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[Federal Register: January 15, 2010 (Volume 75, Number 10)]
[Notices]               
[Page 2511-2514]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja10-40]                         

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DEPARTMENT OF DEFENSE

Office of the Secretary

 
Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of Public Response to Proposed Amendments to the Manual

[[Page 2512]]

for Courts-Martial, United States (2008 ed.) (MCM).

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SUMMARY: The JSC is forwarding final proposed amendments to the MCM to 
the Department of Defense. The proposed changes constitute the 2009 
annual review required by the MCM and DoD Directive 5500.17, ``Role and 
Responsibilities of the Joint Service Committee (JSC) on Military 
Justice,'' May 3, 2003. The proposed changes concern the rules of 
procedure and evidence and the punitive articles applicable in trials 
by courts-martial. These proposed changes have not been coordinated 
within the Department of Defense under DoD Directive 5500.1, 
``Preparation, Processing and Coordinating Legislation, Executive 
Orders, Proclamations, Views Letters Testimony,'' June 15, 2007, and do 
not constitute the official position of the Department of Defense, the 
Military Departments, or any other Government agency.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the Office of the Judge Advocate 
General, Criminal Law Division (Code 20), 1254 Charles Morris Street, 
SE., Suite B01, Washington Navy Yard, District of Columbia between 9 
a.m. and 4 p.m., Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Stacia Gawronski, 
Executive Secretary, Joint Service Committee on Military Justice, 1254 
Charles Morris Street, SE., Suite B01, Washington Navy Yard, District 
of Columbia 20374, (202) 685-7683, (202) 685-7084 fax.

SUPPLEMENTARY INFORMATION: 

Background

    On 17 September 2009, the JSC published a notice of Proposed 
Amendments to the Manual for Courts-Martial and a Notice of Public 
Meeting to receive comments on these proposals. The public meeting was 
held on 29 October 2009. One individual representing an organization 
spoke at the public meeting to announce that the organization would be 
submitting written comments. One individual and one organization 
submitted comments through the Federal Register electronic bulletin 
board.

Discussion of Comments and Changes

    The JSC considered the public comments and decided to modify the 
proposed addition of a paragraph addressing child pornography under 
Article 134 in Part IV of the MCM. The JSC is satisfied the other 
proposed amendments are appropriate to implement without modification. 
The JSC will forward the public comments and proposed amendments to the 
Department of Defense.
    The public comments regarding the proposed changes follow:
    a. Recommended that the proposed `Child pornography' addition to 
Article 134, UCMJ, should be broadened to include the female breast. 
The JSC considered that broadening the definition in this way would be 
over inclusive and did not want to unintentionally criminalize conduct 
or depictions not sexual in nature (for example, a picture of a baby in 
the bath).
    b. Opined the proposed change to Military Rule of Evidence (M.R.E.) 
504 regarding spousal privilege does not seem to limit the privilege in 
a logical manner. For example, if a husband and wife both provided 
illegal drugs to a 12-year-old, the spouses would not be allowed to 
invoke their privilege against testifying against each other. However, 
if the wife was engaged in a sexual relationship with the same non-
relative, 12-year-old (and not acting in loco parentis), and the wife 
told the husband about the relationship, the marital privilege would 
remain intact. The JSC considered that adultery is a crime against the 
person of the other spouse for purposes of M.R.E. 504(c)(2)(A) under 
U.S. v. Taylor, 64 M.J. 416 (C.A.A.F. 2007), and therefore, the marital 
privilege would not remain intact in the second example given.
    c. Raised several concerns regarding the adequacy of the rule-
making process itself. The JSC considered these concerns and determined 
that the rulemaking process is adequate, satisfies statutory 
requirements, and provides meaningful opportunity for public 
participation.

