45780 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 

the Juvenile Justice and Delinquency 

Prevention Act of 2002, 42 U.S.C. 5601, 

et seq. Documents such as meeting 

announcements, agendas, minutes, and 

interim and final reports will be 

available on the Council’s Web page at 

http://www.JuvenileCouncil.gov. (You 

may also verify the status of the meeting 

at that Web address.) 

Although designated agency 

representatives may attend, the Council 

membership is composed of the 

Attorney General (Chair), the Secretary 

of Health and Human Services, the 

Secretary of Labor, the Secretary of 

Education, the Secretary of Housing and 

Urban Development, the Administrator 

of the Office of Juvenile Justice and 

Delinquency Prevention (Vice Chair), 

the Director of the Office of National 

Drug Control Policy, the Chief Executive 

Officer of the Corporation for National 

and Community Service, and the 

Assistant Secretary for Homeland 

Security, Immigrations and Customs 

Enforcement. Nine additional members 

are appointed by the Speaker of the 

House of Representatives, the Senate 

Majority Leader, and the President of 

the United States. 

Meeting Agenda 

The agenda for this meeting will 

include: (a) discussion of research 

concerning juveniles and youth who are 

disadvantaged or at-risk; (b) discussion 

of opportunities to leverage resources 

and coordinate research; (c) legislative, 

program and agency updates; and (d) 

other business and announcements. 

Registration 

For security purposes, members of the 

public who wish to attend the meeting 

must pre-register online at http:// 

www.juvenilecouncil.gov/ or by fax to: 

703–738–9149 [Daryel Dunston at 703–

738–9175 or e-mail, 

ddunston@edjassociates.com for 

questions], no later than Wednesday, 

August 30, 2006. [Note: these are not 

toll-free telephone numbers.] Additional 

identification documents may be 

required. Space is limited. 

Note: Photo identification will be required 

for admission to the meeting. 

Written Comments 

Interested parties may submit written 

comments by Wednesday, August 30, 

2006, to Robin Delany-Shabazz, 

Designated Federal Official for the 

Coordinating Council on Juvenile 

Justice and Delinquency Prevention, at 

Robin.Delany-Shabazz@usdoj.gov. The 

Coordinating Council on Juvenile 

Justice and Delinquency Prevention 

expects that the public statements 

presented will not repeat previously 

submitted statements. Written questions 

and comments from the public may be 

invited at this meeting. 

Dated: August 7, 2006. 

Michael Costigan, 

Chief of Staff, Office of Juvenile Justice and 

Delinquency Prevention. 

[FR Doc. E6–13104 Filed 8–9–06; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[DOD–2006–OS–0177] 

Manual for Courts-Martial; Proposed 

Amendments 

AGENCY: Joint Service Committee on 

Military Justice (JSC), DoD. 

ACTION: Notice of Proposed 

Amendments to the Manual for CourtsMartial, United States (2005 ed.) and 

Notice of Public Meeting. 

SUMMARY: The Department of Defense is 

considering recommending changes to 

the Manual for Courts-Martial, United 

States (2005 ed.) (MCM). The proposed 

changes constitute the 2005 annual 

review (delayed) required by the MCM 

and DoD Directive 5500.17, ‘‘Role and 

Responsibilities of the Joint Service 

Committee (JSC) on Military Justice,’’

May 3, 2003. The proposed changes 

concern the rules of procedure and 

evidence and the punitive articles 

applicable in trials by courts-martial. 

These proposed changes have not been 

coordinated within the Department of 

Defense under DoD Directive 5500.1, 

‘‘Preparation and Processing of 

Legislation, Executive Orders, 

Proclamations, and Reports and 

Comments Thereon,’’ May 21, 1964, and 

do not constitute the official position of 

the Department of Defense, the Military 

Departments, or any other Government 

agency. 

This notice also sets forth the date, 

time and location for the public meeting 

of the JSC to discuss the proposed 

changes. 

This notice is provided in accordance 

with DoD Directive 5500.17, ‘‘Role and 

Responsibilities of the Joint Service 

Committee (JSC) on Military Justice,’’

May 3, 2003. This notice is intended 

only to improve the internal 

management of the Federal Government. 

It is not intended to create any right or 

benefit, substantive or procedural, 

enforceable at law by any party against 

the United States, its agencies, its 

officers, or any person. 

In accordance with paragraph III.B.4 

of the Internal Organization and 

Operating Procedures of the JSC, the 

committee also invites members of the 

public to suggest changes to the Manual 

for Courts-Martial in accordance with 

the described format. 

DATES: Comments on the proposed 

changes must be received no later than 

October 1, 2006 to be assured 

consideration by the JSC. A public 

meeting will be held on September 18, 

2006 at 11:00 a.m. in the 14th Floor 

Conference Room, 1777 N. Kent St., 

Rosslyn, VA 22209–2194. 

ADDRESSES: Comments on the proposed 

changes should be sent to Lieutenant 

Colonel L. Peter Yob, Office of The 

Judge Advocate General, Criminal Law 

Division, 1777 N. Kent St., Rosslyn, VA 

22209–2194. 

FOR FURTHER INFORMATION CONTACT: 

Lieutenant Colonel L. Peter Yob, 

Executive Secretary, Joint Service 

Committee on Military Justice, Office of 

the Judge Advocate General, Office of 

The Judge Advocate General, Criminal 

Law Division, 1777 N. Kent St., Rosslyn, 

VA 22209–2194, (703) 588–6744, e-mail 

Louis.Yob@hqda.army.mil. 

SUPPLEMENTARY INFORMATION: The 

proposed amendments to the MCM are 

as follows (material in bold and/or 

underlined is new): 

Part II of the Manual for CourtsMartial, United States, is amended as 

follows: 

(a) RCM 916(b) is amended to read: 

(b) Burden of proof. 

(1) General rule. Except as listed 

below in paragraphs (2), (3), and (4), the 

prosecution shall have the burden of 

proving beyond a reasonable doubt that 

the defense did not exist. 

(2) Lack of mental responsibility. The 

accused has the burden of proving the 

defense of lack of mental responsibility 

by clear and convincing evidence. 

(3) Mistake of fact as to age. In the 

defense of mistake of fact as to age as 

described in Part IV, para. 45a(o)(2) in 

a prosecution of a sexual offense with a 

child under Article 120, the accused has 

the burden of proving mistake of fact as 

to age by a preponderance of the 

evidence. After the defense meets its 

burden, the prosecution shall have the 

burden of proving beyond a reasonable 

doubt that the defense did not exist. 

(4) Mistake of fact as to consent. In 

the defense of mistake of fact as to 

consent in Article 120(a), rape, Article 

120(c), aggravated sexual assault, 

Article 120(e), aggravated sexual 

contact, and Article 120(h), abusive 

sexual contact, the accused has the 

burden of proving mistake of fact as to 

consent by a preponderance of the 

evidence. After the defense meets its 

burden, the prosecution shall have the 


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burden of proving beyond a reasonable 

doubt that the defense did not exist. 

(b) RCM 916(j)(2) is amended to read: 

(2) Child Sexual Offenses. It is a 

defense to a prosecution for Article 120 

(d), aggravated sexual assault of a child, 

Article 120(f), aggravated sexual abuse 

of a child, Article 120(i), abusive sexual 

contact with a child, or Article 120 (j), 

indecent liberty with a child that, at the 

time of the offense, the child was at least 

12 years of age, and the accused 

reasonably believed the person was at 

least 16 years of age. The accused must 

prove this defense by a preponderance 

of the evidence. 

(c) RCM 916(j) is amended by 

inserting new paragraph RCM 916(j)(3) 

after the Discussion section to RCM 

916(j)(2): 

(j)(3) Sexual offenses. It is an 

affirmative defense to a prosecution for 

Article 120(a), rape, Article 120(c), 

aggravated sexual assault, Article 

120(e), aggravated sexual contact, and 

Article 120(h), abusive sexual contact 

that the accused held, as a result of 

ignorance or mistake, an incorrect belief 

that the other person engaging in the 

sexual conduct consented. The 

ignorance or mistake must have existed 

in the mind of the accused and must 

have been reasonable under all the 

circumstances. To be reasonable the 

ignorance or mistake must have been 

based on information, or lack of it, 

which would indicate to a reasonable 

person that the other person consented. 

Additionally, the ignorance or mistake 

cannot be based on the negligent failure 

to discover the true facts. Negligence is 

the absence of due care. Due care is 

what a reasonably careful person would 

do under the same or similar 

circumstances. The accused’s state of 

intoxication, if any, at the time of the 

offense is not relevant to mistake of fact. 

A mistaken belief that the other person 

consented must be that which is a 

reasonably careful, ordinary, prudent, 

sober adult would have had under the 

circumstances at the time of the offense. 

(d) RCM 920(e)(5)(D) is amended to 

read: 

(D) The burden of proof to establish 

the guilt of the accused is upon the 

Government. [When the issue of lack of 

mental responsibility is raised, add: The 

burden of proving the defense of lack of 

mental responsibility by clear and 

convincing evidence is upon the 

accused. When the issue of mistake of 

fact under RCM 916 (j)(2) or (j)(3) is 

raised, add: The accused has the burden 

of proving the defense of mistake of fact 

as to consent or age by a preponderance 

of the evidence.] 

(e) RCM 1004(c)(7)(B) is amended to 

read as follows: 

(B) The murder was committed: While 

the accused was engaged in the 

commission or attempted commission of 

any robbery, rape, rape of a child, 

aggravated sexual assault, aggravated 

sexual assault of a child, aggravated 

sexual contact, aggravated sexual abuse 

of a child, aggravated sexual contact 

with a child, aggravated arson, sodomy, 

burglary, kidnapping, mutiny, sedition, 

or privacy of an aircraft or vessel; or 

while the accused was engaged in the 

commission or attempted commission of 

any offense involving the wrongful 

distribution, manufacture, or 

introduction or possession, with intent 

to distribute, of a controlled substance; 

or, while the accused was engaged in 

flight or attempted flight after the 

commission or attempted commission of 

any such offense. 

(f) RCM 1004(c)(8) is amended to 

read: 

(8) That only in the case of a violation 

of Article 118(4), the accused was the 

actual perpetrator of the killing or was 

a principal whose participation in the 

burglary, sodomy, rape, rape of a child, 

aggravated sexual assault, aggravated 

sexual assault of a child, aggravated 

sexual contact, aggravated sexual abuse 

of a child, aggravated sexual contact 

with a child, robbery, or aggravated 

arson was major and who manifested a 

reckless indifference for human life. 

(g) RCM 1102(b)(2), is amended to 

read: 

(2) Article 39(a) sessions. An Article 

39(a) session under this rule may be 

called, upon motion of either party or 

sua sponte by the military judge, for the 

purpose of inquiring into, and, when 

appropriate, resolving any matter which 

arises after trial and which substantially 

affects the legal sufficiency of any 

findings of guilty or the sentence. The 

military judge may also call an Article 

39(a) session, upon motion of either 

party or sua sponte, to reconsider any 

trial ruling that substantially affects the 

legal sufficiency of any findings of 

guilty or the sentence. The military 

judge may, sua sponte, at any time prior 

to authentication of the record of trial, 

enter a finding of not guilty of one or 

more offenses charged, or may enter a 

finding of not guilty of a part of a 

specification as long as a lesser offense 

charged is alleged in the portion of the 

specification. Prior to entering such a 

finding or findings, the military judge 

shall give each party an opportunity to 

be heard on the matter in a post-trial 

Article 39(a) session. 

(h) R.C.M. 1102(d) is amended by 

deleting the last phrase of the second 

sentence which reads: 

‘‘, except that no proceeding in 

revision may be held when any part of 

the sentence has been ordered 

executed.’’

(i) R.C.M. 1102(e)(2) is amended by 

inserting the following sentence after 

the last sentence in RCM 1102(e)(2): 

‘‘Prior to the military judge, sua 

sponte, entering a finding of not guilty 

of one or more offenses charged or 

entering a finding of not guilty of a part 

of a specification as long as a lesser 

offense charged is alleged in the portion 

of the specification, the military judge 

shall give each party an opportunity to 

be heard on the matter.’’

(j) R.C.M. 1204(c)(2) is amended by 

inserting the following at the end of the 

sentence: 

(c) Action of decision by the Court of 

Appeals for the Armed Forces. 

(2) Sentence requiring approval of the 

President. If the Court of Appeals for the 

Armed Forces has affirmed a sentence 

which must be approved by the 

President before it may be executed, the 

Judge Advocate General shall transmit 

the record of trial, the decision of the 

Court of Criminal Appeals, the decision 

of the Court of Appeals for the Armed 

Forces, and the recommendation of the 

Judge Advocate General to the Secretary 

concerned, who, at his discretion, may 

provide a recommendation. All courtsmartial transmitted by the Secretary 

concerned, other than the Secretary of 

the Department of Homeland Security 

with respect to the Coast Guard when it 

is not operating as a service in the Navy, 

for the action of the President shall be 

transmitted to the Secretary of Defense, 

who, at his discretion, may provide a 

recommendation. 

Part III of the Manual for CourtsMartial, United States, is amended as 

follows: 

(a) MRE 412 is amended as follows: 

Rule 412. Sex offense cases: 

Relevance of alleged victim’s sexual 

behavior or sexual predisposition. 

(a) Evidence generally inadmissible. 

The following evidence is not 

admissible in any proceeding involving 

an alleged sexual offense except as 

provided in subdivisions (b) and (c): 

(1) Evidence offered to prove that any 

alleged victim engaged in other sexual 

behavior. 

