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45780 Federal Register / Vol. 71, No.

154 / Thursday, August 10, 2006 / Notices

the Juvenile Justice and Delinquency presented will not repeat previously Operating Procedures of the JSC, the
Prevention Act of 2002, 42 U.S.C. 5601, submitted statements. Written questions committee also invites members of the
et seq. Documents such as meeting and comments from the public may be public to suggest changes to the Manual
announcements, agendas, minutes, and invited at this meeting. for Courts-Martial in accordance with
interim and final reports will be Dated: August 7, 2006. the described format.
available on the Council’s Web page at Michael Costigan, DATES: Comments on the proposed
http://www.JuvenileCouncil.gov. (You Chief of Staff, Office of Juvenile Justice and changes must be received no later than
may also verify the status of the meeting Delinquency Prevention. October 1, 2006 to be assured
at that Web address.) [FR Doc. E6–13104 Filed 8–9–06; 8:45 am] consideration by the JSC. A public
Although designated agency meeting will be held on September 18,
BILLING CODE 4410–18–P
representatives may attend, the Council 2006 at 11:00 a.m. in the 14th Floor
membership is composed of the Conference Room, 1777 N. Kent St.,
Attorney General (Chair), the Secretary Rosslyn, VA 22209–2194.
of Health and Human Services, the DEPARTMENT OF DEFENSE
ADDRESSES: Comments on the proposed
Secretary of Labor, the Secretary of Office of the Secretary changes should be sent to Lieutenant
Education, the Secretary of Housing and Colonel L. Peter Yob, Office of The
Urban Development, the Administrator [DOD–2006–OS–0177]
Judge Advocate General, Criminal Law
of the Office of Juvenile Justice and Division, 1777 N. Kent St., Rosslyn, VA
Delinquency Prevention (Vice Chair), Manual for Courts-Martial; Proposed
Amendments 22209–2194.
the Director of the Office of National
FOR FURTHER INFORMATION CONTACT:
Drug Control Policy, the Chief Executive AGENCY: Joint Service Committee on Lieutenant Colonel L. Peter Yob,
Officer of the Corporation for National Military Justice (JSC), DoD. Executive Secretary, Joint Service
and Community Service, and the ACTION: Notice of Proposed Committee on Military Justice, Office of
Assistant Secretary for Homeland Amendments to the Manual for Courts- the Judge Advocate General, Office of
Security, Immigrations and Customs Martial, United States (2005 ed.) and The Judge Advocate General, Criminal
Enforcement. Nine additional members Notice of Public Meeting. Law Division, 1777 N. Kent St., Rosslyn,
are appointed by the Speaker of the
SUMMARY: The Department of Defense is VA 22209–2194, (703) 588–6744, e-mail
House of Representatives, the Senate
considering recommending changes to Louis.Yob@hqda.army.mil.
Majority Leader, and the President of
the Manual for Courts-Martial, United SUPPLEMENTARY INFORMATION: The
the United States.
States (2005 ed.) (MCM). The proposed proposed amendments to the MCM are
Meeting Agenda changes constitute the 2005 annual as follows (material in bold and/or
The agenda for this meeting will review (delayed) required by the MCM underlined is new):
include: (a) discussion of research and DoD Directive 5500.17, ‘‘Role and Part II of the Manual for Courts-
concerning juveniles and youth who are Responsibilities of the Joint Service Martial, United States, is amended as
disadvantaged or at-risk; (b) discussion Committee (JSC) on Military Justice,’’ follows:
of opportunities to leverage resources May 3, 2003. The proposed changes (a) RCM 916(b) is amended to read:
and coordinate research; (c) legislative, concern the rules of procedure and (b) Burden of proof.
evidence and the punitive articles (1) General rule. Except as listed
program and agency updates; and (d)
applicable in trials by courts-martial. below in paragraphs (2), (3), and (4), the
other business and announcements.
These proposed changes have not been prosecution shall have the burden of
Registration coordinated within the Department of proving beyond a reasonable doubt that
For security purposes, members of the Defense under DoD Directive 5500.1, the defense did not exist.
public who wish to attend the meeting ‘‘Preparation and Processing of (2) Lack of mental responsibility. The
must pre-register online at http:// Legislation, Executive Orders, accused has the burden of proving the
www.juvenilecouncil.gov/ or by fax to: Proclamations, and Reports and defense of lack of mental responsibility
703–738–9149 [Daryel Dunston at 703– Comments Thereon,’’ May 21, 1964, and by clear and convincing evidence.
do not constitute the official position of (3) Mistake of fact as to age. In the
738–9175 or e-mail,
the Department of Defense, the Military defense of mistake of fact as to age as
ddunston@edjassociates.com for
Departments, or any other Government described in Part IV, para. 45a(o)(2) in
questions], no later than Wednesday,
agency. a prosecution of a sexual offense with a
August 30, 2006. [Note: these are not
This notice also sets forth the date, child under Article 120, the accused has
toll-free telephone numbers.] Additional
time and location for the public meeting the burden of proving mistake of fact as
identification documents may be
of the JSC to discuss the proposed to age by a preponderance of the
required. Space is limited.
changes. evidence. After the defense meets its
Note: Photo identification will be required This notice is provided in accordance burden, the prosecution shall have the
for admission to the meeting. burden of proving beyond a reasonable
with DoD Directive 5500.17, ‘‘Role and
Responsibilities of the Joint Service doubt that the defense did not exist.
Written Comments (4) Mistake of fact as to consent. In
Committee (JSC) on Military Justice,’’
Interested parties may submit written May 3, 2003. This notice is intended the defense of mistake of fact as to
comments by Wednesday, August 30, only to improve the internal consent in Article 120(a), rape, Article
2006, to Robin Delany-Shabazz, management of the Federal Government. 120(c), aggravated sexual assault,
Designated Federal Official for the It is not intended to create any right or Article 120(e), aggravated sexual
Coordinating Council on Juvenile benefit, substantive or procedural, contact, and Article 120(h), abusive
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Justice and Delinquency Prevention, at enforceable at law by any party against sexual contact, the accused has the
Robin.Delany-Shabazz@usdoj.gov. The the United States, its agencies, its burden of proving mistake of fact as to
Coordinating Council on Juvenile officers, or any person. consent by a preponderance of the
Justice and Delinquency Prevention In accordance with paragraph III.B.4 evidence. After the defense meets its
expects that the public statements of the Internal Organization and burden, the prosecution shall have the

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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45781

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

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

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

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45784 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices

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

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

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45786 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices

