offenses reasonably raised by the evidence.

(3)Multiple lesser included offenses.When the offense charged is a compound offensecomprising two or more included offenses, an accused may be found guilty of any or all of the offenses included in the offense charged. For example, robbery includes both larceny and assault. Therefore, in a proper case, a court-martial may find an accused not guilty of robbery, but guilty of wrongful appropriation and assault.

(4)Findings of guilty to a lesser included offense.A court-martial may find an accused not guilty of the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, if necessary, substitute language appropriate to the lesser included offense. For example, the accused is charged with murder in violation of Article 118, but found guilty of voluntary manslaughter in violation of Article 119. Such a finding may be worded as follows:

Of the Specification: Guilty, except the word “murder” substituting therefor the words “willfully and unlawfully kill,” of the excepted word, not guilty, of the substituted words, guilty.

Of the Charge: Not guilty, but guilty of a violation of Article 119.

If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a violation of the specific punitive article violated and not a violation of Article 79.

(5)Specific lesser included offenses.Specific lesser included offenses, if any, are listed for each offense in Appendix 12A, but the list is merely guidance to practitioners; is not all-inclusive; and is not binding on military courts.”

(c) Paragraph 45, Article 120—Rape and sexual assault generally, is amended by inserting new subparagraph b. immediately after subparagraph a. to read as follows:

“b.Elements.

(1)Rape involving contact between penis and vulva or anus or mouth.

(a)By unlawful force

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so with unlawful force.

(b)By force causing or likely to cause death or grievous bodily harm

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person.

(c)By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

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

(d)By first rendering that other person unconscious

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

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

(e)By administering a drug, intoxicant, or other similar substance

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so by administering to that other 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 impairing the ability of that other person to appraise or control conduct.

(2)Rape involving penetration of the vulva, anus, or mouth by any part of the body or any object.

(a)By force

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;

(ii) That the accused did so with unlawful force; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(b) By force causing or likely to cause death or grievous bodily harm

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;

(ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;

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

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(d) By first rendering that other person unconscious

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;

(ii) That the accused did so by first rendering that other person unconscious; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(e) By administering a drug, intoxicant, or other similar substance

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or by any object;

(ii) That the accused did so by administering to that other 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 impairing the ability of that other person to appraise or control conduct; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(3) Sexual assault involving contact between penis and vulva or anus or mouth.

(a) By threatening or placing that other person in fear

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so by threatening or placing that other person in fear.

(b) By causing bodily harm

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

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

(c) By fraudulent representation

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose.

(d) By false pretense

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person.

(e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth; and

(ii) That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring.

(iii) That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring.

(f) When the other person is incapable of consenting

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, between the penis and vulva or anus or mouth;

(ii) That the other person was incapable of consenting to the sexual act due to:

(A) Impairment by any drug, intoxicant or other similar substance; or

(B) A mental disease or defect, or physical disability; and

(iii) That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person.

(4) Sexual assault involving penetration of the vulva, anus, or mouth by any part of the body or any object.

(a) By threatening or placing that other person in fear

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the accused did so by threatening or placing that other person in fear; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(b) By causing bodily harm

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the accused did so by causing bodily harm to that other person; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(c) By fraudulent representation

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(d) By false pretense

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(e) Of a person who is asleep, unconscious, or otherwise unaware the act is occurring

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;

(iii) That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and

(iv) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(f) When the other person is incapable of consenting

(i) That the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva, anus, or mouth by any part of the body or by any object;

(ii) That the other person was incapable of consenting to the sexual act due to:

(A) Impairment by any drug, intoxicant or other similar substance; or

(B) A mental disease or defect, or physical disability;

(iii) That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and

(iv) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(5) Aggravated sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.

(a) By force

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so with unlawful force; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(b) By force causing or likely to cause death or grievous bodily harm

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(c) By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

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

(iii) That the accused did so with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(d) By first rendering that other person unconscious

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by first rendering that other person unconscious; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(e) By administering a drug, intoxicant, or other similar substance

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by administering to that other 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 impairing the ability of that other person to appraise or control conduct; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(6) Aggravated sexual contact involving the touching of any body part of any person.