(2) Evidence offered to prove any 

alleged victim’s sexual predisposition. 

(b) Exceptions. 

(1) In a proceeding, the following 

evidence is admissible, if otherwise 

admissible under these rules: 

(A) Evidence of specific instances of 

sexual behavior by the alleged victim 

offered to prove that a person other than 

the accused was the source of semen, 

injury, or other physical evidence; 

(B) Evidence of specific instances of 

sexual behavior by the alleged victim 


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with respect to the person accused of 

the sexual misconduct offered by the 

accused to prove consent or by the 

prosecution; and 

(C) Evidence the exclusion of which 

would violate the constitutional rights 

of the accused. 

(c) Procedure to determine 

admissibility. 

(1) A party intending to offer evidence 

under subdivision (b) must—

(A) File a written motion at least 5 

days prior to entry of pleas specifically 

describing the evidence and stating the 

purpose for which it is offered unless 

the military judge, for good cause 

shown, requires a different time for 

filing or permits filing during trial; and 

(B) Serve the motion on the opposing 

party and the military judge and notify 

the alleged victim or, when appropriate, 

the alleged victim’s guardian or 

representative. 

(2) Before admitting evidence under 

this rule, the military judge must 

conduct a hearing, which shall be 

closed. At this hearing, the parties may 

call witnesses, including the alleged 

victim, and offer relevant evidence. The 

alleged victim must be afforded a 

reasonable opportunity to attend and be 

heard. In a case before a court-martial 

composed of a military judge and 

members, the military judge shall 

conduct the hearing outside the 

presence of the members pursuant to 

Article 39(a). The motion, related 

papers, and the record of the hearing 

must be sealed and remain under seal 

unless the court orders otherwise. 

(3) If the military judge determines on 

the basis of the hearing described in 

paragraph (2) of this subdivision that 

the evidence that the accused seeks to 

offer is relevant for a purpose under 

subdivision (b) and that the probative 

value of such evidence outweighs the 

danger of unfair prejudice to the alleged 

victim’s privacy, such evidence shall be 

admissible under this rule to the extent 

an order made by the military judge 

specifies evidence that may be offered 

and areas with respect to which the 

alleged victim may be examined or 

cross-examined. Such evidence is still 

subject to challenge under MRE 403. 

(d) For purposes of this rule, the term 

‘‘sexual offense’’ includes any sexual 

misconduct punishable under the 

Uniform Code of Military Justice, federal 

law or state law. ‘‘Sexual behavior’’

includes any sexual behavior not 

encompassed by the alleged offense. 

The term ‘‘sexual predisposition’’ refers 

to an alleged victim’s mode of dress, 

speech, or lifestyle that does not directly 

refer to sexual activities or thoughts but 

that may have a sexual connotation for 

the factfinder. 

(a) M.R.E. 503(b) is amended by 

renumbering the existing subsection (2) 

to subsection (3) and inserting the 

following new subsection (2) after 

current M.R.E. 503(b)(1) to read as 

follows: 

‘‘(2) A ‘‘clergyman’s assistant’’ is a 

person employed by or assigned to 

assist a clergyman in his capacity as a 

spiritual advisor.’’

(b) M.R.E. 504 is amended by inserting 

new subsection (d) after M.R.E. 504(c): 

‘‘(d) Definitions. As used in this rule: 

(1) The term ‘‘a child of either’’

includes not only a biological child, 

adopted child, or ward of one of the 

spouses but also includes a child who 

is under the permanent or temporary 

physical custody of one of the spouses, 

regardless of the existence of a legal 

parent-child relationship. For purposes 

of this rule only, a child is: (i) an 

individual under the age of eighteen; or 

(ii) an individual with a mental 

handicap who functions under the age 

of eighteen.’’

(2) The term ‘‘temporary physical 

custody’’ includes instances where a 

parent entrusts his or her child with 

another. There is no minimum amount 

of time necessary to establish temporary 

physical custody nor must there be a 

written agreement. Rather, the focus is 

on the parent’s agreement with another 

for assuming parental responsibility for 

the child. For example, temporary 

physical custody may include instances 

where a parent entrusts another with the 

care of their child for recurring care or 

during absences due to temporary duty 

or deployments. 

Part IV of the Manual for CourtsMartial, United States, is amended as 

follows: 

(a) Paragraph 43, Article 118, Murder, 

paragraph (a)(4) is amended to read: 

(a)(4) is engaged in the perpetration or 

attempted perpetration of burglary, 

sodomy, rape, rape of a child, 

aggravated sexual assault, aggravated 

sexual assault of a child, aggravated 

sexual contact, aggravated sexual abuse 

of a child, aggravated sexual contact 

with a child, robbery or aggravated 

arson; is guilty of murder, and shall 

suffer such punishment as a court 

martial may direct, except that if found 

guilty under clause (1) or (4), he shall 

suffer death or imprisonment for life as 

a court martial may direct. 

(b) Paragraph 43, Article 118, Murder, 

paragraph (b)(4) is amended to read: 

(b)(4) That, at the time of the killing, 

the accused was engaged in the 

perpetration or attempted perpetration 

of burglary, sodomy, rape, rape of a 

child, aggravated sexual assault, 

aggravated sexual assault of a child, 

aggravated sexual contact, aggravated 

sexual abuse of a child, aggravated 

sexual contact with a child, robbery, or 

aggravated arson. 

(c) Paragraph 44, Article 119, 

Manslaughter, paragraph (b)(2)(d), is 

amended to read: 

(b)(2)(d) That this act or omission of 

the accused constituted culpable 

negligence, or occurred while the 

accused was perpetrating or attempting 

to perpetrate an offense directly 

affecting the person other than burglary, 

sodomy, rape, rape of a child, 

aggravated sexual assault, aggravated 

sexual assault of a child, aggravated 

sexual contact, aggravated sexual abuse 

of a child, aggravated sexual contact 

with a child, robbery, or aggravated 

arson. 

(d) Paragraph 45, Rape and Carnal 

Knowledge, is amended to read: 

Article 120. Rape, Sexual Assault, and 

Other Sexual Misconduct 

a. Text. See Article 120, UCMJ. 

(a) Rape. Any person subject to this 

chapter who causes another person of 

any age to engage in a sexual act by—

(1) Using force against that other 

person; 

(2) Causing grievous bodily harm to 

any person; 

(3) Threatening or placing that other 

person in fear that any person will be 

subjected to death, grievous bodily 

harm, or kidnapping; 

(4) Rendering another person 

unconscious; or 

(5) Administering to another person 

by force or threat of force, or without the 

knowledge or permission of that person, 

a drug, intoxicant, or other similar 

substance and thereby substantially 

impairs the ability of that other person 

to appraise or control conduct; 

Is guilty of rape and shall be punished 

as a court-martial may direct. 

(b) Rape of a child. Any person 

subject to this chapter who—

(1) Engages in a sexual act with a 

child who has not attained the age of 12 

years; or 

(2) Engages in a sexual act under the 

circumstances described in subsection 

(a) with a child who has attained the age 

of 12 years; 

Is guilty of rape of a child and shall 

be punished as a court-martial may 

direct. 

(c) Aggravated sexual assault. Any 

person subject to this chapter who—

(1) Causes another person of any age 

to engage in a sexual act by—

(A) Threatening or placing that other 

person in fear (other than by threatening 

or placing that other person in fear that 

any person will be subjected to death, 

grievous bodily harm, or kidnapping); or 

(B) Causing bodily harm; or 


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(2) Engages in a sexual act with 

another person of any age if that other 

person is substantially incapacitated or 

substantially incapable of—

(A) Appraising the nature of the 

sexual act; 

(B) Declining participation in the 

sexual act; or 

(C) Communicating unwillingness to 

engage in the sexual act; 

Is guilty of aggravated sexual assault 

and shall be punished as a court-martial 

may direct. 

(d) Aggravated sexual assault of a 

child. Any person subject to this chapter 

who engages in a sexual act with a child 

who has attained the age of 12 years is 

guilty of aggravated sexual assault of a 

child and shall be punished as a courtmartial may direct. 

(e) Aggravated sexual contact. Any 

person subject to this chapter who 

engages in or causes sexual contact with 

or by another person, if to do so would 

violate subsection (a) (rape) had the 

sexual contact been a sexual act, is 

guilty of aggravated sexual contact and 

shall be punished as a court-martial may 

direct. 

(f) Aggravated sexual abuse of a child. 

Any person subject to this chapter who 

engages in a lewd act with a child is 

guilty of aggravated sexual abuse of a 

child and shall be punished as a courtmartial may direct. 

(g) Aggravated sexual contact with a 

child. Any person subject to this chapter 

who engages in or causes sexual contact 

with or by another person, if to do so 

would violate subsection (b) (rape of a 

child) had the sexual contact been a 

sexual act, is guilty of aggravated sexual 

contact with a child and shall be 

punished as a court-martial may direct. 

(h) Abusive sexual contact. Any 

person subject to this chapter who 

engages in or causes sexual contact with 

or by another person, if to do so would 

violate subsection (c) (aggravated sexual 

assault) had the sexual contact been a 

sexual act, is guilty of abusive sexual 

contact and shall be punished as a 

court-martial may direct. 

(i) Abusive sexual contact with a 

child. Any person subject to this chapter 

who engages in or causes sexual contact 

with or by another person, if to do so 

would violate subsection (d) (aggravated 

sexual assault of a child) had the sexual 

contact been a sexual act, is guilty of 

abusive sexual contact with a child and 

shall be punished as a court-martial may 

direct. 

(j) Indecent liberty with a child. Any 

person subject to this chapter who 

engages in indecent liberty in the 

physical presence of a child—

(1) With the intent to arouse, appeal 

to, or gratify the sexual desire of any 

person; or 

(2) With the intent to abuse, 

humiliate, or degrade any person; is 

guilty of indecent liberty with a child 

and shall be punished as a court-martial 

may direct. 

(k) Indecent act. Any person subject to 

this chapter who engages in indecent 

conduct is guilty of an indecent act and 

shall be punished as a court-martial may 

direct. 

(l) Forcible pandering. Any person 

subject to this chapter who compels 

another person to engage in an act of 

prostitution with another person to be 

directed to said person is guilty of 

forcible pandering and shall be 

punished as a court-martial may direct. 

(m) Wrongful sexual contact. Any 

person subject to this chapter who, 

without legal justification or lawful 

authorization, engages in sexual contact 

with another person without that other 

person’s permission is guilty of 

wrongful sexual contact and shall be 

punished as a court-martial may direct. 

(n) Indecent exposure. Any person 

subject to this chapter who intentionally 

exposes, in an indecent manner, in any 

place where the conduct involved may 

reasonably be expected to be viewed by 

people other than members of the 

actor’s family or household, the 

genitalia, anus, buttocks, or female 

areola or nipple is guilty of indecent 

exposure and shall by punished as a 

court-martial may direct. 

(o) Age of child. 

(1) Twelve years. In a prosecution 

under subsection (b) (rape of a child), 

subsection (g) (aggravated sexual contact 

with a child), or subsection (j) (indecent 

liberty with a child), it need not be 

proven that the accused knew that the 

other person engaging in the sexual act, 

contact, or liberty had not attained the 

age of 12 years. It is not an affirmative 

defense that the accused reasonably 

believed that the child had attained the 

age of 12 years. 

(2) Sixteen years. In a prosecution 

under subsection (d) (aggravated sexual 

assault of a child), subsection (f) 

(aggravated sexual abuse of a child), 

subsection (i) (abusive sexual contact 

with a child), or subsection (j) (indecent 

liberty with a child), it need not be 

proven that the accused knew that the 

other person engaging in the sexual act, 

contact, or liberty had not attained the 

age of 16 years. Unlike in paragraph (1), 

however, it is an affirmative defense 

that the accused reasonably believed 

that the child had attained the age of 16 

years. 

(p) Proof of threat. In a prosecution 

under this section, in proving that the 

accused made a threat, it need not be 

proven that the accused actually 

intended to carry out the threat. 

(q) Marriage. 

(1) In general. In a prosecution under 

paragraph (2) of subsection (c) 

(aggravated sexual assault), or under 

subsection (d) (aggravated sexual assault 

of a child), subsection (f) (aggravated 

sexual abuse of a child), subsection (i) 

(abusive sexual contact with a child), 

subsection (j) (indecent liberty with a 

child), subsection (m) (wrongful sexual 

contact), or subsection (n) (indecent 

exposure), it is an affirmative defense 

that the accused and the other person 

when they engaged in the sexual act, 

sexual contact, or sexual conduct are 

married to each other. 

(2) Definition. For purposes of this 

subsection, a marriage is a relationship, 

recognized by the laws of a competent 

State or foreign jurisdiction, between 

the accused and the other person as 

spouses. A marriage exists until it is 

dissolved in accordance with the laws 

of a competent State or foreign 

jurisdiction. 

(3) Exception. Paragraph (1) shall not 

apply if the accused’s intent at the time 

of the sexual conduct is to abuse, 

humiliate, or degrade any person. 

(r) Consent and mistake of fact as to 

consent. Lack of permission is an 

element of the offense in subsection (m) 

(wrongful sexual contact). Consent and 

mistake of fact as to consent are not an 

issue, or an affirmative defense, in a 

prosecution under any other subsection, 

except they are an affirmative defense 

for the sexual conduct in issue in a 

prosecution under subsection (a) (rape), 

subsection (c) (aggravated sexual 

assault), subsection (e) (aggravated 

sexual contact), and subsection (h) 

(abusive sexual contact). 

