Vol. 77 Tuesday, 

No. 205 October 23, 2012 

Part II 

Defense Department 

Manual for Courts-Martial; Proposed Amendments; Notice 


tkelley on DSK3SPTVN1PROD with NOTICES
64854 Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[Docket ID DoD–2012–OS–0129] 

Manual for Courts-Martial; Proposed 

Amendments 

AGENCY: Joint Service Committee on 

Military Justice (JSC), DoD. 

ACTION: Notice of Proposed 

Amendments to the Manual for CourtsMartial, United States (2012 ed.) and 

Notice of Public Meeting. 

SUMMARY: The Department of Defense is 

proposing changes to the Manual for 

Courts-Martial, United States (2012 ed.) 

(MCM). The proposed changes concern 

the rules of procedure and evidence and 

the punitive articles applicable in trials 

by courts-martial. These proposed 

changes have not been coordinated 

within the Department of Defense under 

DoD Directive 5500.1, ‘‘Preparation, 

Processing and Coordinating 

Legislation, Executive Orders, 

Proclamations, Views Letters and 

Testimony,’’ June 15, 2007, 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 a public meeting 

of the JSC to discuss the proposed 

changes. 

This notice is provided in accordance 

with DoD Directive 5500.17, ‘‘Role and 

Responsibilities of the Joint Service 

Committee (JSC) on Military Justice,’’ 

May 3, 2003. 

This notice is intended only to 

improve the internal management of the 

Federal Government. It is not intended 

to create any right or benefit, 

substantive or procedural, enforceable at 

law by any party against the United 

States, its agencies, its officers, or any 

person. 

The committee also invites members 

of the public to suggest changes to the 

Manual for Courts-Martial; address 

specific recommended changes, and 

supporting rationale. 

DATES: Comments on the proposed 

changes must be received no later than 

60 days from publication in the register. 

A public meeting for comments will be 

held on December 11, 2012, at 10 a.m. 

in the 14th Floor Conference Room, 

1777 N. Kent St., Rosslyn, VA 22209– 

2194. 

ADDRESSES: You may submit comments, 

identified by docket number and title, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

East Tower, Suite 02G09, Alexandria, 

VA 22350–3100. 

Instructions: All submissions received 

must include the agency name and 

docket number for this Federal Register 

document. The general policy for 

comments and other submissions from 

members of the public is to make these 

submissions available for public 

viewing on the Internet at http:// 

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: LTC 

Christopher Kennebeck, Chief, Policy 

Branch, Criminal Law Division, OTJAG, 

Room 3B548, Washington, DC 20301, 

571.256.8136, email 

usarmy.pentagon.hqda-otjag.mbx.jscpublic-comments@mail.mil. 

SUPPLEMENTARY INFORMATION: The 

proposed amendments to the MCM are 

as follows: 

Annex 

Section 1. Part I of the Manual for CourtsMartial, United States, is amended as 

follows: 

(a) Paragraph 4 is amended to read as 

follows: 

‘‘The Manual for Courts-Martial shall 

consist of this Preamble, the Rules for CourtsMartial, the Military Rules of Evidence, the 

Punitive Articles, and Nonjudicial 

Punishment Procedures (Part I–V). This 

Manual shall be applied consistent with the 

purpose of military law. 

The Manual shall be identified by the year 

in which it was printed; for example, 

‘‘Manual for Courts-Martial, United States 

(20xx edition).’’ Any amendments to the 

Manual made by Executive Order shall be 

identified as ‘‘20xx’’ Amendments to the 

Manual for Courts-Martial, United States, 

‘‘20xx’’ being the year the Executive Order 

was signed. 

The Department of Defense Joint Service 

Committee (JSC) on Military Justice reviews 

the Manual for Courts-Martial and proposes 

amendments to the Department of Defense 

for consideration by the President on an 

annual basis. In conducting its annual 

review, the JSC is guided by DoD Directive 

5500.17, ‘‘The Roles and Responsibilities of 

the Joint Service Committee (JSC) on Military 

Justice.’’ DoD Directive 5500.17 includes 

provisions allowing public participation in 

the annual review process.’’ 