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

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

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(2)(a)–(f) Rape of a Child who has not Child, Aggravated Sexual Contact, and (broken leg)(deep cut)(fractured
attained 12 years; Rape of a child who Aggravated Sexual Contact with a Child. skull)(ll).
has attained the age of 12 years but has Dishonorable discharge, forfeiture of all (c) Rape by using threats or placing in
not attained the age of 16 years. Article pay and allowances, and confinement fear.
120—aggravated sexual assault of a for 20 years. In that ll (personal jurisdiction
child; aggravated sexual abuse of a (4) Abusive Sexual Contact with a data), did (at/on board—location)
child; abusive sexual contact with a Child and Indecent Liberty with a Child. (subject-matter jurisdiction data, if
child; indecent liberty with a child; Dishonorable discharge, forfeiture of all required), on or about ll 20 ll,
wrongful sexual contact. pay and allowances, and confinement cause to engage in a sexual act, to wit:
(3) Aggravated Sexual Assault. Article for 15 years. ll, by [threatening] [placing
120—wrongful sexual contact; indecent (5) Abusive Sexual Contact. (him)(her) in fear] that (he)(she) (ll)
act. Dishonorable discharge, forfeiture of all will be subjected to (death) (grievous
(4) Aggravated Sexual Assault of a pay and allowances, and confinement bodily harm) (kidnapping) by ll.
Child. Article 120—aggravated sexual for 7 years. (d) Rape by rendering another
abuse of a child; indecent liberty with (6) Indecent Act or Forcible unconscious. In that ll (personal
a child; wrongful sexual contact. Pandering. Dishonorable discharge, jurisdiction data), did (at/on board—
(5)(a) Aggravated Sexual Contact by forfeiture of all pay and allowances, and location) (subject-matter jurisdiction
force. Article 120—indecent act; confinement for 5 years. data, if required), on or about ll 20
wrongful sexual contact. (7) Wrongful Sexual Contact or ll, cause ll to engage in a sexual
(5)(b) Aggravated Sexual Contact by Indecent Exposure. Dishonorable act, to wit: ll, by rendering (him)(her)
causing grievous bodily harm. Article discharge, forfeiture of all pay and unconscious.
120—abusive sexual contact by causing allowances, and confinement for 1 year. (e) Rape by administration of drug,
bodily harm; indecent act; wrongful g. Sample specifications. intoxicant, or other similar substance. In
sexual contact. (1) Rape. that ll (personal jurisdiction data),
(5)(c) Aggravated Sexual Contact by (a) Rape by using force. did (at/on board—location) (subject-
using threats or placing in fear. Article (i) Rape by use or display of matter jurisdiction data, if required), on
120—abusive sexual contact by using dangerous weapon or object. or about ll 20 ll, cause ll to
threats or placing in fear; indecent act; In that ll (personal jurisdiction engage in a sexual act, to wit: ll, by
wrongful sexual contact. data), did (at/on board—location) administering to (him)(her) a drug,
(5)(d) Aggravated Sexual Contact by (subject-matter jurisdiction data, if intoxicant, or other similar substance,
rendering another unconscious. Article required), on or about ll 20 ll, (by force) (by threat of force) (without
120 abusive sexual contact upon a cause ll to engage in a sexual act, to (his)(her) knowledge or permission),
person substantially incapacitated; wit: ll, by (using a dangerous weapon and thereby substantially impaired
indecent act; wrongful sexual contact. or object, to wit: ll against (him)(her)) (his)(her) ability to [(appraise)
(5)(e) Aggravated Sexual Contact by (displaying a dangerous weapon or (control)][(his)(her)] conduct.
administration of drug, intoxicant, or object, to wit: ll to (him)(her)). (2) Rape of a child.
other similar substance. Article 120 (ii) Rape by suggestion of possession (a) Rape of a child who has not
abusive sexual contact upon a person of dangerous weapon or object. attained the age of 12 years. In that ll
substantially incapacitated; indecent In that ll (personal jurisdiction (personal jurisdiction data), did (at/on
act; wrongful sexual contact. data), did (at/on board—location) board—location) (subject-matter
(6) Aggravated Sexual Abuse of a (subject-matter jurisdiction data, if jurisdiction data, if required), on or
Child. Article 120—aggravated sexual required), on or about ll 20 ll, about ll 20 ll, engage in a sexual
contact with a child; aggravated sexual cause ll to engage in a sexual act, to act, to wit: ll with ll, a child who
abuse of a child; indecent liberty with wit: ll, by the suggestion of had not attained the age of 12 years.
a child; wrongful sexual contact. possession of a dangerous weapon or an (b) Rape of a child who has attained
(7) Aggravated Sexual Contact with a object that was used in a manner to the age of 12 years but has not attained
Child. Article 120—abusive sexual cause (him)(her) to believe it was a the age of 16 years by using force.
contact with a child; indecent liberty dangerous weapon or object. (i) Rape of a child who has attained
with a child; wrongful sexual contact. (iii) Rape by using physical violence, the age of 12 years but has not attained
(8) Abusive Sexual Contact. Article strength, power, or restraint to any the age of 16 years by use or display of
120—wrongful sexual contact; indecent person. dangerous weapon or object. In that
act. In that ll (personal jurisdiction ll (personal jurisdiction data), did (at/
(9) Abusive Sexual Contact with a data), did (at/on board—location) on board—location) (subject-matter
Child. Article 120—indecent liberty (subject-matter jurisdiction data, if jurisdiction data, if required), on or
with a child; wrongful sexual contact. required), on or about ll 20 ll, about ll 20 ll, engage in a sexual
(10) Indecent Liberty with a Child. cause ll to engage in a sexual act, to act, to wit: ll, with ll, a child who
Article 120—wrongful sexual contact. wit:ll, by using (physical violence) had attained the age of 12 years, but had
f. Maximum punishment. (strength) (power) (restraint applied to not attained the age of 16 years, by
(1) Rape and Rape of a Child. Death ll), sufficient that (he)(she) could not (using a dangerous weapon or object, to
or such other punishment as a court avoid or escape the sexual conduct. wit: ll against (him)(her)) (displaying
martial may direct. (b) Rape by causing grievous bodily a dangerous weapon or object, to wit:
(2) Aggravated Sexual Assault. harm. ll to (him)(her)).
Dishonorable discharge, forfeiture of all In that ll (personal jurisdiction (ii) Rape of a child who has attained
pay and allowances, and confinement data), did (at/on board—location) the age of 12 years but has not attained
rwilkins on PROD1PC61 with NOTICES

for 30 years. (subject-matter jurisdiction data, if the age of 16 years by suggestion of


(3) Aggravated Sexual Assault of a required), on or about ll 20 ll, possession of dangerous weapon or
Child who has attained the age of 12 cause ll to engage in a sexual act, to object. In that ll (personal
years but has not attained the age of 16 wit: ll, by causing grievous bodily jurisdiction data), did (at/on board—
years, Aggravated Sexual Abuse of a harm upon (him)(her)(ll), to wit: a location) (subject-matter jurisdiction