(s) Other affirmative defenses not 

precluded. The enumeration in this 

section of some affirmative defenses 

shall not be construed as excluding the 

existence of others. 

(t) Definitions. In this section: 

(1) Sexual act. The term ‘sexual act’

means—

(A) Contact between the penis and the 

vulva, and for purposes of this 

subparagraph contact involving the 

penis occurs upon penetration, however 

slight; or 

(B) The penetration, however slight, 

of the genital opening of another by a 

hand or finger or by any object, with an 

intent to abuse, humiliate, harass, or 

degrade any person or to arouse or 

gratify the sexual desire of any person. 

(2) Sexual contact. The term ‘sexual 

contact’ means the intentional touching, 

either directly or through the clothing, 

of the genitalia, anus, groin, breast, 


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inner thigh, or buttocks of another 

person, or intentionally causing another 

person to touch, either directly or 

through the clothing, the genitalia, anus, 

groin, breast, inner thigh, or buttocks of 

any person, with an intent to abuse, 

humiliate, or degrade any person or to 

arouse or gratify the sexual desire of any 

person. 

(3) Grievous bodily harm. The term 

‘grievous bodily harm’ means serious 

bodily injury. It includes fractured or 

dislocated bones, deep cuts, torn 

members of the body, serious damage to 

internal organs, and other severe bodily 

injuries. It does not include minor 

injuries such as a black eye or a bloody 

nose. It is the same level of injury as in 

section 928 (article 128) of this chapter, 

and a lesser degree of injury than in 

section 2246(4) of title 18. 

(4) Dangerous weapon or object. The 

term ‘dangerous weapon or object’

means 

(A) Any firearm, loaded or not, and 

whether operable or not; 

(B) Any other weapon, device, 

instrument, material, or substance, 

whether animate or inanimate, that in 

the manner it is used, or is intended to 

be used, is known to be capable of 

producing death or grievous bodily 

harm; or 

(C) Any object fashioned or utilized in 

such a manner as to lead the victim 

under the circumstances to reasonably 

believe it to be capable of producing 

death or grievous bodily harm. 

(5) Force. The term ‘force’ means 

action to compel submission of another 

or to overcome or prevent another’s 

resistance by—

(A) The use or display of a dangerous 

weapon or object; 

(B) The suggestion of possession of a 

dangerous weapon or object that is used 

in a manner to cause another to believe 

it is a dangerous weapon or object; or 

(C) Physical violence, strength, power, 

or restraint applied to another person, 

sufficient that the other person could 

not avoid or escape the sexual conduct. 

(6) Threatening or placing that other 

person in fear. The term ‘threatening or 

placing that other person in fear’ under 

paragraph (3) of subsection (a) (rape), or 

under subsection (e) (aggravated sexual 

contact), means a communication or 

action that is of sufficient consequence 

to cause a reasonable fear that noncompliance will result in the victim or 

another person being subjected to death, 

grievous bodily harm, or kidnapping. 

(7) Threatening or placing that other 

person in fear. 

(A) In general. The term ‘threatening 

or placing that other person in fear’

under paragraph (1)(A) of subsection (c) 

(aggravated sexual assault), or under 

subsection (h) (abusive sexual contact), 

means a communication or action that 

is of sufficient consequence to cause a 

reasonable fear that non-compliance 

will result in the victim or another being 

subjected to a lesser degree of harm than 

death, grievous bodily harm, or 

kidnapping. 

(B) Inclusions. Such lesser degree of 

harm includes—

(i) Physical injury to another person 

or to another person’s property; or 

(ii) A threat—

(I) To accuse any person of a crime; 

(II) To expose a secret or publicize an 

asserted fact, whether true or false, 

tending to subject some person to 

hatred, contempt or ridicule; or 

(III) Through the use or abuse of 

military position, rank, or authority, to 

affect or threaten to affect, either 

positively or negatively, the military 

career of some person. 

(8) Bodily harm. The term ‘bodily 

harm’ means any offensive touching of 

another, however slight. 

(9) Child. The term ‘child’ means any 

person who has not attained the age of 

16 years. 

(10) Lewd act. The term ‘lewd act’

means—

(A) The intentional touching, not 

through the clothing, of the genitalia of 

another person, with an intent to abuse, 

humiliate, or degrade any person, or to 

arouse or gratify the sexual desire of any 

person; or 

(B) Intentionally causing another 

person to touch, not through the 

clothing, the genitalia of any person 

with an intent to abuse, humiliate or 

degrade any person, or to arouse or 

gratify the sexual desire of any person. 

(11) Indecent liberty. The term 

‘indecent liberty’ means indecent 

conduct, but physical contact is not 

required. It includes one who with the 

requisite intent exposes one’s genitalia, 

anus, buttocks, or female areola or 

nipple to a child. An indecent liberty 

may consist of communication of 

indecent language as long as the 

communication is made in the physical 

presence of the child. If words designed 

to excite sexual desire are spoken to a 

child, or a child is exposed to or 

involved in sexual conduct, it is an 

indecent liberty; the child’s consent is 

not relevant. 

(12) Indecent conduct. The term 

‘indecent conduct’ means that form of 

immorality relating to sexual impurity 

which is grossly vulgar, obscene, and 

repugnant to common propriety, and 

tends to excite sexual desire or deprave 

morals with respect to sexual relations. 

Indecent conduct includes observing, or 

making a videotape, photograph, motion 

picture, print, negative, slide, or other 

mechanically, electronically, or 

chemically reproduced visual material, 

without another person’s consent, and 

contrary to that other person’s 

reasonable expectation of privacy, of—

(A) That other person’s genitalia, 

anus, or buttocks, or (if that other 

person is female) that person’s areola or 

nipple; or 

(B) That other person while that other 

person is engaged in a sexual act, 

sodomy (under section 925 (article 

125)), or sexual contact. 

(13) Act of prostitution. The term ‘act 

of prostitution’ means a sexual act, 

sexual contact, or lewd act for the 

purpose of receiving money or other 

compensation. 

(14) Consent. The term ‘consent’

means words or overt acts indicating a 

freely given agreement to the sexual 

conduct at issue by a competent person. 

An expression of lack of consent 

through words or conduct means there 

is no consent. Lack of verbal or physical 

resistance or submission resulting from 

the accused’s use of force, threat of 

force, or placing another person in fear 

does not constitute consent. A current 

or previous dating relationship by itself 

or the manner of dress of the person 

involved with the accused in the sexual 

conduct at issue shall not constitute 

consent. A person cannot consent to 

sexual activity if—

(A) Under 16 years of age; or 

(B) Substantially incapable of—

(i) Appraising the nature of the sexual 

conduct at issue due to—

(I) Mental impairment or 

unconsciousness resulting from 

consumption of alcohol, drugs, a similar 

substance, or otherwise; or 

(II) Mental disease or defect which 

renders the person unable to understand 

the nature of the sexual conduct at 

issue; 

(ii) Physically declining participation 

in the sexual conduct at issue; or 

(iii) Physically communicating 

unwillingness to engage in the sexual 

conduct at issue. 

(15) Mistake of fact as to consent. The 

term ‘mistake of fact as to consent’

means the accused held, as a result of 

ignorance or mistake, an incorrect belief 

that the other person engaging in the 

sexual conduct consented. The 

ignorance or mistake must have existed 

in the mind of the accused and must 

have been reasonable under all the 

circumstances. To be reasonable the 

ignorance or mistake must have been 

based on information, or lack of it, 

which would indicate to a reasonable 

person that the other person consented. 

Additionally, the ignorance or mistake 

cannot be based on the negligent failure 

to discover the true facts. Negligence is 


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the absence of due care. Due care is 

what a reasonably careful person would 

do under the same or similar 

circumstances. The accused’s state of 

intoxication, if any, at the time of the 

offense is not relevant to mistake of fact. 

A mistaken belief that the other person 

consented must be that which a 

reasonably careful, ordinary, prudent, 

sober adult would have had under the 

circumstances at the time of the offense. 

(16) Affirmative defense. The term 

‘affirmative defense’ means any special 

defense which, although not denying 

that the accused committed the 

objective acts constituting the offense 

charged, denies, wholly, or partially, 

criminal responsibility for those acts. 

The accused has the burden of proving 

the affirmative defense by a 

preponderance of evidence. After the 

defense meets this burden, the 

prosecution shall have the burden of 

proving beyond a reasonable doubt that 

the affirmative defense did not exist.’’. 

b. Elements. 

(1) Rape. 

(a) Rape by using force. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act by using force against that 

other person. 

(b) Rape by causing grievous bodily 

harm. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act by causing grievous bodily 

harm to any person. 

(c) Rape by using threats or placing in 

fear. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act by threatening or placing 

that other person in fear that any person 

will be subjected to death, grievous 

bodily harm, or kidnapping. 

(d) Rape by rendering another 

unconscious. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act by rendering that other 

person unconscious. 

(e) Rape by administration of drug, 

intoxicant, or other similar substance. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act by administering to that 

other person a drug, intoxicant, or other 

similar substance; 

(ii) That the accused administered the 

drug, intoxicant or other similar 

substance by force or threat of force or 

without the knowledge or permission of 

that other person; and 

(iii) That, as a result, that other 

person’s ability to appraise or control 

conduct was substantially impaired. 

(2) Rape of a child. 

(a) Rape of a child who has not 

attained the age of 12 years. 

(i) That the accused engaged in a 

sexual act with a child; and 

(ii) That at the time of the sexual act 

the child had not attained the age of 

twelve years. 

(b) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by using force. 

(i) That the accused engaged in a 

sexual act with a child; 

(ii) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years; and 

(iii) That the accused did so by using 

force against that child. 

(c) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by causing grievous 

bodily harm. 

(i) That the accused engaged in a 

sexual act with a child; 

(ii) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years; and 

(iii) That the accused did so by 

causing grievous bodily harm to any 

person. 

(d) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by using threats or 

placing in fear. 

(i) That the accused engaged in a 

sexual act with a child; 

(ii) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years; and 

(iii) That the accused did so by 

threatening or placing that child in fear 

that any person will be subjected to 

death, grievous bodily harm, or 

kidnapping. 

(e) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by rendering that 

child unconscious. 

(i) That the accused engaged in a 

sexual act with a child; 

(ii) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years; and 

(iii) That the accused did so by 

rendering that child unconscious. 

(f) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by administration of 

drug, intoxicant, or other similar 

substance. 

(i) That the accused engaged in a 

sexual act with a child; 

(ii) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years; and 

(iii)(a) That the accused did so by 

administering to that child a drug, 

intoxicant, or other similar substance; 

(b) That the accused administered the 

drug, intoxicant, or other similar 

substance by force or threat of force or 

without the knowledge or permission of 

that child; and 

(c) That, as a result, that child’s ability 

to appraise or control conduct was 

substantially impaired. 

(3) Aggravated sexual assault. 

(a) Aggravated sexual assault by using 

threats or placing in fear. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act; and 

(ii) That the accused did so by 

threatening or placing that other person 

in fear that any person would be 

subjected to bodily harm or other harm 

(other than by threatening or placing 

that other person in fear that any person 

would be subjected to death, grievous 

bodily harm, or kidnapping). 

(b) Aggravated sexual assault by 

causing bodily harm. 

(i) That the accused caused another 

person, who is of any age, to engage in 

a sexual act; and 

(ii) That the accused did so by causing 

bodily harm to another person. 

(c) Aggravated sexual assault upon a 

person substantially incapacitated or 

substantially incapable of appraising 

the act, declining participation, or 

communicating unwillingness. 

(i) That the accused engaged in a 

sexual act with another person, who is 

of any age; and 

(Note: add one of the following 

elements) 

(ii) That the other person was 

substantially incapacitated; 

(iii) That the other person was 

substantially incapable of appraising the 

nature of the sexual act; 

(iv) That the other person was 

substantially incapable of declining 

participation in the sexual act; or 

(v) That the other person was 

substantially incapable of 

communicating unwillingness to engage 

in the sexual act. 

(4) Aggravated sexual assault of a 

child who has attained the age of 12 

years but has not attained the age of 16 

years. 

(a) That the accused engaged in a 

sexual act with a child; and 

(b) That at the time of the sexual act 

the child had attained the age of 12 

years but had not attained the age of 16 

years. 

(5) Aggravated sexual contact. 

(a) Aggravated sexual contact by 

using force. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by using 

force against that other person. 


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(b) Aggravated sexual contact by 

causing grievous bodily harm. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by 

causing grievous bodily harm to any 

person. 

(c) Aggravated sexual contact by 

using threats or placing in fear. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by 

threatening or placing that other person 

in fear that any person will be subjected 

to death, grievous bodily harm, or 

kidnapping. 

(d) Aggravated sexual contact by 

rendering another unconscious. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by 

rendering that other person 

unconscious. 

(e) Aggravated sexual contact by 

administration of drug, intoxicant, or 

other similar substance. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii)(a) That the accused did so by 

administering to that other person a 

drug, intoxicant, or other similar 

substance; 

(b) That the accused administered the 

drug, intoxicant, or other similar 

substance by force or threat of force or 

without the knowledge or permission of 

that other person; and 

(c) That, as a result, that other 

person’s ability to appraise or control 

conduct was substantially impaired. 

(6) Aggravated sexual abuse of a 

child. 

(a) That the accused engaged in a 

lewd act; and 

(b) That the act was committed with 

a child who has not attained the age of 

16 years. 

(7) Aggravated Sexual Contact with a 

Child. 