(a) By force

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so with unlawful force; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(b) By force causing or likely to cause death or grievous bodily harm

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by using force causing or likely to cause death or grievous bodily harm to any person; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(c)By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

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

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(d)By first rendering that other person unconscious

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by first rendering that other person unconscious; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(e)By administering a drug, intoxicant, or other similar substance

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by administering to that other 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 impairing the ability of that other person to appraise or control conduct; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(7)Abusive sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.

(a)By threatening or placing that other person in fear

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by threatening or placing that other person in fear; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(b)By causing bodily harm

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by causing bodily harm to that other person; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(c)By fraudulent representation

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(d)By false pretense

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and

(iii) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(e)Of a person who is asleep, unconscious, or otherwise unaware the act is occurring

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;

(iii) That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and

(iv) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(f)When the other person is incapable of consenting

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person;

(ii) That the other person was incapable of consenting to the sexual act due to:

(A) Impairment by any drug, intoxicant or other similar substance; or

(B) A mental disease or defect, or physical disability;

(iii) That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and

(iv) That the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(8)Abusive sexual contact involving the touching of any body part of any person.

(a)By threatening or placing that other person in fear

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by threatening or placing that other person in fear; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(b)By causing bodily harm

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by causing bodily harm to that other person; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(c)By fraudulent representation

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by making a fraudulent representation that the sexual act served a professional purpose when it served no professional purpose; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(d)By false pretense

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person; and

(iii) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(e)Of a person who is asleep, unconscious, or otherwise unaware the act is occurring

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring;

(iii) That the accused knew or reasonably should have known that the other person was asleep, unconscious, or otherwise unaware that the sexual act was occurring; and

(iv) That the accused did so with intent to arouse or gratify the sexual desire of any person.

(f)When the other person is incapable of consenting

(i) That the accused committed sexual contact upon another person by touching, or causing another person to touch, any body part of any person;

(ii) That the other person was incapable of consenting to the sexual act due to:

(A) Impairment by any drug, intoxicant or other similar substance; or

(B) A mental disease or defect, or physical disability;

(iii) That the accused knew or reasonably should have known of the impairment, mental disease or defect, or physical disability of the other person; and

(iv) That the accused did so with intent to arouse or gratify the sexual desire of any person.”

(c) Paragraph 45, Article 120—Rape and sexual assault generally, is amended by inserting new subparagraph c. immediately after subparagraph b. to read as follows:

“c.Explanation.

(1) In general. Sexual offenses have been separated into three statutes: adults (120), children (120b), and other offenses (120c).

(2)Definitions.The terms are defined in Paragraph 45a(g).

(3)Victim character and privilege.See Mil. R. Evid. 412 concerning rules of evidence relating to the character of the victim of an alleged sexual offense. See Mil. R. Evid. 514 concerning rules of evidence relating to privileged communications between the victim and victim advocate.

(4)Consent as an element.Lack of consent is not an element of any offense under this paragraph unless expressly stated. Consent may be relevant for other purposes.”

(d) Paragraph 45, Article 120—Rape and sexual assault generally, is amended by inserting new subparagraph d. immediately after subparagraph c. to read as follows:

“d.Lesser included offenses.See paragraph 3 of this part and Appendix 12A.”

(e) Paragraph 45, Article 120—Rape and sexual assault generally, is amended byinserting new subparagraph e. immediately after subparagraph d. to read as follows:

“e.Maximum punishments.

(1) Rape. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.

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

(3)Aggravated sexual contact.Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(4)Abusive sexual contact.Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 7 years.”

(f) Paragraph 45, Article 120—Rape and sexual assault generally, is amended by inserting new subparagraph f. immediately after subparagraph e. to read as follows:

“f.Sample specifications.

(1)Rape involving contact between penis and vulva or anus or mouth.