Sec. 2. Part II of the Manual for CourtsMartial, United States, is amended as 

follows: 

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

follows: 

‘‘(c) Contempt. A judge detailed to a courtmartial may punish for contempt any person 

who uses any menacing word, sign, or 

gesture in the presence of the judge during 

the proceedings of the court-martial; disturbs 

the proceedings of the court-martial by any 

riot or disorder; or willfully disobeys the 

lawful writ, process, order, rule, decree, or 

command of the court-martial. The 

punishment may not exceed confinement for 

30 days or a fine of $1,000, or both.’’ 

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

follows: 

‘‘(3) Specification. A specification is a 

plain, concise, and definite statement of the 

essential facts constituting the offense 

charged. A specification is sufficient if it 

alleges every element of the charged offense 

expressly or by necessary implication; 

however, specifications under Article 134 

must expressly allege the terminal element. 

Except for aggravating factors under R.C.M 

1003(d) and R.C.M. 1004, facts that increase 

the maximum authorized punishment must 

be alleged in order to permit the possible 

increased punishment. No particular format 

is required.’’ 

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

follows: 

‘‘(4) Multiple offenses. Charges and 

specifications alleging all known offenses by 

an accused may be preferred at the same 

time. Each specification shall state only one 

offense. What is substantially one transaction 

should not be made the basis for an 

unreasonable multiplication of charges 

against one person. Unreasonable 

multiplication of charges is addressed in 

R.C.M. 906(b)(12); multiplicity is addressed 

in R.C.M. 907(b)(3)(B); and punishment 

limitations are addressed in R.C.M. 

1003(c)(1)(C).’’ 

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

follows: 

‘‘(10) Have evidence, including documents 

or physical evidence, produced as provided 

under subsection (g) of this rule;’’ 

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

as follows: 

‘‘(B) Evidence. Subject to Mil. R. Evid., 

Section V, evidence, including documents or 

physical evidence, which is relevant to the 

investigation and not cumulative, shall be 

produced if reasonably available. Such 

evidence includes evidence requested by the 

accused, if the request is timely and in 

compliance with this rule. As soon as 

practicable after receipt of a request by the 

accused for information which may be 

protected under Mil. R. Evid. 505 or 506, the 

investigating officer shall notify the person 

who is authorized to issue a protective order 

under subsection (g)(6) of this rule, and the 

convening authority, if different. Evidence is 

reasonably available if its significance 

outweighs the difficulty, expense, delay, and 

effect on military operations of obtaining the 

evidence.’’ 

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

as follows: 

‘‘(C) Evidence generally. The investigating 

officer shall make an initial determination 

whether evidence is reasonably available. If 

the investigating officer decides that it is not 

reasonably available, the investigating officer 

shall inform the parties.’’ 

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

as follows: 

‘‘(i) Evidence under the control of the 

Government. Upon the investigating officer’s 

determination that evidence is reasonably 

available, the custodian of the evidence shall 


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be requested to provide the evidence. A 

determination by the custodian that the 

evidence is not reasonably available is not 

subject to appeal by the accused, but may be 

reviewed by the military judge under R.C.M. 

906(b)(3).’’ 

(h) R.C.M. 405(g)(2)(C)(ii) is inserted to 

read as follows: 

‘‘(ii) Evidence not under the control of the 

Government. Evidence not under the control 

of the Government may be obtained through 

noncompulsory means or by subpoena duces 

tecum issued pursuant to procedures set 

forth in R.C.M. 703(f)(4)(B). A determination 

by the investigating officer that the evidence 

is not reasonably available is not subject to 

appeal by the accused, but may be reviewed 

by the military judge under R.C.M. 

906(b)(3).’’ 

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

‘‘(i) Military Rules of Evidence. The 

Military Rules of Evidence do not apply in 

pretrial investigations under this rule except 

as follows: 

(1) Military Rules of Evidence 301, 302, 

303, 305, and Section V shall apply in their 

entirety. 

(2) Military Rule of Evidence 412 

subsections (a) and (b) shall apply in any 

case defined as a sexual offense in Mil. R. 

Evid. 412(d). 

(A) Evidence generally inadmissible. 

Evidence described in Mil. R. Evid. 412(a) 

offered under any theory other than one 

enumerated in Mil. R. Evid. 412(b) is 

inadmissible. The investigating officer must 

note the exclusion of such evidence and the 

basis upon which it was offered in the 

investigating officer’s report. An investigating 

officer who is not a judge advocate must seek 

legal advice from an impartial source 

concerning the admissibility, handling, and 

reporting of any such evidence. 