(a) Aggravated sexual contact with a 

child who has not attained the age of 12 

years. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had not attained the 

age of twelve years. 

(b) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by using force. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years; and 

(iv) That the accused did so by using 

force against that child. 

(c) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by causing grievous bodily harm. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years; and 

(iv) That the accused did so by 

causing grievous bodily harm to any 

person. 

(d) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by using threats or placing in fear. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years; and 

(iv) That the accused did so by 

threatening or placing that child or that 

other person in fear that any person will 

be subjected to death, grievous bodily 

harm, or kidnapping. 

(e) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by rendering another or that child 

unconscious. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years; and 

(iv) That the accused did so by 

rendering that child or that other person 

unconscious. 

(f) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by administration of drug, 

intoxicant, or other similar substance. 

(i) That the accused engaged in sexual 

contact with a child; or 

(ii) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(iii) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years; and 

(iv)(a) That the accused did so by 

administering to that child or that other 

person a drug, intoxicant, or other 

similar substance; 

(b) That the accused administered the 

drug, intoxicant, or other similar 

substance by force or threat of force or 

without the knowledge or permission of 

that child or that other person; and 

(c) That, as a result, that child’s or 

that other person’s ability to appraise or 

control conduct was substantially 

impaired. 

(8) Abusive sexual contact. 

(a) Abusive sexual contact by using 

threats or placing in fear. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by 

threatening or placing that other person 

in fear that any person would be 

subjected to bodily harm or other harm 

(other than by threatening or placing 

that other person in fear that any person 

would be subjected to death, grievous 

bodily harm, or kidnapping). 

(b) Abusive sexual contact by causing 

bodily harm. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(iii) That the accused did so by 

causing bodily harm to another person. 

(c) Abusive sexual contact upon a 

person substantially incapacitated or 

substantially incapable of appraising 

the act, declining participation, or 

communicating unwillingness. 

(i) That the accused engaged in sexual 

contact with another person; or 

(ii) That the accused caused sexual 

contact with or by another person; and 

(Note: Add one of the following 

elements): 

(iii) That the other person was 

substantially incapacitated; 

(iv) That the other person was 

substantially incapable of appraising the 

nature of the sexual contact; 

(v) That the other person was 

substantially incapable of declining 

participation in the sexual contact; or 

(vi) That the other person was 

substantially incapable of 

communicating unwillingness to engage 

in the sexual contact. 

(9) Abusive sexual contact with a 

child. 


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(a) That the accused engaged in sexual 

contact with a child; or 

(b) That the accused caused sexual 

contact with or by a child or by another 

person with a child; and 

(c) That at the time of the sexual 

contact the child had attained the age of 

12 years but had not attained the age of 

16 years. 

(10) Indecent liberty with a child. 

(a) That the accused committed a 

certain act or communication; 

(b) That the act or communication 

was indecent; 

(c) That the accused committed the 

act or communication in the physical 

presence of a certain child; 

(d) That the child was under 16 years 

of age; and 

(e) That the accused committed the 

act or communication with the intent to: 

(i) arouse, appeal to, or gratify the 

sexual desires of any person; or 

(ii) abuse, humiliate, or degrade any 

person. 

(11) Indecent act. 

(a) That the accused engaged in 

certain conduct; and 

(b) That the conduct was indecent 

conduct. 

(12) Forcible pandering. 

(a) That the accused compelled a 

certain person to engage in an act of 

prostitution; and 

(b) That the accused directed another 

person to said person, who then 

engaged in an act of prostitution. 

(13) Wrongful sexual contact. 

(a) That the accused had sexual 

contact with another person; 

(b) That the accused did so without 

that other person’s permission; and 

(c) That the accused had no legal 

justification or lawful authorization for 

that sexual contact. 

(14) Indecent exposure. 

(a) That the accused exposed his or 

her genitalia, anus, buttocks, or female 

areola or nipple; 

(b) That the accused’s exposure was 

in an indecent manner; 

(c) That the exposure occurred in a 

place where the conduct involved could 

reasonably be expected to be viewed by 

people other than the accused’s family 

or household; and 

(d) That the exposure was intentional. 

c. Explanation. 

(1) Definitions. The terms are defined 

in ¶ 45a(t), supra. 

(2) Character of victim. See Military 

Rule of Evidence 412 concerning rules 

of evidence relating to the character of 

the victim of an alleged sexual offense. 

(3) Indecent. In conduct cases, 

‘‘Indecent’’ generally signifies that form 

of immorality relating to sexual 

impurity which is not only grossly 

vulgar, obscene, and repugnant to 

common propriety, but also tends to 

excite lust and deprave the morals with 

respect to sexual relations. Language is 

indecent if it tends reasonably to 

corrupt morals or incite libidinous 

thoughts. The language must violate 

community standards. 

d. Lesser included offenses. The 

following lesser included offenses are 

based on internal cross-references 

provided in the statutory text of Article 

120. See subsection (e) for or a further 

listing of possible LIOs. 

(1) Rape. 

(a) Article 120—aggravated sexual 

contact. 

(b) Article 134—assault with intent to 

commit rape. 

(c) Article 128—aggravated assault, 

assault, assault consummated by a 

battery. 

(d) Article 80—attempts. 

(2) Rape of a Child. 

(a) Article 120—aggravated sexual 

contact with a child; indecent act. 

(b) Article 134—assault with intent to 

commit rape. 

(c) Article 128—aggravated assault; 

assault; assault consummated by a 

battery; assault consummated by a 

battery upon a child under 16. 

(d) Article 80—attempts. 

(3) Aggravated Sexual Assault. 

(a) Article 120—abusive sexual 

contact. 

(b) Article 128—aggravated assault, 

assault, assault consummated by a 

battery. 

(c) Article 80—attempts. 

(4) Aggravated Sexual Assault of a 

Child. 

(a) Article 120—abusive sexual 

contact with a child; indecent act. 

(b) Article 128—aggravated assault; 

assault; assault consummated by a 

battery; assault consummated by a 

battery upon a child under 16. 

(c) Article 80—attempts. 

(5) Aggravated Sexual Contact. 

(a) Article 128—aggravated assault; 

assault; assault consummated by a 

battery. 

(b) Article 80—attempts. 

(6) Aggravated Sexual Abuse of a 

Child. 

(a) Article 120—indecent act. 

(b) Article 128—assault; assault 

consummated by a battery; assault 

consummated by a battery upon a child 

under 16. 

(c) Article 80—attempts. 

(7) Aggravated Sexual Contact with a 

Child. 

(a) Article 120—indecent act. 

(b) Article 128—assault; assault 

consummated by a battery; assault 

consummated by a battery upon a child 

under 16. 

(c) Article 80—attempts. 

(8) Abusive Sexual Contact. 

(a) Article 128—assault; assault 

consummated by a battery. 

(b) Article 80—attempts. 

(9) Abusive Sexual Contact with a 

Child. 

(a) Article 120—indecent act. 

(b) Article 128—assault; assault 

consummated by a battery; assault 

consummated by a battery upon a child 

under 16. 

(c) Article 80—attempts. 

(10) Indecent Liberty with a Child. 

(a) Article 120—indecent act. 

(b) Article 80—attempts. 

(11) Indecent Act. Article 80 attempts. 

(12) Forcible Pandering. Article 80 

attempts. 

(13) Wrongful Sexual Contact. Article 

80 attempts. 

(14) Indecent Exposure. Article 80 

attempts. 

e. Additional Lesser Included 

Offenses. Depending on the factual 

circumstances in each case, to include 

the type of act and level of force 

involved, the following offenses may be 

considered lesser included in addition 

to those offenses listed in subsection d. 

(See subsection (d) for a listing of the 

offenses that are specifically crossreferenced within the statutory text of 

Article 120.) The elements of the 

proposed lesser included offense should 

be compared with the elements of the 

greater offense to determine if the 

elements of the lesser offense are 

derivative of the greater offense and vice 

versa. See Appendix 23 for further 

explanation of lesser included offenses. 

(1)(a) Rape by using force. Article 

120—indecent act; wrongful sexual 

contact. 

(1)(b) Rape by causing grievous bodily 

harm. Article 120 aggravated sexual 

assault by causing bodily harm; abusive 

sexual contact by causing bodily harm; 

indecent act; wrongful sexual contact. 

(1)(c) Rape by using threats or placing 

in fear. Article 120 aggravated sexual 

assault by using threats or placing in 

fear; abusive sexual contact by using 

threats or placing in fear; indecent act; 

wrongful sexual contact. 

(1)(d) Rape by rendering another 

unconscious. Article 120 aggravated 

sexual assault upon a person 

substantially incapacitated; abusive 

sexual contact upon a person 

substantially incapacitated; indecent 

act; wrongful sexual contact. 

(1)(e) Rape by administration of drug, 

intoxicant, or other similar substance. 

Article 120 aggravated sexual assault 

upon a person substantially 

incapacitated; abusive sexual contact 

upon a person substantially 

incapacitated; indecent act; wrongful 

sexual contact. 


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45788 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 

(2)(a)–(f) Rape of a Child who has not 

attained 12 years; Rape of a child who 

has attained the age of 12 years but has 

not attained the age of 16 years. Article 

120—aggravated sexual assault of a 

child; aggravated sexual abuse of a 

child; abusive sexual contact with a 

child; indecent liberty with a child; 

wrongful sexual contact. 

(3) Aggravated Sexual Assault. Article 

120—wrongful sexual contact; indecent 

act. 

(4) Aggravated Sexual Assault of a 

Child. Article 120—aggravated sexual 

abuse of a child; indecent liberty with 

a child; wrongful sexual contact. 

(5)(a) Aggravated Sexual Contact by 

force. Article 120—indecent act; 

wrongful sexual contact. 

(5)(b) Aggravated Sexual Contact by 

causing grievous bodily harm. Article 

120—abusive sexual contact by causing 

bodily harm; indecent act; wrongful 

sexual contact. 

(5)(c) Aggravated Sexual Contact by 

using threats or placing in fear. Article 

120—abusive sexual contact by using 

threats or placing in fear; indecent act; 

wrongful sexual contact. 

(5)(d) Aggravated Sexual Contact by 

rendering another unconscious. Article 

120 abusive sexual contact upon a 

person substantially incapacitated; 

indecent act; wrongful sexual contact. 

(5)(e) Aggravated Sexual Contact by 

administration of drug, intoxicant, or 

other similar substance. Article 120 

abusive sexual contact upon a person 

substantially incapacitated; indecent 

act; wrongful sexual contact. 

(6) Aggravated Sexual Abuse of a 

Child. Article 120—aggravated sexual 

contact with a child; aggravated sexual 

abuse of a child; indecent liberty with 

a child; wrongful sexual contact. 

(7) Aggravated Sexual Contact with a 

Child. Article 120—abusive sexual 

contact with a child; indecent liberty 

with a child; wrongful sexual contact. 

(8) Abusive Sexual Contact. Article 

120—wrongful sexual contact; indecent 

act. 

(9) Abusive Sexual Contact with a 

Child. Article 120—indecent liberty 

with a child; wrongful sexual contact. 

(10) Indecent Liberty with a Child. 

Article 120—wrongful sexual contact. 

f. Maximum punishment. 

(1) Rape and Rape of a Child. Death 

or such other punishment as a court 

martial may direct. 

(2) Aggravated Sexual Assault. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 30 years. 

(3) Aggravated Sexual Assault of a 

Child who has attained the age of 12 

years but has not attained the age of 16 

years, Aggravated Sexual Abuse of a 

Child, Aggravated Sexual Contact, and 

Aggravated Sexual Contact with a Child. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 20 years. 

(4) Abusive Sexual Contact with a 

Child and Indecent Liberty with a Child. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 15 years. 

(5) Abusive Sexual Contact. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 7 years. 

(6) Indecent Act or Forcible 

Pandering. Dishonorable discharge, 

forfeiture of all pay and allowances, and 

confinement for 5 years. 

(7) Wrongful Sexual Contact or 

Indecent Exposure. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

g. Sample specifications. 

(1) Rape. 

(a) Rape by using force. 

(i) Rape by use or display of 

dangerous weapon or object. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

cause ll to engage in a sexual act, to 

wit: ll, by (using a dangerous weapon 

or object, to wit: ll against (him)(her)) 

(displaying a dangerous weapon or 

object, to wit: ll to (him)(her)). 

(ii) Rape by suggestion of possession 

of dangerous weapon or object. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

cause ll to engage in a sexual act, to 

wit: ll, by the suggestion of 

possession of a dangerous weapon or an 

object that was used in a manner to 

cause (him)(her) to believe it was a 

dangerous weapon or object. 

(iii) Rape by using physical violence, 

strength, power, or restraint to any 

person. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

cause ll to engage in a sexual act, to 

wit:ll, by using (physical violence) 

(strength) (power) (restraint applied to 

ll), sufficient that (he)(she) could not 

avoid or escape the sexual conduct. 

(b) Rape by causing grievous bodily 

harm. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

cause ll to engage in a sexual act, to 

wit: ll, by causing grievous bodily 

harm upon (him)(her)(ll), to wit: a 

(broken leg)(deep cut)(fractured 

skull)(ll). 

(c) Rape by using threats or placing in 

fear. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

cause to engage in a sexual act, to wit: 

ll, by [threatening] [placing 

(him)(her) in fear] that (he)(she) (ll) 

will be subjected to (death) (grievous 

bodily harm) (kidnapping) by ll. 

(d) Rape by rendering another 

unconscious. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, cause ll to engage in a sexual 

act, to wit: ll, by rendering (him)(her) 

unconscious. 