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data, if required), on or about ll 20 substance. In that ll (personal jurisdiction data), did (at/on board—
ll, engage in a sexual act, to wit: ll, jurisdiction data), did (at/on board— location) (subject-matter jurisdiction
with ll, a child who had attained the location) (subject-matter jurisdiction data, if required), on or about ll 20
age of 12 years, but had not attained the data, if required), on or about ll 20 ll, [(engage in sexual contact, to wit:
age of 16 years, by the suggestion of ll, engage in a sexual act, to wit: ll, ll with ll) (cause ll to engage in
possession of a dangerous weapon or an with ll, a child who had attained the sexual contact, to wit: ll, with ll)
object that was used in a manner to age of 12 years, but had not attained the (cause sexual contact with or by ll, to
cause (him)(her) ll to believe it was age of 16 years, by administering to wit: ll)] by (using a dangerous
a dangerous weapon or object. (him)(her) a drug, intoxicant, or other weapon or object, to wit: ll against
(iii) Rape of a child who has attained similar substance (by force) (by threat of (him)(her)) (displaying a dangerous
the age of 12 years but has not attained force) (without (his)(her) knowledge or weapon or object, to wit: ll to
the age of 16 years by using physical permission), and thereby substantially (him)(her)).
violence, strength, power, or restraint to impaired (his)(her) ability to [(appraise) (ii) Aggravated sexual contact by
any person. In that ll (personal (control)][(his)(her)] conduct. suggestion of possession of dangerous
jurisdiction data), did (at/on board— (3) Aggravated sexual assault. weapon or object.
location) (subject-matter jurisdiction (a) Aggravated sexual assault by using In that ll (personal jurisdiction
data, if required), on or about ll 20 threats or placing in fear. In that ll data), did (at/on board—location)
ll, engage in a sexual act, to wit: ll (personal jurisdiction data), did (at/on (subject-matter jurisdiction data, if
with ll, a child who had attained the board—location) (subject-matter required), on or about ll 20 ll,
age of 12 years, but had not attained the jurisdiction data, if required), on or [(engage in sexual contact, to wit: ll
age of 16 years, by using (physical about ll 20 ll, cause to engage in with ll) (cause ll to engage in
violence) (strength) (power) (restraint a sexual act, to wit: ll, by sexual contact, to wit: ll, with ll)
applied to ll) sufficient that (he)(she) [threatening][placing(him)(her) in fear (cause sexual contact with or by ll, to
could not avoid or escape the sexual of] [(physical injury to ll) (injury to wit: ll)] by the suggestion of
conduct. ll’s property) (accusation of crime) possession of a dangerous weapon or an
(c) Rape of a child who has attained (exposition of secret) (abuse of military object that was used in a manner to
the age of 12 years but has not attained position) (ll)]. cause (him)(her) (ll) to believe it was
the age of 16 years by causing grievous (b) Aggravated sexual assault by a dangerous weapon or object.
bodily harm. In that ll (personal causing bodily harm. In that ll (iii) Aggravated sexual contact by
jurisdiction data), did (at/on board— (personal jurisdiction data), did (at/on using physical violence, strength, power,
location) (subject-matter jurisdiction board—location) (subject-matter or restraint to any person.
data, if required), on or about ll 20 jurisdiction data, if required), on or In that ll (personal jurisdiction
ll, engage in a sexual act, to wit: ll, about ll 20 ll, cause to engage in data), did (at/on board—location)
with ll, a child who had attained the a sexual act, to wit: ll, by causing (subject-matter jurisdiction data, if
age of 12 years, but had not attained the bodily harm upon (him)(her) (ll), to required), on or about ll 20 ll,
age of 16 years, by causing grievous wit: ll. [(engage in sexual contact, to wit: ll
bodily harm upon (him)(her) (ll), to (c) Aggravated sexual assault upon a with ll) (cause to engage in sexual
wit: a (broken leg) (deep cut) (fractured person substantially incapacitated or contact, to wit: ll, with ll) (cause
skull) (ll). substantially incapable of appraising sexual contact with or by ll, to wit:
(d) Rape of a child who has attained the act, declining participation, or ll)] by using (physical violence)
the age of 12 years but has not attained communicating unwillingness. In that (strength) (power) (restraint applied to
the age of 16 years by using threats or ll (personal jurisdiction data), did (at/ ll), sufficient that (he)(she) (ll)
placing in fear. In that ll (personal on board—location) (subject-matter could not avoid or escape the sexual
jurisdiction data), did (at/on board— jurisdiction data, if required), on or conduct.
location) (subject-matter jurisdiction about ll 20 ll, engage in a sexual (b) Aggravated sexual contact by
data, if required), on or about ll 20 act, to wit: ll with ll, who was causing grievous bodily harm.
ll, engage in a sexual act, to wit: ll, (substantially incapacitated) In that ll (personal jurisdiction
with ll, a child who had attained the [substantially incapable of (appraising data), did (at/on board—location)
age of 12 years, but had not attained the the nature of the sexual act)(declining (subject-matter jurisdiction data, if
age of 16 years, by [threatening] [placing participation in the sexual act) required), on or about ll 20 ll,
(him)(her) in fear] that (he)(she) (ll) (communicating unwillingness to [(engage in sexual contact, to wit: ll
would be subjected to (death) (grievous engage in the sexual act)]. with ll) (cause ll to engage in
bodily harm) (kidnapping) by ll. (4) Aggravated sexual assault of a sexual contact, to wit: ll, with ll)
(e) Rape of a child who has attained child who has attained the age of 12 (cause sexual contact with or by ll, to
the age of 12 years but has not attained years but has not attained the age of 16 wit: ll)] by causing grievous bodily
the age of 16 years by rendering that years. In that ll (personal jurisdiction harm upon (him)(her) (ll), to wit: a
child unconscious. In that ll data), did (at/on board—location) (broken leg) (deep cut) (fractured skull)
(personal jurisdiction data), did (at/on (subject-matter jurisdiction data, if (ll).
board—location) (subject-matter required), on or about ll 20 ll, (c) Aggravated sexual contact by
jurisdiction data, if required), on or engage in a sexual act, to wit: ll with using threats or placing in fear.
about ll 20 ll, engage in a sexual ll, who had attained the age of 12 In that ll (personal jurisdiction
act, to wit: ll, with ll, a child who years, but had not attained the age of 16 data), did (at/on board—location)
had attained the age of 12 years, but had years. (subject-matter jurisdiction data, if
not attained the age of 16 years, by (5) Aggravated sexual contact. required), on or about ll 20 ll,
rwilkins on PROD1PC61 with NOTICES

rendering (him)(her) unconscious. (a) Aggravated sexual contact by [(engage in sexual contact, to wit: ll
(f) Rape of a child who has attained using force. with ll) (cause ll to engage in
the age of 12 years but has not attained (i) Aggravated sexual contact by use sexual contact, to wit: ll, with ll)
the age of 16 years by administration of or display of dangerous weapon or (cause sexual contact with or by ll, to
drug, intoxicant, or other similar object. In that ll (personal wit: ll)] by [(threatening (him)(her)