(B) Procedure to determine admissibility. 

With respect to any evidence offered under 

a theory described in Mil. R. Evid. 412(b), the 

investigating officer must make a 

determination as to admissibility, as follows: 

(i) Notice. A party intending to offer 

evidence under Mil. R. Evid. 412(b) must 

serve written notice on counsel representing 

the United States and the investigating officer 

at least 5 days prior to the date of the pretrial 

investigation that specifically describes the 

evidence and states the Mil. R. Evid. 412(b) 

purpose for which it is to be offered, unless 

the investigating officer, for good cause 

shown, sets a different time. 

(ii) Victim notice. The investigating officer 

must notify the victim or, when appropriate, 

the victim’s guardian or representative, or 

ensure that the notification is accomplished 

by the counsel representing the United 

States. 

(iii) Hearing. Before admitting evidence 

under this rule, the investigating officer must 

conduct a closed hearing. The hearing must 

not take place prior to the accused’s R.C.M. 

405(f) rights advisement, but may otherwise 

occur during the normal course of the 

investigation. At the hearing, the parties may 

call witnesses, including the victim, and offer 

relevant evidence. R.C.M. 405(g) continues to 

apply during this hearing. The victim must 

be afforded a reasonable opportunity to 

attend and be heard. If the victim is 

unavailable within the meaning of R.C.M. 

405(g)(1), the alternatives to testimony 

enumerated in R.C.M. 405(g)(4)(B) are 

available, including a sworn statement 

created for the purpose of the hearing. 

(iv) Order. If the investigating officer 

determines on the basis of the hearing 

described in subsection (2)(B)(iii) that the 

evidence the accused seeks to offer is 

relevant for a purpose under Mil. R. Evid. 

412(b), and that the probative value of such 

evidence outweighs the danger of unfair 

prejudice, such evidence shall be admissible 

in the pretrial investigation. The 

investigating officer must specify the 

evidence that may be offered and the areas 

with respect to which the victim or witness 

may be questioned.’’ 

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

follows: 

‘‘(2) Contents. The report of investigation 

shall include: 

(C) Any other statements, documents, or 

matters considered by the investigating 

officer, or recitals of the substance or nature 

of such evidence, including any findings 

made or documents admitted pursuant to 

subsection (i)(2)(B)(iv)’’ (k) R.C.M. 

703(e)(2)(B) is amended to read as follows: 

‘‘(B) Contents. A subpoena shall state the 

command by which the proceeding is 

directed, and the title, if any, of the 

proceeding. A subpoena shall command each 

person to whom it is directed to attend and 

give testimony at the time and place 

specified therein. A subpoena may also 

command the person to whom it is directed 

to produce books, papers, documents, data, 

or other objects or electronically stored 

information designated therein at the 

proceeding or at an earlier time for 

inspection by the parties.’’ 

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

as follows: 

‘‘(C) Who may issue. A subpoena may be 

issued by the summary court-martial, counsel 

representing the United States, or after 

referral, trial counsel, to secure witnesses or 

evidence for that court-martial. A subpoena 

may also be issued by the president of a court 

of inquiry or by an officer detailed to take a 

deposition to secure witnesses or evidence 

for those proceedings respectively.’’ 

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

as follows: 

‘‘(D) Service. A subpoena may be served by 

the person authorized by this rule to issue it, 

a United States Marshal, or any other person 

who is not less than 18 years of age. Service 

shall be made by delivering a copy of the 

subpoena to the person named and by 

providing to the person named travel orders 

and a means for reimbursement for fees and 

mileage as may be prescribed by the 

Secretary concerned, or in the case of 

hardship resulting in the subpoenaed 

witness’s inability to comply with the 

subpoena absent initial government payment, 

by providing to the person named travel 

orders, fees and mileage sufficient to comply 

with the subpoena in rules prescribed by the 

Secretary concerned.’’ 

(n) R.C.M. 703(e)(2)(G)(ii) is amended to 

read as follows: 

‘‘(ii) Requirements. A warrant of 

attachment may be issued only upon 

probable cause to believe that the witness 

was duly served with a subpoena, that the 

subpoena was issued in accordance with 

these rules, that a means of reimbursement of 

fees and mileage was provided to the witness 

or advanced to the witness in cases of 

hardship, that the witness is material, that 

the witness refused or willfully neglected to 

appear at the time and place specified on the 

subpoena, and that no valid excuse is 

reasonably apparent for the witness’ failure 

to appear.’’ 