(e) Rape by administration of drug, 

intoxicant, or other similar substance. In 

that ll (personal jurisdiction data), 

did (at/on board—location) (subjectmatter jurisdiction data, if required), on 

or about ll 20 ll, cause ll to 

engage in a sexual act, to wit: ll, by 

administering to (him)(her) a drug, 

intoxicant, or other similar substance, 

(by force) (by threat of force) (without 

(his)(her) knowledge or permission), 

and thereby substantially impaired 

(his)(her) ability to [(appraise) 

(control)][(his)(her)] conduct. 

(2) Rape of a child. 

(a) Rape of a child who has not 

attained the age of 12 years. In that ll 

(personal jurisdiction data), did (at/on 

board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, engage in a sexual 

act, to wit: ll with ll, a child who 

had not attained the age of 12 years. 

(b) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by using force. 

(i) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by use or display of 

dangerous weapon or object. In that 

ll (personal jurisdiction data), did (at/ 

on board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, engage in a sexual 

act, to wit: ll, with ll, a child who 

had attained the age of 12 years, but had 

not attained the age of 16 years, by 

(using a dangerous weapon or object, to 

wit: ll against (him)(her)) (displaying 

a dangerous weapon or object, to wit: 

ll to (him)(her)). 

(ii) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by suggestion of 

possession of dangerous weapon or 

object. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45789 

data, if required), on or about ll 20 

ll, engage in a sexual act, to wit: ll, 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years, by the suggestion of 

possession of a dangerous weapon or an 

object that was used in a manner to 

cause (him)(her) ll to believe it was 

a dangerous weapon or object. 

(iii) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by using physical 

violence, strength, power, or restraint to 

any person. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, engage in a sexual act, to wit: ll 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years, by using (physical 

violence) (strength) (power) (restraint 

applied to ll) sufficient that (he)(she) 

could not avoid or escape the sexual 

conduct. 

(c) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by causing grievous 

bodily harm. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, engage in a sexual act, to wit: ll, 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years, by causing grievous 

bodily harm upon (him)(her) (ll), to 

wit: a (broken leg) (deep cut) (fractured 

skull) (ll). 

(d) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by using threats or 

placing in fear. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, engage in a sexual act, to wit: ll, 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years, by [threatening] [placing 

(him)(her) in fear] that (he)(she) (ll) 

would be subjected to (death) (grievous 

bodily harm) (kidnapping) by ll. 

(e) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by rendering that 

child unconscious. In that ll 

(personal jurisdiction data), did (at/on 

board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, engage in a sexual 

act, to wit: ll, with ll, a child who 

had attained the age of 12 years, but had 

not attained the age of 16 years, by 

rendering (him)(her) unconscious. 

(f) Rape of a child who has attained 

the age of 12 years but has not attained 

the age of 16 years by administration of 

drug, intoxicant, or other similar 

substance. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, engage in a sexual act, to wit: ll, 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years, by administering to 

(him)(her) a drug, intoxicant, or other 

similar substance (by force) (by threat of 

force) (without (his)(her) knowledge or 

permission), and thereby substantially 

impaired (his)(her) ability to [(appraise) 

(control)][(his)(her)] conduct. 

(3) Aggravated sexual assault. 

(a) Aggravated sexual assault by using 

threats or placing in fear. In that ll 

(personal jurisdiction data), did (at/on 

board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, cause to engage in 

a sexual act, to wit: ll, by 

[threatening][placing(him)(her) in fear 

of] [(physical injury to ll) (injury to 

ll’s property) (accusation of crime) 

(exposition of secret) (abuse of military 

position) (ll)]. 

(b) Aggravated sexual assault by 

causing bodily harm. In that ll 

(personal jurisdiction data), did (at/on 

board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, cause to engage in 

a sexual act, to wit: ll, by causing 

bodily harm upon (him)(her) (ll), to 

wit: ll. 

(c) Aggravated sexual assault upon a 

person substantially incapacitated or 

substantially incapable of appraising 

the act, declining participation, or 

communicating unwillingness. In that 

ll (personal jurisdiction data), did (at/ 

on board—location) (subject-matter 

jurisdiction data, if required), on or 

about ll 20 ll, engage in a sexual 

act, to wit: ll with ll, who was 

(substantially incapacitated) 

[substantially incapable of (appraising 

the nature of the sexual act)(declining 

participation in the sexual act) 

(communicating unwillingness to 

engage in the sexual act)]. 

(4) Aggravated sexual assault of a 

child who has attained the age of 12 

years but has not attained the age of 16 

years. In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

engage in a sexual act, to wit: ll with 

ll, who had attained the age of 12 

years, but had not attained the age of 16 

years. 

(5) Aggravated sexual contact. 

(a) Aggravated sexual contact by 

using force. 

(i) Aggravated sexual contact by use 

or display of dangerous weapon or 

object. In that ll (personal 

jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction 

data, if required), on or about ll 20 

ll, [(engage in sexual contact, to wit: 

ll with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by (using a dangerous 

weapon or object, to wit: ll against 

(him)(her)) (displaying a dangerous 

weapon or object, to wit: ll to 

(him)(her)). 

(ii) Aggravated sexual contact by 

suggestion of possession of dangerous 

weapon or object. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by the suggestion of 

possession of a dangerous weapon or an 

object that was used in a manner to 

cause (him)(her) (ll) to believe it was 

a dangerous weapon or object. 

(iii) Aggravated sexual contact by 

using physical violence, strength, power, 

or restraint to any person. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause to engage in sexual 

contact, to wit: ll, with ll) (cause 

sexual contact with or by ll, to wit: 

ll)] by using (physical violence) 

(strength) (power) (restraint applied to 

ll), sufficient that (he)(she) (ll) 

could not avoid or escape the sexual 

conduct. 

(b) Aggravated sexual contact by 

causing grievous bodily harm. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by causing grievous bodily 

harm upon (him)(her) (ll), to wit: a 

(broken leg) (deep cut) (fractured skull) 

(ll). 

(c) Aggravated sexual contact by 

using threats or placing in fear. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by [(threatening (him)(her) 


rwilkins on PROD1PC61 with NOTICES
45790 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 

(ll)] [(placing(him)(her) (ll) in fear] 

that (he)(she) (ll) will be subjected to 

(death) (grievous bodily harm) 

(kidnapping) by ll. 

(d) Aggravated sexual contact by 

rendering another unconscious. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: 

llwith ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by rendering (him)(her) 

(ll) unconscious. 

(e) Aggravated sexual contact by 

administration of drug, intoxicant, or 

other similar substance. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by administering to 

(him)(her) (ll) a drug, intoxicant, or 

other similar substance, (by force) (by 

threat of force) (without (his)(her) (ll) 

knowledge or permission), and thereby 

substantially impaired (his)(her) (ll) 

ability to [(appraise) (control)] [(his) 

(her)] conduct. 

(6) Aggravated sexual abuse of a 

child. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

engage in a lewd act, to wit: ll with 

ll, a child who had not attained the 

age of 16 years. 

(7) Aggravated sexual contact with a 

child. 

(a) Aggravated sexual contact with a 

child who has not attained the age of 12 

years. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years, to wit: 

ll)]. 

(b) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by using force. 

(i) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by use or display of dangerous 

weapon or object. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20 ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years) (cause ll to engage in 

sexual contact, to wit: ll, with ll, 

a child who had attained the age of 12 

years, but had not attained the age of 16 

years) (cause sexual contact with or by 

ll, a child who had attained the age 

of 12 years, but had not attained the age 

of 16 years, to wit: ll)] by (using a 

dangerous weapon or object, to wit: ll 

against (him)(her) (ll)) (displaying a 

dangerous weapon or object, to wit: ll 

to (him)(her) (ll)). 

(ii) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by suggestion of possession of 

dangerous weapon or object. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had attained the 

age of 12 years, but had not attained the 

age of 16 years) (cause ll to engage in 

sexual contact, to wit: ll, with ll, 

a child who had attained the age of 12 

years, but had not attained the age of 16 

years) (cause sexual contact with or by 

ll, a child who had attained the age 

of 12 years, but had not attained the age 

of 16 years, to wit: ll)] by the 

suggestion of possession of a dangerous 

weapon or an object that was used in a 

manner to cause (him) (her) (ll) to 

believe it was a dangerous weapon or 

object. 

(iii) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by using physical violence, 

strength, power, or restraint to any 

person. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years, but had 

not attained the age of 16 years, to wit: 

ll)] by using (physical violence) 

(strength) (power) (restraint applied to 

ll) sufficient that (he) (she) (ll) 

could not avoid or escape the sexual 

conduct. 

(c) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by causing grievous bodily harm. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years, but had 

not attained the age of 16 years, to wit: 

ll)] by causing grievous bodily harm 

upon (him) (her) (ll), to wit: a (broken 

leg) (deep cut) (fractured skull) (ll). 

(d) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by using threats or placing in fear. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years, but had 

not attained the age of 16 years, to wit: 

ll)] by [threatening] [placing (him) 

(her) (ll) in fear] that (he) (she) (ll) 

will be subjected to (death) (grievous 

bodily harm) (kidnapping) by ll. 

(e) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by rendering that child or another 

unconscious. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years, but had not attained 

the age of 16 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years, but had 

not attained the age of 16 years, to wit: 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45791 

ll)] by rendering (him) (her) (ll) 

unconscious. 

(f) Aggravated sexual contact with a 

child who has attained the age of 12 

years but has not attained the age of 16 

years by administration of drug, 

intoxicant, or other similar substance. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had not attained 

the age of 12 years but had not attained 

the age of 16 years) (cause ll to 

engage in sexual contact, to wit: ll, 

with ll, a child who had not attained 

the age of 12 years but had not attained 

the age of 16 years) (cause sexual 

contact with or by ll, a child who had 

not attained the age of 12 years but had 

not attained the age of 16 years, to wit: 

ll)] by administering to (him) (her) 

(ll) a drug, intoxicant, or other 

similar substance (by force) (by threat of 

force) (without (his) (her) (ll) 

knowledge or permission), and thereby 

substantially impaired (his) (her) (ll) 

ability to [(appraise) (control)] [(his) 

(her)] conduct. 

(8) Abusive sexual contact. 

(a) Abusive sexual contact by using 

threats or placing in fear. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by [(threatening) (placing 

(him) (her) (ll) in fear of)] [(physical 

injury to ll) (injury to ll’s property) 

(accusation of crime) (exposition of 

secret) (abuse of military position) 

(ll)]. 

(b) Abusive sexual contact by causing 

bodily harm. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] by causing bodily harm upon 

(him) (her) (ll), to wit: (ll). 

(c) Abusive sexual contact by 

engaging in a sexual act with a person 

substantially incapacitated or 

substantially incapable of appraising 

the act, declining participation, or 

substantially incapable of 

communicating unwillingness. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll) (cause ll to engage in 

sexual contact, to wit: ll, with ll) 

(cause sexual contact with or by ll, to 

wit: ll)] while (he) (she) (ll) was 

[substantially incapacitated] 

[substantially incapable of (appraising 

the nature of the sexual contact) 

(declining participation in the sexual 

contact) (communicating unwillingness 

to engage in the sexual contact)]. 

(9) Abusive sexual contact with a 

child. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

[(engage in sexual contact, to wit: ll 

with ll, a child who had attained the 

age of 12 years but had not attained the 

age of 16 years) (cause ll to engage in 

sexual contact, to wit: ll, with ll, 

a child who had attained the age of 12 

years but had not attained the age of 16 

years) (cause sexual contact with or by 

ll, a child who had attained the age 

of 12 years but had not attained the age 

of 16 years, to wit: ll)]. 

(10) Indecent liberties with a child. 

In that ll (personal jurisdiction 

data), did, (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, (take 

indecent liberties) (engage in indecent 

conduct) in the physical presence of 

ll, a (female) (male) under 16 years of 

age, by (communicating the words: to 

wit: ll) (exposing one’s private parts, 

to wit: ll) (ll), with the intent to 

[(arouse) (appeal to) (gratify) the (sexual 

desire) of the ll (or ll)] [(abuse) 

(humiliate) (degrade) ll]. 

(11) Indecent act. 

In that ll (personal jurisdiction 

data), did (at/on board—location) 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

wrongfully commit indecent conduct, to 

wit ll. 

(12) Forcible pandering. 

In that ll (personal jurisdiction 

data), did (at/on board—location), 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

compel ll to engage in [(a sexual act) 

(sexual contact) (lewd act), to wit: ll] 

for the purpose of receiving money or 

other compensation with ll (a) 

person(s) to be directed to (him) (her) by 

the said ll. 

(13) Wrongful sexual contact. 

In that ll (personal jurisdiction 

data), did (at/on board—location), 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

engage in sexual contact with ll, to 

wit: ll, and such sexual contact was 

without legal justification or lawful 

authorization and without the 

permission of ll. 

(14) Indecent exposure. 

In that ll (personal jurisdiction 

data), did (at/on board—location), 

(subject-matter jurisdiction data, if 

required), on or about ll 20ll, 

intentionally (expose in an indecent 

manner (his) (her) (ll) (ll) while (at 

the barracks window) (in a public place) 

(ll). 

(e) Paragraph 50, Art. 124, Maiming, 

paragraph (e) is amended to read: 

e. Maximum Punishment. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 20 years. 