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45790 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices

(ll)] [(placing(him)(her) (ll) in fear] years by use or display of dangerous ll) sufficient that (he) (she) (ll)
that (he)(she) (ll) will be subjected to weapon or object. could not avoid or escape the sexual
(death) (grievous bodily harm) In that ll (personal jurisdiction conduct.
(kidnapping) by ll. data), did (at/on board—location) (c) Aggravated sexual contact with a
(d) Aggravated sexual contact by (subject-matter jurisdiction data, if child who has attained the age of 12
rendering another unconscious. required), on or about ll 20 ll, years but has not attained the age of 16
In that ll (personal jurisdiction [(engage in sexual contact, to wit: ll years by causing grievous bodily harm.
data), did (at/on board—location) with ll, a child who had attained the In that ll (personal jurisdiction
(subject-matter jurisdiction data, if age of 12 years, but had not attained the data), did (at/on board—location)
required), on or about ll 20 ll, age of 16 years) (cause ll to engage in (subject-matter jurisdiction data, if
[(engage in sexual contact, to wit: sexual contact, to wit: ll, with ll, required), on or about ll 20ll,
llwith ll) (cause ll to engage in a child who had attained the age of 12 [(engage in sexual contact, to wit: ll
sexual contact, to wit: ll, with ll) years, but had not attained the age of 16 with ll, a child who had not attained
(cause sexual contact with or by ll, to years) (cause sexual contact with or by the age of 12 years, but had not attained
wit: ll)] by rendering (him)(her) ll, a child who had attained the age the age of 16 years) (cause ll to
(ll) unconscious. of 12 years, but had not attained the age engage in sexual contact, to wit: ll,
(e) Aggravated sexual contact by of 16 years, to wit: ll)] by (using a with ll, a child who had not attained
administration of drug, intoxicant, or dangerous weapon or object, to wit: ll the age of 12 years, but had not attained
other similar substance. against (him)(her) (ll)) (displaying a the age of 16 years) (cause sexual
In that ll (personal jurisdiction dangerous weapon or object, to wit: ll contact with or by ll, a child who had
data), did (at/on board—location) to (him)(her) (ll)). not attained the age of 12 years, but had
(subject-matter jurisdiction data, if (ii) Aggravated sexual contact with a not attained the age of 16 years, to wit:
required), on or about ll 20 ll, child who has attained the age of 12 ll)] by causing grievous bodily harm
[(engage in sexual contact, to wit: ll years but has not attained the age of 16 upon (him) (her) (ll), to wit: a (broken
with ll) (cause ll to engage in years by suggestion of possession of
leg) (deep cut) (fractured skull) (ll).
sexual contact, to wit: ll, with ll) dangerous weapon or object.
(d) Aggravated sexual contact with a
(cause sexual contact with or by ll, to In that ll (personal jurisdiction
child who has attained the age of 12
wit: ll)] by administering to data), did (at/on board—location)
years but has not attained the age of 16
(him)(her) (ll) a drug, intoxicant, or (subject-matter jurisdiction data, if
required), on or about ll 20ll, years by using threats or placing in fear.
other similar substance, (by force) (by In that ll (personal jurisdiction
threat of force) (without (his)(her) (ll) [(engage in sexual contact, to wit: ll
with ll, a child who had attained the data), did (at/on board—location)
knowledge or permission), and thereby (subject-matter jurisdiction data, if
substantially impaired (his)(her) (ll) age of 12 years, but had not attained the
age of 16 years) (cause ll to engage in required), on or about ll 20ll,
ability to [(appraise) (control)] [(his) [(engage in sexual contact, to wit: ll
(her)] conduct. sexual contact, to wit: ll, with ll,
a child who had attained the age of 12 with ll, a child who had not attained
(6) Aggravated sexual abuse of a
years, but had not attained the age of 16 the age of 12 years, but had not attained
child.
In that ll (personal jurisdiction years) (cause sexual contact with or by the age of 16 years) (cause ll to
data), did (at/on board—location) ll, a child who had attained the age engage in sexual contact, to wit: ll,
(subject-matter jurisdiction data, if of 12 years, but had not attained the age with ll, a child who had not attained
required), on or about ll 20 ll, of 16 years, to wit: ll)] by the the age of 12 years, but had not attained
engage in a lewd act, to wit: ll with suggestion of possession of a dangerous the age of 16 years) (cause sexual
ll, a child who had not attained the weapon or an object that was used in a contact with or by ll, a child who had
age of 16 years. manner to cause (him) (her) (ll) to not attained the age of 12 years, but had
(7) Aggravated sexual contact with a believe it was a dangerous weapon or not attained the age of 16 years, to wit:
child. object. ll)] by [threatening] [placing (him)
(a) Aggravated sexual contact with a (iii) Aggravated sexual contact with a (her) (ll) in fear] that (he) (she) (ll)
child who has not attained the age of 12 child who has attained the age of 12 will be subjected to (death) (grievous
years. years but has not attained the age of 16 bodily harm) (kidnapping) by ll.
In that ll (personal jurisdiction years by using physical violence, (e) Aggravated sexual contact with a
data), did (at/on board—location) strength, power, or restraint to any child who has attained the age of 12
(subject-matter jurisdiction data, if person. years but has not attained the age of 16
required), on or about ll 20 ll, In that ll (personal jurisdiction years by rendering that child or another
[(engage in sexual contact, to wit: ll data), did (at/on board—location) unconscious.
with ll, a child who had not attained (subject-matter jurisdiction data, if In that ll (personal jurisdiction
the age of 12 years) (cause ll to required), on or about ll 20ll, data), did (at/on board—location)
engage in sexual contact, to wit: ll, [(engage in sexual contact, to wit: ll (subject-matter jurisdiction data, if
with ll, a child who had not attained with ll, a child who had not attained required), on or about ll 20ll,
the age of 12 years) (cause sexual the age of 12 years, but had not attained [(engage in sexual contact, to wit: ll
contact with or by ll, a child who had the age of 16 years) (cause ll to with ll, a child who had not attained
not attained the age of 12 years, to wit: engage in sexual contact, to wit: ll, the age of 12 years, but had not attained
ll)]. with ll, a child who had not attained the age of 16 years) (cause ll to
(b) Aggravated sexual contact with a the age of 12 years, but had not attained engage in sexual contact, to wit: ll,
child who has attained the age of 12 the age of 16 years) (cause sexual with ll, a child who had not attained
rwilkins on PROD1PC61 with NOTICES

years but has not attained the age of 16 contact with or by ll, a child who had the age of 12 years, but had not attained
years by using force. not attained the age of 12 years, but had the age of 16 years) (cause sexual
(i) Aggravated sexual contact with a not attained the age of 16 years, to wit: contact with or by ll, a child who had
child who has attained the age of 12 ll)] by using (physical violence) not attained the age of 12 years, but had
years but has not attained the age of 16 (strength) (power) (restraint applied to not attained the age of 16 years, to wit:

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ll)] by rendering (him) (her) (ll) required), on or about ll 20ll, authorization and without the
unconscious. [(engage in sexual contact, to wit: ll permission of ll.
(f) Aggravated sexual contact with a with ll) (cause ll to engage in (14) Indecent exposure.
child who has attained the age of 12 sexual contact, to wit: ll, with ll) In that ll (personal jurisdiction
years but has not attained the age of 16 (cause sexual contact with or by ll, to data), did (at/on board—location),
years by administration of drug, wit: ll)] while (he) (she) (ll) was (subject-matter jurisdiction data, if
intoxicant, or other similar substance. [substantially incapacitated] required), on or about ll 20ll,
In that ll (personal jurisdiction [substantially incapable of (appraising intentionally (expose in an indecent
data), did (at/on board—location) the nature of the sexual contact) manner (his) (her) (ll) (ll) while (at
(subject-matter jurisdiction data, if (declining participation in the sexual the barracks window) (in a public place)
required), on or about ll 20ll, contact) (communicating unwillingness (ll).
[(engage in sexual contact, to wit: ll to engage in the sexual contact)]. (e) Paragraph 50, Art. 124, Maiming,
with ll, a child who had not attained (9) Abusive sexual contact with a paragraph (e) is amended to read:
the age of 12 years but had not attained child. e. Maximum Punishment.
the age of 16 years) (cause ll to In that ll (personal jurisdiction Dishonorable discharge, forfeiture of all
engage in sexual contact, to wit: ll, data), did (at/on board—location) pay and allowances, and confinement
with ll, a child who had not attained (subject-matter jurisdiction data, if for 20 years.
the age of 12 years but had not attained required), on or about ll 20ll, (f) Paragraph 51, Article 125, Sodomy,
the age of 16 years) (cause sexual [(engage in sexual contact, to wit: ll paragraph (d) is amended by deleting
contact with or by ll, a child who had with ll, a child who had attained the the following lesser included offenses
not attained the age of 12 years but had age of 12 years but had not attained the under paragraph (d)(1)(b); (d)(2)(c); and
not attained the age of 16 years, to wit: age of 16 years) (cause ll to engage in (d)(3)(a):
ll)] by administering to (him) (her) sexual contact, to wit: ll, with ll, (d)(1)(b) Article 134 indecent acts
(ll) a drug, intoxicant, or other a child who had attained the age of 12 with a child under 16.
similar substance (by force) (by threat of years but had not attained the age of 16 (d)(2)(c) Article 134 indecent assault.
force) (without (his) (her) (ll) years) (cause sexual contact with or by (d)(3)(a) Article 134 indecent acts
knowledge or permission), and thereby ll, a child who had attained the age with another.
substantially impaired (his) (her) (ll) of 12 years but had not attained the age (g) Paragraph 51, Article 125,
ability to [(appraise) (control)] [(his) of 16 years, to wit: ll)]. paragraph (d) is amended by adding at
(her)] conduct. (10) Indecent liberties with a child. the end of paragraph d:
(8) Abusive sexual contact. In that ll (personal jurisdiction [Note: Consider lesser included offenses
(a) Abusive sexual contact by using data), did, (at/on board—location) under Art. 120 depending on the factual
threats or placing in fear. (subject-matter jurisdiction data, if
In that ll (personal jurisdiction circumstances in each case.]
required), on or about ll 20ll, (take
data), did (at/on board—location) indecent liberties) (engage in indecent (h) Paragraph 54, Art. 128, Assault,
(subject-matter jurisdiction data, if conduct) in the physical presence of paragraph (b)(4)(a) is amended to read:
required), on or about ll 20ll, ll, a (female) (male) under 16 years of (4) Aggravated Assault.
[(engage in sexual contact, to wit: ll age, by (communicating the words: to (a) Assault with a dangerous weapon
with ll) (cause ll to engage in wit: ll) (exposing one’s private parts, or other means of force likely to produce
sexual contact, to wit: ll, with ll) to wit: ll) (ll), with the intent to death or grievous bodily harm.
(cause sexual contact with or by ll, to [(arouse) (appeal to) (gratify) the (sexual (i) That the accused attempted to do,
wit: ll)] by [(threatening) (placing desire) of the ll (or ll)] [(abuse) offered to do, or did bodily harm to a
(him) (her) (ll) in fear of)] [(physical (humiliate) (degrade) ll]. certain person;
injury to ll) (injury to ll’s property) (11) Indecent act. (ii) That the accused did so with a
(accusation of crime) (exposition of In that ll (personal jurisdiction certain weapon, means, or force;
secret) (abuse of military position) data), did (at/on board—location) (iii) That the attempt, offer, or bodily
(ll)]. (subject-matter jurisdiction data, if harm was done with unlawful force or
(b) Abusive sexual contact by causing required), on or about ll 20ll, violence; and
bodily harm. wrongfully commit indecent conduct, to (iv) That the weapon, means, or force
In that ll (personal jurisdiction wit ll. was used in a manner likely to produce
data), did (at/on board—location) (12) Forcible pandering. death or grievous bodily harm.
(subject-matter jurisdiction data, if In that ll (personal jurisdiction (Note: Add any of the following as
required), on or about ll 20ll, data), did (at/on board—location), applicable.)
[(engage in sexual contact, to wit: ll (subject-matter jurisdiction data, if (v) That the weapon was a loaded
with ll) (cause ll to engage in required), on or about ll 20ll, firearm.
sexual contact, to wit: ll, with ll) compel ll to engage in [(a sexual act) (vi) That the person was a child under
(cause sexual contact with or by ll, to (sexual contact) (lewd act), to wit: ll] the age of 16 years.
wit: ll)] by causing bodily harm upon for the purpose of receiving money or (i) Paragraph 54, Art. 128, Assault,
(him) (her) (ll), to wit: (ll). other compensation with ll (a) paragraph (b)(4)(b) is amended to read:
(c) Abusive sexual contact by person(s) to be directed to (him) (her) by (4) Aggravated Assault.
engaging in a sexual act with a person the said ll. (b) Assault in which grievous bodily
substantially incapacitated or (13) Wrongful sexual contact. harm is intentionally inflicted.
substantially incapable of appraising In that ll (personal jurisdiction (i) That the accused assaulted a
the act, declining participation, or data), did (at/on board—location), certain person;
rwilkins on PROD1PC61 with NOTICES

substantially incapable of (subject-matter jurisdiction data, if (ii) That grievous bodily harm was
communicating unwillingness. required), on or about ll 20ll, thereby inflicted upon such person;
In that ll (personal jurisdiction engage in sexual contact with ll, to (iii) That the grievous bodily harm
data), did (at/on board—location) wit: ll, and such sexual contact was was done with unlawful force or
(subject-matter jurisdiction data, if without legal justification or lawful violence; and

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

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


negligence resulting in harm. Bad- (x) Paragraph 90, Indecent acts with other action may proceed in the same
conduct discharge, forfeiture of all pay another is deleted. manner and with the same effect as if
and allowances, and confinement for 2 (y) Paragraph 89, Indecent language, these amendments had not been
years. paragraph (c), is amended to read: prescribed.