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

as follows: 

‘‘(B) Evidence not under the control of the 

Government. Evidence not under the control 

of the Government may be obtained by 

subpoena issued in accordance with 

subsection (e)(2) of this rule. A subpoena 

duces tecum to produce books, papers, 

documents, data, or other objects or 

electronically stored information for pretrial 

investigation pursuant to Article 32 may be 

issued, following the convening authority’s 

order directing such pretrial investigation, by 

either the investigating officer appointed 

under R.C.M. 405(d)(1) or the counsel 

representing the United States. A person in 

receipt of a subpoena duces tecum for an 

Article 32 hearing need not personally 

appear in order to comply with the 

subpoena.’’ 

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

follows: 

‘‘(12) Unreasonable multiplication of 

charges. The military judge may provide a 

remedy, as provided below, if he or she finds 

there has been an unreasonable 

multiplication of charges as applied to 

findings or sentence. 

(i) As applied to findings. Charges that 

arise from substantially the same transaction, 

while not legally multiplicious, may still be 

unreasonably multiplied as applied to 

findings. When the military judge finds, in 

his or her discretion, that the offenses have 

been unreasonably multiplied, the 

appropriate remedy shall be dismissal of the 

lesser offenses or merger of the offenses into 

one specification. 

(ii) As applied to sentence. Where the 

military judge finds that the nature of the 

harm requires a remedy that focuses more 

appropriately on punishment than on 

findings, he or she may find that there is an 

unreasonable multiplication of charges as 

applied to sentence. If the military judge 

makes such a finding, the maximum 

punishment for those offenses determined to 

be unreasonably multiplied shall be the 

maximum authorized punishment of the 

offense carrying the greatest maximum 

punishment.’’ 

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

follows: 

‘‘(3) Permissible grounds. A specification 

may be dismissed upon timely motion by the 

accused if one of the following is applicable: 

(A) Defective. When the specification is so 

defective that it substantially misled the 

accused, and the military judge finds that, in 

the interest of justice, trial should proceed on 

remaining charges and specifications without 

undue delay; or 

(B) Multiplicity. When the specification is 

multiplicious with another specification, is 


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unnecessary to enable the prosecution to 

meet the exigencies of proof through trial, 

review, and appellate action, and should be 

dismissed in the interest of justice. A charge 

is multiplicious if the proof of such charge 

also proves every element of another charge.’’ 

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

follows: 

‘‘(1) General rule. Except as listed below in 

paragraphs (2) and (3), the prosecution shall 

have the burden of proving beyond a 

reasonable doubt that the defense did not 

exist.’’ 

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

follows: 

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

defense of mistake of fact as to age as 

described in Article 120b(d)(2) in a 

prosecution of a child sexual offense, the 

accused has the burden of proving mistake of 

fact as to age by a preponderance of the 

evidence.’’ 

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

follows: 

‘‘(2) Child Sexual Offenses. It is a defense 

to a prosecution for Article 120b(b), sexual 

assault of a child, and Article 120b(c), sexual 

abuse of a child, that, at the time of the 

offense, the accused reasonably believed that 

the child had attained the age of 16 years, if 

the child had in fact attained at least the age 

of 12 years. The accused must prove this 

defense by a preponderance of the evidence.’’ 

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

as follows: 

‘‘(D) The burden of proof to establish the 

guilt of the accused is upon the Government. 

[When the issue of lack of mental 

responsibility is raised, add: The burden of 

proving the defense of lack of mental 

responsibility by clear and convincing 

evidence is upon the accused. When the 

issue of mistake of fact under R.C.M. 916(j)(2) 

is raised, add: The accused has the burden 

of proving the defense of mistake of fact as 

to age by a preponderance of the evidence.]’’ 

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

as follows: 

‘‘(C) Multiple Offenses. When the accused 

is found guilty of two or more offenses, the 

maximum authorized punishment may be 

imposed for each separate offense, unless the 

military judge finds that the offenses are 

either multiplicious or unreasonably 

multiplied. 