(f) Paragraph 51, Article 125, Sodomy, 

paragraph (d) is amended by deleting 

the following lesser included offenses 

under paragraph (d)(1)(b); (d)(2)(c); and 

(d)(3)(a): 

(d)(1)(b) Article 134 indecent acts 

with a child under 16. 

(d)(2)(c) Article 134 indecent assault. 

(d)(3)(a) Article 134 indecent acts 

with another. 

(g) Paragraph 51, Article 125, 

paragraph (d) is amended by adding at 

the end of paragraph d: 

[Note: Consider lesser included offenses 

under Art. 120 depending on the factual 

circumstances in each case.] 

(h) Paragraph 54, Art. 128, Assault, 

paragraph (b)(4)(a) is amended to read: 

(4) Aggravated Assault. 

(a) Assault with a dangerous weapon 

or other means of force likely to produce 

death or grievous bodily harm. 

(i) That the accused attempted to do, 

offered to do, or did bodily harm to a 

certain person; 

(ii) That the accused did so with a 

certain weapon, means, or force; 

(iii) That the attempt, offer, or bodily 

harm was done with unlawful force or 

violence; and 

(iv) That the weapon, means, or force 

was used in a manner likely to produce 

death or grievous bodily harm. 

(Note: Add any of the following as 

applicable.) 

(v) That the weapon was a loaded 

firearm. 

(vi) That the person was a child under 

the age of 16 years. 

(i) Paragraph 54, Art. 128, Assault, 

paragraph (b)(4)(b) is amended to read: 

(4) Aggravated Assault. 

(b) Assault in which grievous bodily 

harm is intentionally inflicted. 

(i) That the accused assaulted a 

certain person; 

(ii) That grievous bodily harm was 

thereby inflicted upon such person; 

(iii) That the grievous bodily harm 

was done with unlawful force or 

violence; and 


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45792 Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 

(iv) That the accused, at the time, had 

the specific intent to inflict grievous 

bodily harm. 

(Note: Add any of the following as 

applicable.) 

(v) That the injury was inflicted with 

a loaded firearm. 

(vi) That the person was a child under 

the age of 16 years. 

(j) Paragraph 54, Art. 128, Assault, 

paragraph (c)(4)(a) is amended by 

adding new paragraph (c)(4)(a)(v) after 

(c)(4)(a)(iv): 

(4) Aggravated Assault. 

(a) Assault with a dangerous weapon 

or other means or force likely to produce 

death or grievous bodily harm. 

(v) When committed upon a child 

under 16 years of age. The maximum 

punishment is increased when 

aggravated assault with a dangerous 

weapon or means likely to produce 

death or grievous bodily harm is 

inflicted upon a child under 16 years of 

age. Knowledge that the person 

assaulted was under the age of 16 years 

is not an element of the offense. 

(k) Paragraph 54, Art. 128, Assault, 

paragraph (c)(4)(b) is amended by 

adding new paragraph (c)(4)(b)(iv): 

(4) Aggravated Assault. 

(b) Assault in which grievous bodily 

harm is intentionally inflicted. 

(iv) When committed upon a child 

under 16 years of age. The maximum 

punishment is increased when 

aggravated assault with intentional 

infliction of grievous bodily harm is 

inflicted upon a child under 16 years of 

age. Knowledge that the person 

assaulted was under the age of 16 years 

is not an element of the offense. 

(l) Paragraph 54, Art. 128, Assault, 

paragraph (d)(6) is amended to read: 

d. Lesser included offenses. 

(6) Assault with a dangerous weapon 

or other means or force likely to produce 

death or grievous bodily harm. Article 

128 simple assault; assault 

consummated by a battery; (when 

committed upon a child under the age 

of 16 years—assault consummated by a 

battery upon a child under the age of 16 

years). 

(m) Paragraph 54, Art. 128, Assault, 

paragraph (d)(7) is amended to read: 

d. Lesser included offenses. 

(7) Assault in which grievous bodily 

harm is intentionally inflicted. Article 

128 simple assault; assault 

consummated by a battery; assault with 

a dangerous weapon; (when committed 

upon a child under the age of 16 years—

assault consummated by a battery upon 

a child under the age of 16 years). 

(n) Paragraph 54, Art. 128, Assault, 

paragraph (e)(8) is amended to read: 

e. Maximum punishment. 

(8) Aggravated assault with a 

dangerous weapon or other means of 

force to produce death or grievous 

bodily harm. 

After current (a), change (b) as follows 

below and current (b) becomes (c): 

(b) Aggravated assault with a 

dangerous weapon or other means of 

force to produce death or grievous 

bodily harm when committed upon a 

child under the age of 16 years. 

Dishonorable discharge, total 

forfeitures, and confinement for 5 years. 

(o) Paragraph 54, Art. 128, Assault, 

paragraph (e)(9) is amended to read: 

e. Maximum punishment. 

(9) Aggravated assault in which 

grievous bodily harm is intentionally 

inflicted. 

After current (a), change (b) as follows 

below and current (b) becomes (c): 

(b) Aggravated assault in which 

grievous bodily harm is intentionally 

inflicted when committed upon a child 

under the age of 16 years. Dishonorable 

discharge, total forfeitures, and 

confinement for 8 years. 

(p) Paragraph 54, Art. 128, Assault, 

paragraph (f)(8) is amended to read: 

f. Sample specifications. 

(8) Assault, Aggravated with a 

dangerous weapon, means or force. 

In that ll (personal jurisdiction 

data), did, (at/on board location)(subject 

matter jurisdiction data, if required), on 

or about ll 20ll, commit an assault 

upon ll (a child under the age of 16 

years) by (shooting) (pointing) (striking) 

(cutting) (ll) (at him/her) (him/her) 

(in) (on)(thell) with (a dangerous 

weapon) a (means) (force) likely to 

produce death or grievous bodily harm), 

to wit: A (loaded firearm) (pickax) 

(bayonet) (club) (ll). 

(q) Paragraph 54, Art. 128, Assault, 

paragraph (f)(8) is amended to read: 

f. Sample specifications. 

(9) Assault, aggravated inflicting 

grievous bodily harm. 

In that ll (personal jurisdiction 

data), did, (at/on board location) 

(subject matter jurisdiction data, if 

required), on or about ll 20ll, 

commit an assault upon (a child under 

the age of 16 years) by (shooting) 

(striking)(cutting) (ll) (him/her) (on) 

the with a (loaded firearm) (club) (rock) 

(brick) (ll and did thereby 

intentionally inflict grievous bodily 

harm upon him/her, to wit: A (broken 

leg) (deep cut)(fractured skull) (ll). 

(r) Paragraph 64, Article 134 Assault 

w/intent to commit murder, voluntary, 

manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking, 

paragraph (c)(4), 1st sentence, is 

amended to read: 

(c)(4) Assault with intent to commit 

rape. In assault with intent to commit 

rape, the accused must have intended to 

complete the offense. 

(s) Paragraph 64, Article 134 Assault 

w/intent to commit murder, voluntary, 

manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking, is 

amended by deleting the following 

lesser included offense under paragraph 

(d)(3)(b): 

(d)(3)(b) Article 134 indecent assault. 

(t) New paragraph 68a, Article 134—

(Child Endangerment) is inserted: 

68a. Article 134—(Child Endangerment) 

a. Text. See paragraph 60. 

b. Elements. 

Child Endangerment 

(1) That the accused had a duty for 

the care of a certain child; 

(2) That the child was under the age 

of 16 years; 

(3) That the accused endangered the 

child’s mental or physical health, safety, 

or welfare through design or culpable 

negligence; 

and 

(4) That, under the circumstances, the 

conduct of the accused was to the 

prejudice of good order and discipline 

in the armed forces or was of a nature 

to bring discredit upon the armed 

forces. 

c. Explanation. 

(1) In general. This offense is intended 

to prohibit and therefore deter child 

endangerment through design or 

culpable negligence. 

(2) Design. Design means on purpose, 

intentionally, or according to plan and 

requires specific intent to endanger the 

child. 

(3) Culpable negligence. Culpable 

negligence is a degree of carelessness 

greater than simple negligence. It is a 

negligent act or omission accompanied 

by a culpable disregard for the 

foreseeable consequences to others of 

that act or omission. In the context of 

this offense, culpable negligence may 

include acts that, when viewed in the 

light of human experience, might 

foreseeably result in harm to a child, 

even though such harm would not 

necessarily be the natural and probable 

consequences of such acts. In this 

regard, the age and maturity of the 

child, the conditions surrounding the 

neglectful conduct, the proximity of 

assistance available, the nature of the 

environment in which the child may 

have been left, the provisions made for 

care of the child, and the location of the 

parent or adult responsible for the child 

relative to the location of the child, 

among others, may be considered in 

determining whether the conduct 

constituted culpable negligence. 

(4) Harm. Actual physical or mental 

harm to the child is not required. The 

offense requires that the accused’s 


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Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45793 

actions reasonably could have caused 

physical or mental harm or suffering. 

However, if the accused’s conduct does 

cause actual physical or mental harm, 

the potential maximum punishment 

increases. See Paragraph 54(c)(4)(a)(iii) 

for an explanation of ‘‘grievous bodily 

harm’’. 

(4) Endanger. ‘‘Endanger’’ means to 

subject one to reasonable probability of 

harm. 

(5) Age of victim as a factor. While 

this offense may be committed against 

any child under 16, the age of the victim 

is a factor in the culpable negligence 

determination. Leaving a teenager alone 

for an evening may not be culpable (or 

even simple) negligence; leaving an 

infant or toddler for the same period 

might constitute culpable negligence. 

On the other hand, leaving a teenager 

without supervision for an extended 

period while the accused was on 

temporary duty outside commuting 

distance might constitute culpable 

negligence. 

(6) Duty required. The duty of care is 

determined by the totality of the 

circumstances and may be established 

by statute, regulation, legal parent-child 

relationship, mutual agreement, or 

assumption of control or custody by 

affirmative act. When there is no duty of 

care of a child, there is no offense under 

this paragraph. Thus, there is no offense 

when a stranger makes no effort to feed 

a starving child or an individual/ 

neighbor not charged with the care of a 

child does not prevent the child from 

running and playing in the street. 

d. Lesser included offenses. 

(1) Child Endangerment by Design. 

Article 134—Child Endangerment by 

culpable negligence. 

Article 80—Attempts. 

e. Maximum punishment. 

i. Endangerment by design resulting 

in grievous bodily harm. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 8 

years. 

ii. Endangerment by design resulting 

in harm. Dishonorable discharge, 

forfeiture of all pay and allowances, and 

confinement for 5 years. 

iii. Other cases by design. 

Dishonorable discharge, forfeiture of all 

pay and allowances and confinement 

for 4 years. 

iv. Endangerment by culpable 

negligence resulting in grievous bodily 

harm. Dishonorable discharge, forfeiture 

of all pay and allowances, and 

confinement for 3 years. 

v. Endangerment by culpable 

negligence resulting in harm. Badconduct discharge, forfeiture of all pay 

and allowances, and confinement for 2 

years. 

vi. Other cases by culpable 

negligence. Bad-conduct discharge, 

forfeiture of all pay and allowances, and 

confinement for 1 year. 

f. Sample specification. 

i. Resulting in grievous bodily harm. 

In that ll (personal jurisdiction 

data), (at/on board-location) (subject 

matter jurisdiction data, if required) on 

or about ll, 20 ll, had a duty for 

the care of ll, a child under the age 

of 16 years and did endanger the 

(mental health) (physical health) (safety) 

(welfare) of said ll, by (leaving the 

said ll unattended in his quarters for 

over ll hours/days with no adult 

present in the home) (by failing to 

obtain medical care for the said lll’s 

diabetic condition) (ll), and that such 

conduct (was by design)(constituted 

culpable negligence) (which resulted in 

grievous bodily harm, to wit:) (broken 

leg) (deep cut) (fractured skull) (ll)). 

ii. Resulting in harm. 

In that lll (personal jurisdiction 

data), (at/on board-location) (subject 

matter jurisdiction data, if required) on 

or about lll, 20 ll, had a duty for 

the care of lll, a child under the age 

of 16 years, and did endanger the 

(mental health) (physical health) 

(safety) (welfare) of said lll, by 

(leaving the said lll unattended in 

his quarters for over ll hours/days 

with no adult present in the home) (by 

failing to obtain medical care for the 

said lll’s diabetic condition) 

(lll), and that such conduct (was by 

design) (constituted culpable 

negligence)(which resulted in (harm, to 

wit:) (a black eye) (bloody nose) (minor 

cut) (lll)). 

iii. Other cases. 

In that lll (personal jurisdiction 

data), (at/on board-location)(subject 

matter jurisdiction data, if required) on 

or about lll, 20 ll, was 

responsible for the care of lll, a 

child under the age of 16 years, and did 

endanger the (mental health) (physical 

health) (safety) (welfare) of said lll, 

by (leaving the said lll unattended 

in his quarters for over ll hours/days 

with no adult present in the home) (by 

failing to obtain medical care for the 

said lll’s diabetic condition) 

(lll), and that such conduct (was by 

design) (constituted culpable 

negligence). 

(u) Paragraph 63, Article 134 Assault, 

Indecent is deleted. 

(v) Paragraph 87, Indecent acts or 

liberties with a child is deleted. 

(w) Paragraph 88, Indecent Exposure 

is deleted. 

(x) Paragraph 90, Indecent acts with 

another is deleted. 

(y) Paragraph 89, Indecent language, 

paragraph (c), is amended to read: 

c. Explanation. ‘‘Indecent’’ language 

is that which is grossly offensive to 

modesty, decency, or propriety, or 

shocks the moral sense, because of its 

vulgar, filthy, or disgusting nature, or its 

tendency to incite lustful thought. 