(a)By force.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon ____________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _________'s penis, by using unlawful force.

(b)By force causing or likely to cause death or grievous bodily harm.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon ____________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _______'s penis, by using force likely to cause death or grievous bodily harm to _________, to wit: _____________.

(c)By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon __________ by causing penetration of _________'s (vulva) (anus) (mouth) with _______'s penis, by (threatening ________) (placing _______ in fear) that _____________ would be subjected to (death) (grievous bodily harm) (kidnapping).

(d)By first rendering that other person unconscious.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon __________ by causing penetration of __________'s (vulva) (anus) (mouth) with ________'s penis, by first rendering __________ unconscious by __________________.

(e)By administering a drug, intoxicant, or other similar substance.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon ____________ by causing penetration of ___________'s (vulva) (anus) (mouth) with _________'s penis, by administering to ____________ (by force) (by threat of force) (without the knowledge or permission of ___________) a (drug) (intoxicant) (list other similar substance), to wit: ________, thereby substantially impairing the ability of ___________ to appraise or control his/her conduct.

(2)Rape involving penetration of genital opening by any part of the body or any object.

(a)By force.In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object) by using unlawful force, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.

(b)By force causing or likely to cause death or grievous bodily injury.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of __________ with (list body part or object) by using force likely to cause death or grievous bodily harm to ________, to wit: _________________, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.

(c)By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping.In that (personal jurisdiction data), did (at/on board location), on or about ___ 20__, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of __________ with (list body part or object) by (threatening ______) (placing ______ in fear) that __________ would be subjected to (death) (grievous bodily harm) (kidnapping), with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.

(d)By first rendering that other person unconscious.In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon ________, by penetrating the (vulva) (anus) (mouth) of ________ with (list body part or object) by first rendering ________ unconscious, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.

(e)By administering a drug, intoxicant, or other similar substance.In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon _________, by penetrating the (vulva) (anus) (mouth) of ____________ with (list body part or object) by administering to ____________ (by force) (by threat of force) (without the knowledge or permission of ___________) a (drug) (intoxicant) (list other similar substance), to wit: ________, thereby substantially impairing the ability of ___________ to appraise or control his/her conduct, with an intent to (abuse) (humiliate) (harass) (degrade) (arouse/gratify the sexual desire of) ____________.

(3)Sexual assault involving contact between penis and vulva.

(a)By threatening or placing that other person in fear.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis, by (threatening _________) (placing _________ in fear).

(b)By causing bodily harm.In that (personal jurisdiction data), did (at/on board location), on or about ____ 20__, commit a sexual act upon _______, by causing penetration of __________'s (vulva) (anus) (mouth) with _______'s penis by causing bodily harm to _________, to wit: _________.

(c)By fraudulent representation.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon __________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis by making a fraudulent representation that the sexual act served a professional purpose, to wit: __________.

(d)By false pretense.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon __________, by causing penetration of _________'s (vulva) (anus) (mouth) with _________'s penis by inducing a belief by (artifice) (pretense) (concealment) that the said accused was another person.

(e)Of a person who is asleep, unconscious, or otherwise unaware the act is occurring.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _________, by causing penetration of _________'s (vulva) (anus) (mouth) with ________'s penis when he/she knew or reasonably should have known that ________ was (asleep) (unconscious) (unaware the sexual act was occurring due to _________).

(f)When the other person is incapable of consenting.In that (personal jurisdiction data), did (at/on board location), on or about _____ 20__, commit a sexual act upon _________, by causing penetration of ___________'s (vulva) (anus) (mouth) with _______'s penis, when _________ was incapable of consenting to the sexual act because he/she [was impaired by (a drug, to wit: ______) (an intoxicant, to wit: __________) ()] [had a (mental disease, to wit: ________) (mental defect, to wit: _________) (physical disability, to wit: _________)], a condition that was known or reasonably should have been known by the said accused.

(4)Sexual assault involving penetration of vulva or anus or mouth by any part