(i) Multiplicity. A charge is multiplicious 

and must be dismissed if the proof of such 

charge also proves every element of another 

charged offense unless Congress intended to 

impose multiple punishments for the same 

act. 

(ii) Unreasonable Multiplication. If the 

military judge finds that there is an 

unreasonable multiplication of charges as 

applied to sentence, the maximum 

punishment for those offenses shall be the 

maximum authorized punishment for the 

offense carrying the greatest maximum 

punishment. The military judge may either 

merge the offenses for sentencing, or dismiss 

one or more of the charges.’’ 

(w) R.C.M. 1004(c)(7)(B) is amended to 

read as follows: 

‘‘(B) The murder was committed: while the 

accused was engaged in the commission or 

attempted commission of any robbery, rape, 

rape of a child, sexual assault, sexual assault 

of a child, aggravated sexual contact, sexual 

abuse of a child, aggravated arson, sodomy, 

burglary, kidnapping, mutiny, sedition, or 

piracy of an aircraft or vessel; or while the 

accused was engaged in the commission or 

attempted commission of any offense 

involving the wrongful distribution, 

manufacture, or introduction or possession, 

with intent to distribute, of a controlled 

substance; or, while the accused was engaged 

in flight or attempted flight after the 

commission or attempted commission of any 

such offense.’’ 

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

follows: 

‘‘(8) That only in the case of a violation of 

Article 118(4), the accused was the actual 

perpetrator of the killing or was a principal 

whose participation in the burglary, sodomy, 

rape, rape of a child, sexual assault, sexual 

assault of a child, aggravated sexual contact, 

sexual abuse of a child, robbery, or 

aggravated arson was major and who 

manifested a reckless indifference for human 

life.’’ 

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

follows: 

‘‘(9) That, only in the case of a sexual 

offense: 

(A) Under Article 120b, the victim was 

under the age of 12; or 

(B) Under Articles 120 or 120b, the accused 

maimed or attempted to kill the victim;’’ 

(z) R.C.M. 1103(b)(3) is amended by 

inserting new subsection (N) after R.C.M. 

1103(b)(3)(M) as follows: 

(N) Documents pertaining to the receipt of 

the record of trial by the victim pursuant to 

subsection (g)(3) of this rule. 

(aa) R.C.M. 1103(g) is amended by inserting 

new subsection (3) after R.C.M. 1103(g)(2) as 

follows: 

‘‘(3) Cases involving sexual offenses. 

(A) Scope; qualifying victim. In a general 

or special court-martial involving an offense 

under Article 120, Article 120b, Article 120c, 

Article 125, and all attempts to commit such 

offenses in violation of Article 80, where the 

victim of such an offense testified during the 

proceedings, a copy of the record of trial 

shall be given free of charge to that victim 

regardless of whether any such specification 

resulted in an acquittal or conviction. If a 

victim is a minor, a copy of the record of trial 

shall instead be provided to the parent or 

legal guardian of the victim. 

(B) Notice. In accordance with regulations 

of the Secretary concerned, and no later than 

authentication of the record, trial counsel 

shall cause each qualifying victim to be 

notified of the opportunity to receive a copy 

of the record of trial. Qualifying victims may 

decline receipt of such documents in writing 

and any written declination shall be attached 

to the original record of trial. 

(C) Documents to be provided. For 

purposes of this subsection, the record of 

trial shall consist of documents described in 

subsection (b)(2) of this rule, except for 

proceedings described in subsection (e) of 

this rule, in which case the record of trial 

shall consist of items described in subsection 

(e). Matters attached to the record as 

described in subsection (b)(3) of this rule are 

not required to be provided.’’ (bb) R.C.M. 

1104 (b)(1) is amended by inserting new 

subsection (E) after the Discussion section to 

R.C.M. 1104(b)(1)(D)(iii)(d) as follows: 

‘‘(E) Victims of Sexual Assault. Qualifying 

victims, as defined in R.C.M. 1103(g)(3)(A), 

shall be served a copy of the record of trial 

in the same manner as the accused under 

subsection (b) of this rule. In accordance with 

regulations of the Secretary concerned: 

(i) A copy of the record of trial shall be 

provided to each qualifying victim as soon as 

it is authenticated, or if the victim requests, 

at a time thereafter. The victim’s receipt of 

the record of trial, including any delay in 

receiving it, shall be documented and 

attached to the original record of trial. 