Language is indecent if it tends 

reasonably to corrupt morals or incite 

libidinous thoughts. The language must 

violate community standards. See 

paragraph 45 if the communication was 

made in the physical presence of a 

child. 

ll(u) Paragraph 97. Article 134 

Pandering and Prostitution is amended 

by deleting ‘‘compel’’ throughout 

subsection (b)(2) to read: 

b. Elements 

(2) Pandering by inducing, enticing, or 

procuring act of prostitution. 

(a) That the accused induced, enticed, 

or procured a certain person to engage 

in an act of sexual intercourse for hire 

and reward with a person to be directed 

to said person by the accused; 

(b) That this inducing, enticing, or 

procuring was wrongful; 

(c) That, under the circumstances, the 

conduct of the accused was to the 

prejudice of good order and discipline 

in the armed forces or was of a nature 

to bring discredit upon the armed 

forces. 

(v) Paragraph 97. Article 134 

Pandering and Prostitution is amended 

by deleting ‘‘compel’’ throughout the 

subtitle and subsection (f)(2) to read: 

(2) Inducing, enticing, or procuring 

act of prostitution. 

In that lll (personal jurisdiction 

data), did (at/on board-location) 

(subject-matter jurisdiction data, if 

required), on or about lll 20 ll, 

wrongfully (induce) (entice) (procure) 

ll to engage in (an act) (acts) of 

(sexual intercourse for hire and reward) 

with persons to be directed to him/her 

by the said lll. 

These amendments shall take effect 

on [30 days after signature]. 

(a) Nothing in these amendments 

shall be construed to make punishable 

any act done or omitted prior to [30 

days after signature] that was not 

punishable when done or omitted. 

(b) Nothing in these amendments 

shall be construed to invalidate any 

nonjudicial punishment proceedings, 

restraint, investigation, referral of 

charges, trial in which arraignment 

occurred, or other action begun prior to 

[30 days after signature], and any such 

nonjudicial punishment, restraint, 

investigation, referral of charges, trial, or 

other action may proceed in the same 

manner and with the same effect as if 

these amendments had not been 

prescribed. 


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

Changes to the Discussion 

Accompanying the Manual for Courts 

Martial, United States 

(a) Amend the Discussion 

accompanying R.C.M. 810(d) to read as 

follows: 

‘‘The trier of fact is not bound by the 

sentence previously adjudged or 

approved at a rehearing. The members 

should not be advised of the sentence 

limitation under this rule. See R.C.M. 

1005(e)(1). An appropriate sentence on 

a retried or reheard offense should be 

adjudged without regard to any credit to 

which the accused may be entitled. See 

R.C.M. 103(2) and R.C.M. 103(3) as to 

when a rehearing may be a capital 

case.’’

(b) Insert the following new 

Discussion section after R.C.M. 916(j): 

Discussion 

The statutory text of Article 120(r) 

specifically limits the affirmative 

defense for mistake of fact as to consent 

to Article 120(a) rape, Article 120(c) 

aggravated sexual assault, Article 120(e) 

aggravated sexual contact, and Article 

120(h) abusive sexual contact. For all 

other offenses under Article 120, 

consent is not an issue and mistake of 

fact as to consent is not an affirmative 

defense. 

(c) Amend the Discussion 

accompanying R.C.M. 916 (j)(2) in the 

3rd paragraph, 1st sentence, to read: 

Examples of offenses in which the 

accused’s intent or knowledge is 

immaterial include: Rape of a child, 

aggravated sexual contact with a child, 

or indecent liberty with a child (if the 

victim is under 12 years of age, 

knowledge or belief as to age is 

immaterial). 

(d) Amend the Discussion 

accompanying R.C.M. 917(c) by adding 

the following sentence after the last 

sentence in the Discussion: 

‘‘See R.C.M. 1102 (b)(2) for military 

judge’s authority, upon motion or sua 

sponte, to enter finding of not guilty 

after findings but prior to authentication 

of the record.’’

(d) Amend the Discussion 

accompanying R.C.M. 1005(e)(1) to read 

as follows: 

‘‘The maximum punishment that may 

be adjudged is the lowest of the total 

permitted by the applicable 

paragraph(s) in Part IV for each 

separate offense of which the accused 

was convicted (see also R.C.M. 1003 

concerning additional limits on 

punishments and additional 

punishments which may be adjudged) 

or the jurisdictional limit of the courtmartial (see R.C.M. 201(f) and R.C.M. 

1301(d)). See also discussion to R.C.M. 

810(d). The military judge may upon 

request or when otherwise appropriate 

instruct on lesser punishments. See 

R.C.M. 1003. If an additional 

punishment is authorized under R.C.M. 

1003(d), the members must be informed 

of the basis for the increased 

punishment. 

‘‘A carefully drafted sentence 

worksheet ordinarily should be used 

and should include reference to all 

authorized punishments in the case.’’

(e) A Discussion accompanying 

R.C.M. 1107(f)(5)(A) is inserted to read 

as follows: 

‘‘In approving a sentence not in 

excess of or more severe than one 

previously approved (see R.C.M. 810(d)), 

a convening authority is prohibited from 

approving a punitive discharge more 

severe than one formerly approved, e.g., 

a convening authority is prohibited from 

approving a dishonorable discharge if a 

bad conduct discharge had formerly 

been approved. Otherwise, in approving 

a sentence not in excess of or more 

severe than one previously imposed, a 

convening authority is not limited to 

approving the same or lesser type of 

’other punishments’ formerly 

approved.’’

Changes to Appendix 12, Maximum 

Punishment Chart 

Appendix 12 is amended as follows: 

Amend Article 120 by deleting the 

following: 

Rape 

Carnal Knowledge 

With child at least 12 

With child under the age of 12 

Amend Article 120 by inserting the following: 

Rape and Rape of a Child ........................................................................................... Death, DD, BCD ...... Life .......................... Total. 

Aggravated Sexual Assault ......................................................................................... DD, BCD ................. 30 yrs ...................... Total. 

Aggravated Sexual Assault of 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 

death or grievous bodily harm when committed upon a child under the age of 

16 years.

DD, BCD ................. 5 yrs ........................ Total. 

Aggravated assault in which grievous bodily harm is intentionally inflicted 

when committed upon a child under the age of 16 years.

DD, BCD ................. 8 yrs ........................ Total. 

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. 

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 

Rules for Courts Martial 

(a) Amend the Analysis 

accompanying R.C.M. 916(b) by 

inserting the following paragraph at the 

end thereof: 

200 Amendment. Changes to this 

paragraph, deleting ‘‘carnal 

knowledge’’, are based on section 552 of 

the National Defense Authorization Act 

for Fiscal Year 2006, Public Law 109–

163, 6 January 2006, which supersedes 

the previous paragraph 45, Rape and 

Carnal Knowledge, in its entirety and 

replaces paragraph 45 with Rape, 

sexual assault and other sexual 

misconduct. 

(b) Amend the Analysis 

accompanying R.C.M. 916(j)(2) by 

inserting the following paragraph at the 

end thereof: 

200 Amendment. Changes to this 

paragraph, deleting ‘‘carnal knowledge’’

and consistent language, are based on 

section 552 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, 6 January 2006, 

which supersedes the previous 

paragraph 45, Rape and Carnal 

Knowledge, in its entirety and replaces 

paragraph 45 with Rape, sexual assault 

and other sexual misconduct. 

(c) Insert a new Analysis section to 

accompany new subparagraph R.C.M. 

916(j)(3) at the end of the analysis 

discussing subsection RCM 916(j) : 

200 Amendment. This paragraph is 

new and is based on the mistake of fact 

defense incorporated in section 552 of 

the National Defense Authorization Act 

for Fiscal Year 2006, Public Law 109–

163, 6 January 2006, which supersedes 

the previous paragraph 45, Rape and 

Carnal Knowledge, in its entirety and 

replaces paragraph 45 with Rape, 

sexual assault and other sexual 

misconduct. 

(d) Amend the Analysis 

accompanying R.C.M. 920(e) by 

inserting the following paragraph at the 

end thereof: 

200 Amendment. Changes to this 

paragraph, deleting ‘‘carnal knowledge’’

and consistent language, are based on 

section 552 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, 6 January 2006, 

which supersedes the previous 

paragraph 45, Rape and Carnal 

Knowledge, in its entirety and replaces 

paragraph 45 with Rape, sexual assault 

and other sexual misconduct. 

(e) Amend the Analysis 

accompanying R.C.M. 1004(c) by 

inserting the following paragraph at the 

end thereof : 

200 Amendment. Changes to this 

paragraph adding sexual offenses other 

than rape are based on subsection (d) of 

section 552 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, 6 January 2006, 

which supersedes the previous 

paragraph 45, Rape and Carnal 

Knowledge, in its entirety and replaces 

paragraph 45 with Rape, sexual assault 

and other sexual misconduct. 

(f) Amend the analysis accompanying 

R.C.M. 1102(d) by inserting the 

following paragraph at the end thereof: 

200 Amendment. For purposes of 

this rule, the list of appropriate 

reviewing authorities included in the 

1994 amendment includes any court 

authorized to review cases on appeal 

under the UCMJ. 

Changes to Appendix 22, Analysis of 

the Military Rules of Evidence 

(a) Amend the Analysis 

accompanying MRE 412, Relevance of 

alleged victim’s sexual behavior or 

sexual predisposition, by inserting the 

following paragraph at the end thereof: 

200 Amendment. This amendment 

is intended to aid practitioners in 

applying the balancing test of MRE 412. 

Specifically, the amendment clarifies: 

(1) That under MRE 412, the evidence 

must be relevant for one of the purposes 

highlighted in subdivision (b); (2) that in 

conducting the balancing test, the 

inquiry is whether the probative value of 

the evidence outweighs the danger of 

unfair prejudice to the victim’s privacy; 

and (3) that even if the evidence is 

admissible under MRE 412, it may still 

be excluded under MRE 403. The 

proposed changes highlight current 

practice. See U.S. v. Banker, 60 M.J. 216, 

223 (2004) (Citing ‘‘It would be illogical 

if the judge were to evaluate evidence 

‘offered by the accused’ for unfair 

prejudice to the accused. Rather, in the 

context of this rape shield statute, the 

prejudice in question is, in part, that to 

the privacy interests of the alleged 

victim. Sanchez, 44 M.J. at 178 (‘‘[I]n 

determining admissibility there must be 

a weighing of the probative value of the 

evidence against the interest of 

shielding the victim’s privacy.’’).’’

Moreover, the amendment clarifies 

that MRE 412 applies in all cases 

involving a sexual offense wherein the 

person against whom the evidence is 

offered can reasonably be characterized 

as a ‘‘victim of the alleged sexual 

offense.’’ Thus, the rule applies to: 

‘‘consensual sexual offense’’, 

‘‘nonconsensual sexual offenses’’; 

sexual offenses specifically proscribed 

under the UCMJ, e.g., rape, aggravated 

sexual assault, etc.; those federal sexual 

offenses DoD is able to prosecute under 

clause 3 of Article 134, U.C.M.J., e.g., 18 

U.S.C. § 2252A (possession of child 

pornography); and state sexual offenses 

DoD is able to assimilate under the 

Federal Assimilative Crimes Act (18 

U.S.C. 13). 

(b) Amend the analysis accompanying 

M.R.E. 503(b) by inserting the following 

paragraph at the end thereof: 

‘‘200 Amendment: The previous 

subsection (2) of MRE 503(b) was 

renumbered subsection (3) and the new 

subsection (2) was inserted to define the 

term ‘‘clergyman’s assistant.’’

(c) Amend the Analysis 

accompanying M.R.E. 504 by inserting 

the following paragraph at the end 

thereof: 

‘‘200 Amendment: (d) Definition. 

Rule 504(d) modifies the rule and is 

intended to afford additional protection 

to children. Previously, the term ‘‘a 

child of either,’’ referenced in Rule 

504(c)(2)(A), did not include a ‘‘de 

facto’’ child or a child who is under the 

physical custody of one of the spouses 

but lacks a formal legal parent-child 

relationship with at least one of the 

spouses. See U.S. v. McCollum, 58 M.J. 

323 (C.A.A.F. 2003). Prior to this 

amendment, an accused could not 

invoke the spousal privilege to prevent 

disclosure of communications regarding 

crimes committed against a child with 

whom he or his spouse had a formal, 

legal parent-child relationship; however, 

the accused could invoke the privilege 

to prevent disclosure of 

communications where there was not a 

formal, legal parent-child relationship. 

This distinction between legal and ‘‘de 

facto’’ children resulted in unwarranted 

discrimination among child victims and 

ran counter to the public policy of 

protecting children. Rule 504(d) 

recognizes the public policy of 

protecting children by addressing 

disparate treatment among child victims 

entrusted to another. The ‘‘marital 

communications privilege * * * should 

not prevent a ‘properly outraged spouse 

with knowledge from testifying against a 

perpetrator’ of child abuse within the 

home regardless of whether the child is 

part of that family.’’ U.S. v. McCollum, 

58 M.J. 323, 342, fn.6 (C.A.A.F. 2003) 

(citing U.S. v. Bahe, 128 F.3d 1440, 1446 

(10th Cir. 1997)). 


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

Changes to Appendix 23, Analysis of 

Punitive Articles 

(a) The Analysis accompanying 

Article 118, Murder, is amended by 

inserting the following: 

43. Article 118 Murder 

a. Text. 

b. Elements. 