Proposed Amendments After Period for Public Comment

    The proposed recommended amendments to the Manual for Courts-
Martial to be forwarded through the DoD for action by Executive Order 
of the President of the United States are as follows:
    Section 1. Part III of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) M.R.E. 504 (c)(2)(D) is added to read as follows:
    ``(D) Where both parties have been substantial participants in 
illegal activity, those communications between the spouses during the 
marriage regarding the illegal activity in which they have jointly 
participated are not marital communications for purposes of the 
privilege in subdivision (b), and are not entitled to protection under 
the privilege in subdivision (b).''
    (b) The following amendments conform M.R.E. 609 to F.R.E. 609:
    (1) M.R.E. 609 (a) is amended to substitute the words ``character 
for truthfulness'' for the word ``credibility.''
    (2) M.R.E. 609 (a)(2) is amended to substitute the words 
``regardless of the punishment, if it readily can be determined that 
establishing the elements of the crime required proof or admission of 
an act of dishonesty or false statement by the witness'' for the words 
``if it involved dishonesty or false statement, regardless of the 
punishment.''
    (3) M.R.E. 609 (c) is amended to substitute the words ``a 
subsequent crime that was punishable by death, dishonorable discharge, 
or imprisonment in excess of one year'' for the words ``a subsequent 
crime which was punishable by death, dishonorable discharge, or 
imprisonment in excess of one year.''
    Section 2. Part IV of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) Paragraph 13, Article 89, Disrespect toward a superior 
commissioned officer, paragraph c.(1) is amended to substitute the 
words ``uniformed service'' for ``armed forces'' everywhere the words 
``armed forces'' appear in that paragraph. This change is made to 
clarify that the uniformed officers of the Public Health Service and 
the National Oceanographic and Atmospheric Administration, when 
assigned to and serving with the armed forces, are included in the 
definition of a superior commissioned officer.
    (b) A clerical amendment is made to Paragraph 35, Article 111, 
Drunken or reckless operation of vehicle, aircraft or vessel, paragraph 
f to read as follows:
    ``(f) Sample Specification.
    In that -------- (personal jurisdiction data), did (at/on board--
location) (subject matter jurisdiction data, if required), on or about 
--------, 20----, (in the motor pool area) (near the Officer's Club) 
(at the intersection of -------- and --------) (while in the Gulf of 
Mexico) (while in flight over North America) physically control [a 
vehicle, to wit: (a truck) (a passenger car) (--------)] [an aircraft, 
to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (--
------)] [a vessel, to wit: (the aircraft carrier USS -------- (the 
Coast Guard Cutter --------) (--------)], [while drunk] [while impaired 
by --------] [while the alcohol concentration in his (blood or breath) 
equaled or exceeded the applicable limit under subparagraph (b) of the 
text of the statute in paragraph 35 as shown by

[[Page 2513]]