(ii) A copy of the convening authority’s 

action as described in R.C.M. 

1103(b)(2)(D)(iv) shall be provided to each 

qualifying victim as soon as each document 

is prepared. If the victim makes a request in 

writing, service of the record of trial may be 

delayed until the action is available. 

(iii) Classified information pursuant to 

subsection (b)(1)(D) of this rule, sealed 

matters pursuant to R.C.M. 1103A, or other 

portions of the record the release of which 

would unlawfully violate the privacy 

interests of any party, to include those 

afforded by 5 U.S.C. § 552a, The Privacy Act 

of 1974, shall not be provided. Matters 

attached to the record as described in R.C.M. 

1103(b)(3) are not required to be provided.’’ 

Sec. 3. Part IV of the Manual for CourtsMartial, United States, is amended as 

follows: 

(a) In paragraphs 1 through 113, the lesser 

included offenses in subparagraph d are 

uniformly amended to delete the existing 

language and insert the following words: 

‘‘See paragraph 3 of this part and 

Appendix 12A.’’ 

(b) Paragraph 3b, Article 79, Lesser 

Included Offenses, is amended to read as 

follows: 

‘‘b. Explanation. 

(1) In general. A lesser offense is 

‘‘necessarily included’’ in a charged offense 

when the elements of the lesser offense are 

a subset of the elements of the charged 

offense, thereby putting the accused on 

notice to defend against the lesser offense in 

addition to the offense specifically charged. 

A lesser offense may be ‘‘necessarily 

included’’ when: 

(a) All of the elements of the lesser offense 

are included in the greater offense, and the 

common elements are identical (for example, 

larceny as a lesser included offense of 

robbery); 

(b) All of the elements of the lesser offense 

are included in the greater offense, but one 

or more elements is a subset by being legally 

less serious (for example, housebreaking as a 

lesser included offense of burglary); or 

(c) All of the elements of the lesser offense 

are ‘‘included and necessary’’ parts of the 

greater offense, but the mental element is a 

subset by being legally less serious (for 

example, wrongful appropriation as a lesser 

included offense of larceny). 

(2) Sua sponte duty. A military judge must 

instruct panel members on lesser included 

offenses reasonably raised by the evidence. 

(3) Multiple lesser included offenses. When 

the offense charged is a compound offense 


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comprising two or more included offenses, 

an accused may be found guilty of any or all 

of the offenses included in the offense 

charged. For example, robbery includes both 

larceny and assault. Therefore, in a proper 

case, a court-martial may find an accused not 

guilty of robbery, but guilty of wrongful 

appropriation and assault. 

(4) Findings of guilty to a lesser included 

offense. A court-martial may find an accused 

not guilty of the offense charged, but guilty 

of a lesser included offense by the process of 

exception and substitution. The court-martial 

may except (that is, delete) the words in the 

specification that pertain to the offense 

charged and, if necessary, substitute language 

appropriate to the lesser included offense. 

For example, the accused is charged with 

murder in violation of Article 118, but found 

guilty of voluntary manslaughter in violation 

of Article 119. Such a finding may be worded 

as follows: 

Of the Specification: Guilty, except the 

word ‘‘murder’’ substituting therefor the 

words ‘‘willfully and unlawfully kill,’’ of the 

excepted word, not guilty, of the substituted 

words, guilty. 

Of the Charge: Not guilty, but guilty of a 

violation of Article 119. 

If a court-martial finds an accused guilty of 

a lesser included offense, the finding as to 

the charge shall state a violation of the 

specific punitive article violated and not a 

violation of Article 79. 

(5) Specific lesser included offenses. 

Specific lesser included offenses, if any, are 

listed for each offense in Appendix 12A, but 

the list is merely guidance to practitioners; is 

not all-inclusive; and is not binding on 

military courts.’’ 

(c) Paragraph 45, Article 120—Rape and 

sexual assault generally, is amended by 

inserting new subparagraph b. immediately 

after subparagraph a. to read as follows: 

‘‘b. Elements. 

(1) Rape involving contact between penis 

and vulva or anus or mouth. 

(a) By unlawful force 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so with unlawful 

force. 

(b) By force causing or likely to cause death 

or grievous bodily harm 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by using force 

causing or likely to cause death or grievous 

bodily harm to any person. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping. 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by threatening 

or placing that other person in fear that any 

person would be subjected to death, grievous 

bodily harm, or kidnapping. 