200 Amendment. Paragraph (4) of 

the text and elements has been 

amended for consistency with the 

changes to Article 118 under section 

552 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, 6 January 2006. 

See subsection (d) of Section 552. 

(b) The Analysis accompanying 

Article 119, Manslaughter, is amended 

by inserting the following: 

44. Article 119 Manslaughter 

b. Elements. 

200 Amendment. Paragraph (4) of 

the elements has been amended for 

consistency with the changes to Article 

118 under section 552 of the National 

Defense Authorization Act for Fiscal 

Year 2006, Public Law 109–163, 6 

January 2006. See subsection (d) of 

Section 552. 

(c) The Analysis accompanying 

Article 120, Rape, Sexual Assault, and 

other Sexual Misconduct, is amended 

by inserting the following: 

45. Article 120 Rape, Sexual Assault, 

and other Sexual Misconduct 

200 Amendment. Changes to this 

paragraph are contained in Div. A. Title 

V. Subtitle E, section 552(a)(1) of the 

National Defense Authorization Act for 

Fiscal Year 2006, Public Law 109–163, 

119 Stat. 3257 (6 January 2006), which 

supersedes the previous paragraph 45, 

Rape and Carnal Knowledge, in its 

entirety and replaces paragraph 45 with 

Rape, sexual assault and other sexual 

misconduct. In accordance with section 

552(c) of that Act, Public Law 109 163, 

119 Stat. 3263, the amendment to the 

Article applies only with respect to 

offenses committed on or after 1 

October 2007. 

Nothing in these amendments 

invalidates any nonjudicial punishment 

proceeding, restraint, investigation, 

referral of charges, trial in which 

arraignment occurred, or other action 

begun prior to 1 October 2007. Any such 

nonjudical punishment proceeding, 

restraint, investigation, referral of 

charges, trial in which arraignment 

occurred, or other action may proceed 

in the same manner and with the same 

effect as if these amendments had not 

been prescribed. 

This new Article 120 consolidates 

several sexual misconduct offenses and 

is generally based on the Sexual Abuse 

Act of 1986, 18 U.S.C. Sections 2241–

2245. The following is a list of offenses 

that have been replaced by this new 

paragraph 45: 

(1) Paragraph 63, 134 Assault—

Indecent, has been replaced in its 

entirety by three new offenses under 

paragraph 45. See subsections (e) 

Aggravated Sexual Contact, (h) Abusive 

Sexual Contact, and (m) Wrongful 

Sexual Contact. 

(2) Paragraph 87, 134 Indecent Acts 

or Liberties with a Child, has been 

replaced in its entirety by three new 

offenses under paragraph 45. See 

subsections (g) Aggravated Sexual 

Contact with a Child, (i) Abusive Sexual 

Contact with a Child, and (j) Indecent 

Liberty with a Child. 

(3) Paragraph 88, Article 134

Indecent Exposure, has been replaced in 

its entirety by a new offense under 

paragraph 45. See subsection (n) 

Indecent Exposure. 

(4) Paragraph 90, Article 134

Indecent Acts with Another, has been 

replaced in its entirety by a new offense 

under paragraph 45. See subsection (k) 

Indecent Act. 

(5) Paragraph 97, Article 134

Pandering and Prostitution, has been 

amended. The act of compelling another 

person to engage in an act of 

prostitution with another person will no 

longer be an offense under paragraph 97 

and has been replaced by a new offense 

under paragraph 45. See subsection (l), 

Forcible Pandering. 

c. Explanation. Subparagraph (3), 

definition of ‘‘indecent’’, is taken from 

paragraphs 89.c and 90.c of the Manual 

(2005 ed.) and is intended to 

consolidate the definitions of 

‘‘indecent,’’ as used in the former 

offenses under Article 134 of ‘‘Indecent 

acts or liberties with a child,’’ ‘‘Indecent 

exposure,’’ and ‘‘Indecent acts with 

another,’’ formerly at paragraphs 87, 88, 

and 90 of the 2005 Manual, and 

‘‘Indecent language,’’ at paragraph 89. 

The application of this single definition 

of ‘‘indecent’’ to the offenses of 

‘‘Indecent liberty with a child,’’

‘‘Indecent act,’’ and ‘‘Indecent 

exposure’’ under Article 120 is 

consistent with the construction given to 

the former Article 134 offenses in the 

2005 Manual that were consolidated 

into Article 120. See e.g. United States 

v. Negron, 60 M.J. 136 (C.A.A.F. 2004). 

e. Additional Lesser Included 

Offenses. The test to determine whether 

an offense is factually the same as 

another offense, and therefore lesserincluded to that offense, is the 

‘‘elements’’ test. United States v. Foster, 

40 M.J. 140, 142 (C.M.A.1994). Under 

this test, the court considers ‘‘whether 

each provision requires proof of a fact 

which the other does not.’’ Blockburger, 

284 U.S. at 304, 52 S.Ct. 180. Rather 

than adopting a literal application of 

the elements test, the Court stated that 

resolution of lesser-included claims 

‘‘can only be resolved by lining up 

elements realistically and determining 

whether each element of the supposed 

’lesser’ offense is rationally derivative of 

one or more elements of the other 

offense—and vice versa.’’ Foster, 40 M.J. 

at 146. Whether an offense is a lesserincluded offense is a matter of law that 

the Court will consider de novo. United 

States v. Palagar, 56 M.J. 294, 296 

(C.A.A.F. 2002). 

f. Maximum punishment. See 1995 

Amendment regarding maximum 

punishment of death. 

(d) The analysis accompanying 

Article 124, Maiming, is amended by 

inserting the following at the end of 

current analysis paragraph: 

e. Maximum punishment. 200

amendment. The maximum punishment 

for the offense of maiming was 

increased from 7 years confinement to 

20 years confinement, consistent with 

the federal offense of maiming, 18 

U.S.C. 114. 

(e) The Analysis accompanying 

Article 125, Sodomy, is amended by 

inserting the following: 

d. Lesser included offenses. 

200 Amendment. 

The former Paragraph 87, (1)(b), 

Article 134 Indecent Acts or Liberties 

with a Child has been replaced in its 

entirety by paragraph 45. 

The former Paragraph 63, (2)(c), 

Article 134 Assault—Indecent, has been 

replaced in its entirety by paragraph 45. 

The former Paragraph 90(3)(a), Article 

134 Indecent Acts with Another, has 

been replaced in its entirety by 

paragraph 45. 

Lesser included offenses under Article 

120 should be considered depending on 

the factual circumstances in each cases. 

(f) The analysis to Article 128, 

Assault, is amended by inserting the 

following at the end of current analysis 

paragraph: 

e. Maximum punishment. 200

amendment. The maximum 

punishments for some aggravated 

assault offenses were established to 

recognize the increased severity of such 

offenses when children are the victims. 

These maximum punishments are 

consistent with the maximum 

punishments of the Article 134 offense 

of Child Endangerment, established in 

200. 

(g) The Analysis accompanying 

Article 134, Assault indecent, is 

amended by inserting the following: 


rwilkins on PROD1PC61 with NOTICES
Federal Register / Vol. 71, No. 154 / Thursday, August 10, 2006 / Notices 45797 

63. Article 134 Assault-Indecent 

200 Amendment. This paragraph 

has been replaced in its entirety by 

paragraph 45. See Article 120 (e) 

Aggravated Sexual Contact, (h) Abusive 

Sexual Contact, and (m) Wrongful 

Sexual Contact. 

(h) The Analysis accompanying 

Article 134-Assault-with intent to 

commit murder, voluntary 

manslaughter, rape, robbery, sodomy, 

arson, burglary, or housebreaking, is 

amended by inserting the following: 

64. Article 134 Assault-With Intent to 

Commit Murder, Voluntary 

Manslaughter, Rape, Robbery, Sodomy, 

Arson, Burglary, or Housebreaking 

200 Amendment. This paragraph 

has been amended for consistency with 

the changes to Article 118 under section 

552 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, 6 January 2006. 

See subsection (d) of Section 552. (i) The analysis to Article 134 is 

amended by inserting the following: 

68a. Article 134 (Child Endangerment) 

200 Amendment. This offense is 

new to the Manual for Courts Martial. 

Child neglect was recognized in U.S. v. 

Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It 

is based on military custom and 

regulation as well as a majority of state 

statutes and captures the essence of 

child neglect, endangerment, and abuse. 

(j) The Analysis accompanying Article 

134-Indecent acts with a child, is 

amended by inserting the following: 

87. Article 134 Indecent Acts With a 

Child 

200 Amendment. This paragraph 

has been replaced in its entirety by 

paragraph 45. See Article 120(g) 

Aggravated Sexual Contact with a Child, 

(i) Abusive Sexual Contact with a Child, 

and (j) Indecent Liberty with Child. 

(k) The Analysis accompanying 

Article 134-Indecent Exposure is 

amended by inserting the following: 

88. Article 134 Indecent Exposure 

200 Amendment. This paragraph 

has been replaced in its entirety by 

paragraph 45. See Article 120(n) 

Indecent Exposure. 

(l) The Analysis accompanying 

Article 134-Indecent Exposure is 

amended by inserting the following: 

88. Article 134 Indecent Exposure 

200 Amendment. This paragraph 

has been replaced in its entirety by 

paragraph 45. See Article 120(n) 

Indecent Exposure. 

(j) The Analysis accompanying Article 

134-Pandering and Prostitution is 

amended by inserting the following: 

97. Article 134 Pandering and 

Prostitution 

200 Amendment. This paragraph 

has been amended. The act of 

compelling another person to engage in 

an act of prostitution with another 

person will no longer be punished under 

paragraph 97 and has been replaced by 

a new offense under paragraph 45. See 

Article 120(l) Forcible Pandering. 

Dated: August 4, 2006. 

L.M. Bynum, 

OSD Federal Register Liaison Officer, DoD. 

[FR Doc. 06–6817 Filed 8–9–06; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF EDUCATION 

Notice of Proposed Information 

Collection Requests 

AGENCY: Department of Education. 

ACTION: Notice of Proposed Information 

Collection Requests. 

SUMMARY: The IC Clearance Official, 

Regulatory Information Management 

Services, Office of Management, invites 

comments on the proposed information 

collection requests as required by the 

Paperwork Reduction Act of 1995. 

DATES: An emergency review has been 

requested in accordance with the Act 

(44 U.S.C. Chapter 3507 (j)), since 

public harm is reasonably likely to 

result if normal clearance procedures 

are followed. Approval by the Office of 

Management and Budget (OMB) has 

been requested by August 17, 2006. 

ADDRESSES: Written comments 

regarding the emergency review should 

be addressed to the Office of 

Information and Regulatory Affairs, 

Attention: Rachel Potter, Desk Officer, 

Department of Education, Office of 

Management and Budget; 725 17th 

Street, NW., Room 10222, New 

Executive Office Building, Washington, 

DC 20503 or faxed to (202) 395–6974. 

SUPPLEMENTARY INFORMATION: Section 

3506 of the Paperwork Reduction Act of 

1995 (44 U.S.C. Chapter 35) requires 

that the Director of OMB provide 

interested Federal agencies and the 

public an early opportunity to comment 

on information collection requests. The 

Office of Management and Budget 

(OMB) may amend or waive the 

requirement for public consultation to 

the extent that public participation in 

the approval process would defeat the 

purpose of the information collection, 

violate State or Federal law, or 

substantially interfere with any agency’s 

ability to perform its statutory 

obligations. The IC Clearance Official, 

Regulatory Information Management 

Services, Office of Management, 

publishes this notice containing 

proposed information collection 

requests at the beginning of the 

Departmental review of the information 

collection. Each proposed information 

collection, grouped by office, contains 

the following: (1) Type of review 

requested, e.g., new, revision, extension, 

existing or reinstatement; (2) Title; (3) 

Summary of the collection; (4) 

Description of the need for, and 

proposed use of, the information; (5) 

Respondents and frequency of 

collection; and (6) Reporting and/or 

Recordkeeping burden. ED invites 

public comment. 

The Department of Education is 

especially interested in public comment 

addressing the following issues: (1) Is 

this collection necessary to the proper 

functions of the Department; (2) will 

this information be processed and used 

in a timely manner, (3) is the estimate 

of burden accurate; (4) how might the 

Department enhance the quality, utility, 

and clarity of the information to be 

collected, and (5) how might the 

Department minimize the burden of this 

collection on respondents, including 

through the use of information 

technology. 

Dated: August 8, 2006. 

Angela C. Arrington, 

IC Clearance Official, Regulatory Information 

Management Services, Office of Management. 

Office of Postsecondary Education 

Type of Review: New. 

Title: Hurricane Education Recovery 

Awards. 

Abstract: The Emergency 

Supplemental Appropriations Act for 

Defense, the Global War on Terror and 

Hurricane Recovery, 2006 (Pub. L. 109–

234) provides $50 million in awards to 

institutions of higher education, as 

defined in section 102 of the HEA, that 

are located in an area in which a major 

disaster was declared in accordance 

with section 401 of the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act related to hurricanes in 

the Gulf of Mexico in calendar year 

2005, and that were forced to close, 

relocate or significantly curtail their 

activities as a result of damage directly 

caused by the hurricanes. These 

Hurricane Education Recovery Awards 

can only be used to defray expenses, 

including expenses that would have 

been covered by revenue lost as a direct 

result of a hurricane, expenses already 

incurred, and construction expenses 

directly related to damage resulting 

from the hurricanes. 


rwilkins on PROD1PC61 with NOTICES