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45794 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices

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

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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45795

Indecent Exposure.
Indecent Acts with Another.

Changes to Appendix 21, Analysis of inserting the following paragraph at the ‘‘consensual sexual offense’’,
Rules for Courts Martial end thereof : ‘‘nonconsensual sexual offenses’’;
200 Amendment. Changes to this sexual offenses specifically proscribed
(a) Amend the Analysis
paragraph adding sexual offenses other under the UCMJ, e.g., rape, aggravated
accompanying R.C.M. 916(b) by
than rape are based on subsection (d) of sexual assault, etc.; those federal sexual
inserting the following paragraph at the
section 552 of the National Defense offenses DoD is able to prosecute under
end thereof:
Authorization Act for Fiscal Year 2006, clause 3 of Article 134, U.C.M.J., e.g., 18
200 Amendment. Changes to this
Public Law 109–163, 6 January 2006, U.S.C. § 2252A (possession of child
paragraph, deleting ‘‘carnal
which supersedes the previous pornography); and state sexual offenses
knowledge’’, are based on section 552 of
paragraph 45, Rape and Carnal DoD is able to assimilate under the
the National Defense Authorization Act
Knowledge, in its entirety and replaces Federal Assimilative Crimes Act (18
for Fiscal Year 2006, Public Law 109–
paragraph 45 with Rape, sexual assault U.S.C. 13).
163, 6 January 2006, which supersedes
and other sexual misconduct. (b) Amend the analysis accompanying
the previous paragraph 45, Rape and (f) Amend the analysis accompanying
Carnal Knowledge, in its entirety and M.R.E. 503(b) by inserting the following
R.C.M. 1102(d) by inserting the paragraph at the end thereof:
replaces paragraph 45 with Rape, following paragraph at the end thereof:
sexual assault and other sexual ‘‘200 Amendment: The previous
200 Amendment. For purposes of
misconduct. subsection (2) of MRE 503(b) was
this rule, the list of appropriate
(b) Amend the Analysis renumbered subsection (3) and the new
reviewing authorities included in the
accompanying R.C.M. 916(j)(2) by subsection (2) was inserted to define the
1994 amendment includes any court
inserting the following paragraph at the term ‘‘clergyman’s assistant.’’
authorized to review cases on appeal
end thereof: under the UCMJ. (c) Amend the Analysis
200 Amendment. Changes to this accompanying M.R.E. 504 by inserting
paragraph, deleting ‘‘carnal knowledge’’ Changes to Appendix 22, Analysis of the following paragraph at the end
and consistent language, are based on the Military Rules of Evidence thereof:
section 552 of the National Defense (a) Amend the Analysis ‘‘200 Amendment: (d) Definition.
Authorization Act for Fiscal Year 2006, accompanying MRE 412, Relevance of Rule 504(d) modifies the rule and is
Public Law 109–163, 6 January 2006, alleged victim’s sexual behavior or intended to afford additional protection
which supersedes the previous sexual predisposition, by inserting the to children. Previously, the term ‘‘a
paragraph 45, Rape and Carnal following paragraph at the end thereof: child of either,’’ referenced in Rule
Knowledge, in its entirety and replaces 200 Amendment. This amendment 504(c)(2)(A), did not include a ‘‘de
paragraph 45 with Rape, sexual assault is intended to aid practitioners in facto’’ child or a child who is under the
and other sexual misconduct. applying the balancing test of MRE 412. physical custody of one of the spouses
(c) Insert a new Analysis section to Specifically, the amendment clarifies: but lacks a formal legal parent-child
accompany new subparagraph R.C.M. (1) That under MRE 412, the evidence relationship with at least one of the
916(j)(3) at the end of the analysis must be relevant for one of the purposes spouses. See U.S. v. McCollum, 58 M.J.
discussing subsection RCM 916(j) : highlighted in subdivision (b); (2) that in 323 (C.A.A.F. 2003). Prior to this
200 Amendment. This paragraph is conducting the balancing test, the amendment, an accused could not
new and is based on the mistake of fact inquiry is whether the probative value of invoke the spousal privilege to prevent
defense incorporated in section 552 of the evidence outweighs the danger of disclosure of communications regarding
the National Defense Authorization Act unfair prejudice to the victim’s privacy; crimes committed against a child with
for Fiscal Year 2006, Public Law 109– and (3) that even if the evidence is whom he or his spouse had a formal,
163, 6 January 2006, which supersedes admissible under MRE 412, it may still legal parent-child relationship; however,
the previous paragraph 45, Rape and be excluded under MRE 403. The the accused could invoke the privilege
Carnal Knowledge, in its entirety and proposed changes highlight current to prevent disclosure of
replaces paragraph 45 with Rape, practice. See U.S. v. Banker, 60 M.J. 216, communications where there was not a
sexual assault and other sexual 223 (2004) (Citing ‘‘It would be illogical formal, legal parent-child relationship.
misconduct. if the judge were to evaluate evidence This distinction between legal and ‘‘de
(d) Amend the Analysis ‘offered by the accused’ for unfair facto’’ children resulted in unwarranted
accompanying R.C.M. 920(e) by prejudice to the accused. Rather, in the discrimination among child victims and
inserting the following paragraph at the context of this rape shield statute, the ran counter to the public policy of
end thereof: prejudice in question is, in part, that to protecting children. Rule 504(d)
200 Amendment. Changes to this the privacy interests of the alleged recognizes the public policy of
paragraph, deleting ‘‘carnal knowledge’’ victim. Sanchez, 44 M.J. at 178 (‘‘[I]n protecting children by addressing
and consistent language, are based on determining admissibility there must be disparate treatment among child victims
section 552 of the National Defense a weighing of the probative value of the entrusted to another. The ‘‘marital
Authorization Act for Fiscal Year 2006, evidence against the interest of communications privilege * * * should
Public Law 109–163, 6 January 2006, shielding the victim’s privacy.’’).’’ not prevent a ‘properly outraged spouse
which supersedes the previous Moreover, the amendment clarifies with knowledge from testifying against a
paragraph 45, Rape and Carnal that MRE 412 applies in all cases perpetrator’ of child abuse within the
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Knowledge, in its entirety and replaces involving a sexual offense wherein the home regardless of whether the child is
paragraph 45 with Rape, sexual assault person against whom the evidence is part of that family.’’ U.S. v. McCollum,
and other sexual misconduct. offered can reasonably be characterized 58 M.J. 323, 342, fn.6 (C.A.A.F. 2003)
(e) Amend the Analysis as a ‘‘victim of the alleged sexual (citing U.S. v. Bahe, 128 F.3d 1440, 1446
accompanying R.C.M. 1004(c) by offense.’’ Thus, the rule applies to: (10th Cir. 1997)).