chemical analysis] [in a (reckless) (wanton) manner by (attempting to 
pass another vehicle on a sharp curve) (by ordering that the aircraft 
be flown below the authorized altitude)] [and did thereby cause said 
(vehicle) (aircraft) (vessel) to (strike and) (injure--------)].''
    (c) A clerical amendment is made to Paragraph 48, Article 123, 
Forgery, paragraph c.(4) to add the word ``to'' after the word 
``liability'' the second time it appears in the fifth sentence.
    (d) Paragraph 68b. is added as follows:
    ``68b. Article 134--(Child pornography)
    a. Text. See paragraph 60.
    b. Elements.
    (1) Possessing, receiving, or viewing child pornography.
    (a) That the accused knowingly and wrongfully possessed, received 
or viewed child pornography; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (2) Possessing child pornography with intent to distribute.
    (a) That the accused knowingly and wrongfully possessed child 
pornography;
    (b) That the possession was with the intent to distribute; and
    (c) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (3) Distributing child pornography.
    (a) That the accused knowingly and wrongfully distributed child 
pornography to another; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (4) Producing child pornography.
    (a) That the accused knowingly and wrongfully produced child 
pornography; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    c. Explanation.
    (1) ``Child Pornography'' means any visual depiction of a minor, or 
what appears to be a minor, engaging in sexually explicit conduct, even 
if the minor depicted was not an actual person or did not actually 
exist.
    (2) An accused may not be convicted of possessing, receiving, 
viewing, distributing, or producing child pornography, if he was not 
aware that the images were of minors, or what appeared to be minors, 
engaged in sexually explicit conduct. Awareness may be inferred from 
circumstantial evidence such as the name of a computer file or folder, 
the name of the host Web site from which a visual depiction was viewed 
or received, search terms used, and the number of images possessed.
    (3) ``Distributing'' means delivering to the actual or constructive 
possession of another.
    (4) ``Minor'' means any person under the age of 18 years;
    (5) ``Possessing'' means exercising control of something. 
Possession may be direct physical custody like holding an item in one's 
hand, or it may be constructive, as in the case of a person who hides 
something in a locker or a car to which that person may return to 
retrieve it. Possession must be knowing and conscious. Possession 
inherently includes the power or authority to preclude control by 
others. It is possible for more than one person to possess an item 
simultaneously, as when several people share control over an item.
    (6) ``Producing'' means creating or manufacturing. As used in this 
paragraph, it refers to making child pornography that did not 
previously exist. It does not include reproducing or copying.
    (7) ``Sexually explicit conduct'' means actual or simulated:
    (a) Sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the 
same or opposite sex;
    (b) Bestiality;
    (c) Masturbation;
    (d) Sadistic or masochistic abuse; or
    (e) Lascivious exhibition of the genitals or pubic area of any 
person.
    (8) ``Visual depiction'' includes any developed or undeveloped 
photograph, picture, film or video; any digital or computer image, 
picture, film or video made by any means, including those transmitted 
by any means including streaming media, even if not stored in a 
permanent format; or any digital or electronic data capable of 
conversion into a visual image.
    (9) ``Wrongfulness.'' Any facts or circumstances which show that a 
visual depiction of child pornography was unintentionally or 
inadvertently acquired are relevant to wrongfulness, including, but not 
limited to, the method by which the visual depiction was acquired, the 
length of time the visual depiction was maintained, and whether the 
visual depiction was promptly, and in good faith, destroyed or reported 
to law enforcement.
    (10) On motion of the government, in any prosecution under this 
paragraph, except for good cause shown, the name, address, social 
security number, or other nonphysical identifying information, other 
than the age or approximate age, of any minor who is depicted in any 
child pornography or visual depiction or copy thereof shall not be 
admissible and may be redacted from any otherwise admissible evidence, 
and the panel shall be instructed, upon request of the Government, that 
it can draw no inference from the absence of such evidence.
    d. Lesser included offenses.

(1) Possessing, receiving, or viewing child pornography
    Article 80--attempts
(2) Possessing child pornography with intent to distribute
    Article 80--attempts
    Article 134--possessing child pornography
(3) Distributing child pornography
    Article 80--attempts
    Article 134--possessing child pornography
    Article 134--possessing child pornography with intent to distribute
(4) Producing child pornography
    Article 80--attempts
    Article 134--possessing child pornography

    e. Maximum punishment.
    (1) Possessing, receiving or viewing child pornography. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 10 years.
    (2) Possessing child pornography with intent to distribute. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 15 years.
    (3) Distributing child pornography. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 20 years.
    (4) Producing child pornography. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for 30 years.
    f. Sample specification. Possessing, receiving, viewing, possessing 
with intent to distribute, distributing or producing child pornography.
    In that ------ (personal jurisdiction data), did, at ------, on or 
about ------ knowingly and wrongfully (possess) (receive) (view) 
(distribute) (produce) child pornography, to wit: a (photograph) 
(picture) (film) (video)

[[Page 2514]]

(digital image) (computer image) of a minor, or what appears to be a 
minor, engaging in sexually explicit conduct(, with intent to 
distribute the said child pornography).''
    Section 3. These amendments shall take effect 30 days from the date 
of this order.
    (a) Nothing in these amendments shall be construed to make 
punishable any act done or omitted prior to the effective date of this 
order that was not punishable when done or omitted.
    (b) Nothing in these amendments shall be construed to invalidate 
any nonjudicial punishment proceedings, restraint, investigation, 
referral of charges, trial in which arraignment occurred, or other 
action begun prior to the effective date of this order, and any such 
nonjudicial punishment, restraint, investigation, referral of charges, 
trial, or other action may proceed in the same manner and with the same 
effect as if these amendments had not been prescribed.

The White House

Changes to the Discussion Accompanying the Manual for Courts Martial, 
United States

    (a) A clerical amendment is made to the first paragraph of the 
Discussion following R.C.M. 1107(d)(1) to correctly reference R.C.M. 
1003(b)(5) and (6) instead of R.C.M. 1003(b)(6) and (7).

    Dated: December 18, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-600 Filed 1-14-10; 8:45 am]
BILLING CODE 5001-06-P
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