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45796 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices

Changes to Appendix 23, Analysis of is generally based on the Sexual Abuse each provision requires proof of a fact
Punitive Articles Act of 1986, 18 U.S.C. Sections 2241– which the other does not.’’ Blockburger,
(a) The Analysis accompanying 2245. The following is a list of offenses 284 U.S. at 304, 52 S.Ct. 180. Rather
Article 118, Murder, is amended by that have been replaced by this new than adopting a literal application of
inserting the following: paragraph 45: the elements test, the Court stated that
(1) Paragraph 63, 134 Assault— resolution of lesser-included claims
43. Article 118 Murder Indecent, has been replaced in its ‘‘can only be resolved by lining up
a. Text. entirety by three new offenses under elements realistically and determining
b. Elements. paragraph 45. See subsections (e) whether each element of the supposed
200 Amendment. Paragraph (4) of Aggravated Sexual Contact, (h) Abusive ’lesser’ offense is rationally derivative of
the text and elements has been Sexual Contact, and (m) Wrongful one or more elements of the other
amended for consistency with the Sexual Contact. offense—and vice versa.’’ Foster, 40 M.J.
changes to Article 118 under section (2) Paragraph 87, 134 Indecent Acts at 146. Whether an offense is a lesser-
552 of the National Defense or Liberties with a Child, has been included offense is a matter of law that
Authorization Act for Fiscal Year 2006, replaced in its entirety by three new the Court will consider de novo. United
Public Law 109–163, 6 January 2006. offenses under paragraph 45. See States v. Palagar, 56 M.J. 294, 296
See subsection (d) of Section 552. subsections (g) Aggravated Sexual (C.A.A.F. 2002).
(b) The Analysis accompanying Contact with a Child, (i) Abusive Sexual f. Maximum punishment. See 1995
Article 119, Manslaughter, is amended Contact with a Child, and (j) Indecent Amendment regarding maximum
by inserting the following: Liberty with a Child. punishment of death.
(3) Paragraph 88, Article 134 (d) The analysis accompanying
44. Article 119 Manslaughter Indecent Exposure, has been replaced in
Article 124, Maiming, is amended by
b. Elements. its entirety by a new offense under
inserting the following at the end of
200 Amendment. Paragraph (4) of paragraph 45. See subsection (n)
current analysis paragraph:
the elements has been amended for Indecent Exposure.
(4) Paragraph 90, Article 134 e. Maximum punishment. 200
consistency with the changes to Article amendment. The maximum punishment
118 under section 552 of the National Indecent Acts with Another, has been
replaced in its entirety by a new offense for the offense of maiming was
Defense Authorization Act for Fiscal increased from 7 years confinement to
Year 2006, Public Law 109–163, 6 under paragraph 45. See subsection (k)
Indecent Act. 20 years confinement, consistent with
January 2006. See subsection (d) of the federal offense of maiming, 18
Section 552. (5) Paragraph 97, Article 134
Pandering and Prostitution, has been U.S.C. 114.
(c) The Analysis accompanying
amended. The act of compelling another (e) The Analysis accompanying
Article 120, Rape, Sexual Assault, and
person to engage in an act of Article 125, Sodomy, is amended by
other Sexual Misconduct, is amended
prostitution with another person will no inserting the following:
by inserting the following:
longer be an offense under paragraph 97 d. Lesser included offenses.
45. Article 120 Rape, Sexual Assault, and has been replaced by a new offense 200 Amendment.
and other Sexual Misconduct under paragraph 45. See subsection (l), The former Paragraph 87, (1)(b),
200 Amendment. Changes to this Forcible Pandering. Article 134 Indecent Acts or Liberties
paragraph are contained in Div. A. Title c. Explanation. Subparagraph (3), with a Child has been replaced in its
V. Subtitle E, section 552(a)(1) of the definition of ‘‘indecent’’, is taken from entirety by paragraph 45.
National Defense Authorization Act for paragraphs 89.c and 90.c of the Manual The former Paragraph 63, (2)(c),
Fiscal Year 2006, Public Law 109–163, (2005 ed.) and is intended to Article 134 Assault—Indecent, has been
119 Stat. 3257 (6 January 2006), which consolidate the definitions of replaced in its entirety by paragraph 45.
supersedes the previous paragraph 45, ‘‘indecent,’’ as used in the former The former Paragraph 90(3)(a), Article
Rape and Carnal Knowledge, in its offenses under Article 134 of ‘‘Indecent 134 Indecent Acts with Another, has
entirety and replaces paragraph 45 with acts or liberties with a child,’’ ‘‘Indecent been replaced in its entirety by
Rape, sexual assault and other sexual exposure,’’ and ‘‘Indecent acts with paragraph 45.
misconduct. In accordance with section another,’’ formerly at paragraphs 87, 88, Lesser included offenses under Article
552(c) of that Act, Public Law 109 163, and 90 of the 2005 Manual, and 120 should be considered depending on
119 Stat. 3263, the amendment to the ‘‘Indecent language,’’ at paragraph 89. the factual circumstances in each cases.
Article applies only with respect to The application of this single definition (f) The analysis to Article 128,
offenses committed on or after 1 of ‘‘indecent’’ to the offenses of Assault, is amended by inserting the
October 2007. ‘‘Indecent liberty with a child,’’ following at the end of current analysis
Nothing in these amendments ‘‘Indecent act,’’ and ‘‘Indecent paragraph:
invalidates any nonjudicial punishment exposure’’ under Article 120 is e. Maximum punishment. 200
proceeding, restraint, investigation, consistent with the construction given to amendment. The maximum
referral of charges, trial in which the former Article 134 offenses in the punishments for some aggravated
arraignment occurred, or other action 2005 Manual that were consolidated assault offenses were established to
begun prior to 1 October 2007. Any such into Article 120. See e.g. United States recognize the increased severity of such
nonjudical punishment proceeding, v. Negron, 60 M.J. 136 (C.A.A.F. 2004). offenses when children are the victims.
restraint, investigation, referral of e. Additional Lesser Included These maximum punishments are
charges, trial in which arraignment Offenses. The test to determine whether consistent with the maximum
occurred, or other action may proceed an offense is factually the same as punishments of the Article 134 offense
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in the same manner and with the same another offense, and therefore lesser- of Child Endangerment, established in
effect as if these amendments had not included to that offense, is the 200.
been prescribed. ‘‘elements’’ test. United States v. Foster, (g) The Analysis accompanying
This new Article 120 consolidates 40 M.J. 140, 142 (C.M.A.1994). Under Article 134, Assault indecent, is
several sexual misconduct offenses and this test, the court considers ‘‘whether amended by inserting the following:

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63. Article 134 Assault-Indecent 97. Article 134 Pandering and publishes this notice containing
200 Amendment. This paragraph Prostitution proposed information collection
has been replaced in its entirety by 200 Amendment. This paragraph requests at the beginning of the
paragraph 45. See Article 120 (e) has been amended. The act of Departmental review of the information
Aggravated Sexual Contact, (h) Abusive compelling another person to engage in collection. Each proposed information
Sexual Contact, and (m) Wrongful an act of prostitution with another collection, grouped by office, contains
Sexual Contact. person will no longer be punished under the following: (1) Type of review
(h) The Analysis accompanying paragraph 97 and has been replaced by requested, e.g., new, revision, extension,
Article 134-Assault-with intent to a new offense under paragraph 45. See existing or reinstatement; (2) Title; (3)
commit murder, voluntary Article 120(l) Forcible Pandering. Summary of the collection; (4)
manslaughter, rape, robbery, sodomy, Dated: August 4, 2006. Description of the need for, and
arson, burglary, or housebreaking, is L.M. Bynum, proposed use of, the information; (5)
amended by inserting the following: Respondents and frequency of
OSD Federal Register Liaison Officer, DoD.
64. Article 134 Assault-With Intent to [FR Doc. 06–6817 Filed 8–9–06; 8:45 am] collection; and (6) Reporting and/or
Commit Murder, Voluntary BILLING CODE 5001–06–P
Recordkeeping burden. ED invites
Manslaughter, Rape, Robbery, Sodomy, public comment.
Arson, Burglary, or Housebreaking The Department of Education is
200 Amendment. This paragraph DEPARTMENT OF EDUCATION especially interested in public comment
has been amended for consistency with addressing the following issues: (1) Is
the changes to Article 118 under section Notice of Proposed Information this collection necessary to the proper
552 of the National Defense Collection Requests functions of the Department; (2) will
Authorization Act for Fiscal Year 2006, AGENCY: Department of Education. this information be processed and used
Public Law 109–163, 6 January 2006. ACTION: Notice of Proposed Information in a timely manner, (3) is the estimate
See subsection (d) of Section 552. Collection Requests. of burden accurate; (4) how might the
(i) The analysis to Article 134 is Department enhance the quality, utility,
amended by inserting the following: SUMMARY: The IC Clearance Official,
and clarity of the information to be
Regulatory Information Management
68a. Article 134 (Child Endangerment) collected, and (5) how might the
Services, Office of Management, invites
200 Amendment. This offense is comments on the proposed information Department minimize the burden of this
new to the Manual for Courts Martial. collection requests as required by the collection on respondents, including
Child neglect was recognized in U.S. v. Paperwork Reduction Act of 1995. through the use of information
Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It DATES: An emergency review has been technology.
is based on military custom and requested in accordance with the Act Dated: August 8, 2006.
regulation as well as a majority of state (44 U.S.C. Chapter 3507 (j)), since Angela C. Arrington,
statutes and captures the essence of public harm is reasonably likely to IC Clearance Official, Regulatory Information
child neglect, endangerment, and abuse. result if normal clearance procedures Management Services, Office of Management.
(j) The Analysis accompanying Article are followed. Approval by the Office of
134-Indecent acts with a child, is Management and Budget (OMB) has Office of Postsecondary Education
amended by inserting the following: been requested by August 17, 2006.
Type of Review: New.
87. Article 134 Indecent Acts With a ADDRESSES : Written comments
regarding the emergency review should Title: Hurricane Education Recovery
Child Awards.
be addressed to the Office of
200 Amendment. This paragraph Information and Regulatory Affairs, Abstract: The Emergency
has been replaced in its entirety by Attention: Rachel Potter, Desk Officer, Supplemental Appropriations Act for
paragraph 45. See Article 120(g) Department of Education, Office of Defense, the Global War on Terror and
Aggravated Sexual Contact with a Child, Management and Budget; 725 17th
Hurricane Recovery, 2006 (Pub. L. 109–
(i) Abusive Sexual Contact with a Child, Street, NW., Room 10222, New
234) provides $50 million in awards to
and (j) Indecent Liberty with Child. Executive Office Building, Washington,
(k) The Analysis accompanying institutions of higher education, as
DC 20503 or faxed to (202) 395–6974. defined in section 102 of the HEA, that
Article 134-Indecent Exposure is
SUPPLEMENTARY INFORMATION: Section are located in an area in which a major
amended by inserting the following:
3506 of the Paperwork Reduction Act of disaster was declared in accordance
88. Article 134 Indecent Exposure 1995 (44 U.S.C. Chapter 35) requires with section 401 of the Robert T.
200 Amendment. This paragraph that the Director of OMB provide Stafford Disaster Relief and Emergency
has been replaced in its entirety by interested Federal agencies and the Assistance Act related to hurricanes in
paragraph 45. See Article 120(n) public an early opportunity to comment
the Gulf of Mexico in calendar year
Indecent Exposure. on information collection requests. The
2005, and that were forced to close,
(l) The Analysis accompanying Office of Management and Budget
relocate or significantly curtail their
Article 134-Indecent Exposure is (OMB) may amend or waive the
requirement for public consultation to activities as a result of damage directly
amended by inserting the following: caused by the hurricanes. These
the extent that public participation in
88. Article 134 Indecent Exposure the approval process would defeat the Hurricane Education Recovery Awards
200 Amendment. This paragraph purpose of the information collection, can only be used to defray expenses,
has been replaced in its entirety by violate State or Federal law, or including expenses that would have
rwilkins on PROD1PC61 with NOTICES

paragraph 45. See Article 120(n) substantially interfere with any agency’s been covered by revenue lost as a direct
Indecent Exposure. ability to perform its statutory result of a hurricane, expenses already
(j) The Analysis accompanying Article obligations. The IC Clearance Official, incurred, and construction expenses
134-Pandering and Prostitution is Regulatory Information Management directly related to damage resulting
amended by inserting the following: Services, Office of Management, from the hurricanes.

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