(d) By first rendering that other person 

unconscious 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by first 

rendering that other person unconscious. 

(e) By administering a drug, intoxicant, or 

other similar substance 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by 

administering to that other person by force or 

threat of force, or without the knowledge or 

permission of that person, a drug, intoxicant, 

or other similar substance and thereby 

substantially impairing the ability of that 

other person to appraise or control conduct. 

(2) Rape involving penetration of the vulva, 

anus, or mouth by any part of the body or 

any object. 

(a) By force 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

of another person by any part of the body or 

by any object; 

(ii) That the accused did so with unlawful 

force; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) By force causing or likely to cause death 

or grievous bodily harm 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

of another person by any part of the body or 

by any object; 

(ii) That the accused did so by using force 

causing or likely to cause death or grievous 

bodily harm to any person; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

of another person by any part of the body or 

by any object; 

(ii) That the accused did so by threatening 

or placing that other person in fear that any 

person would be subjected to death, grievous 

bodily harm, or kidnapping; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(d) By first rendering that other person 

unconscious 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

of another person by any part of the body or 

by any object; 

(ii) That the accused did so by first 

rendering that other person unconscious; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(e) By administering a drug, intoxicant, or 

other similar substance 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

of another person by any part of the body or 

by any object; 

(ii) That the accused did so by 

administering to that other person by force or 

threat of force, or without the knowledge or 

permission of that person, a drug, intoxicant, 

or other similar substance and thereby 

substantially impairing the ability of that 

other person to appraise or control conduct; 

and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(3) Sexual assault involving contact 

between penis and vulva or anus or mouth. 

(a) By threatening or placing that other 

person in fear 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by threatening 

or placing that other person in fear. 

(b) By causing bodily harm 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by causing 

bodily harm to that other person. 

(c) By fraudulent representation 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by making a 

fraudulent representation that the sexual act 

served a professional purpose. 

(d) By false pretense 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the accused did so by inducing a 

belief by any artifice, pretense, or 

concealment that the accused is another 

person. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; and 

(ii) That the other person was asleep, 

unconscious, or otherwise unaware that the 

sexual act was occurring. 

(iii) That the accused knew or reasonably 

should have known that the other person was 

asleep, unconscious, or otherwise unaware 

that the sexual act was occurring. 

(f) When the other person is incapable of 

consenting 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, between the penis and vulva 

or anus or mouth; 

(ii) That the other person was incapable of 

consenting to the sexual act due to: 


tkelley on DSK3SPTVN1PROD with NOTICES
64858 Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 

(A) Impairment by any drug, intoxicant or 

other similar substance; or 

(B) A mental disease or defect, or physical 

disability; and 

(iii) That the accused knew or reasonably 

should have known of the impairment, 

mental disease or defect, or physical 

disability of the other person. 

(4) Sexual assault involving penetration of 

the vulva, anus, or mouth by any part of the 

body or any object. 

(a) By threatening or placing that other 

person in fear 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the accused did so by threatening 

or placing that other person in fear; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) By causing bodily harm 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the accused did so by causing 

bodily harm to that other person; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(c) By fraudulent representation 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the accused did so by making a 

fraudulent representation that the sexual act 

served a professional purpose when it served 

no professional purpose; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(d) By false pretense 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the accused did so by inducing a 

belief by any artifice, pretense, or 

concealment that the accused is another 

person; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the other person was asleep, 

unconscious, or otherwise unaware that the 

sexual act was occurring; 

(iii) That the accused knew or reasonably 

should have known that the other person was 

asleep, unconscious, or otherwise unaware 

that the sexual act was occurring; and 

(iv) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(f) When the other person is incapable of 

consenting 

(i) That the accused committed a sexual act 

upon another person by causing penetration, 

however slight, of the vulva, anus, or mouth 

by any part of the body or by any object; 

(ii) That the other person was incapable of 

consenting to the sexual act due to: 

(A) Impairment by any drug, intoxicant or 

other similar substance; or 

(B) A mental disease or defect, or physical 

disability; 

(iii) That the accused knew or reasonably 

should have known of the impairment, 

mental disease or defect, or physical 

disability of the other person; and 

(iv) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(5) Aggravated sexual contact involving the 

touching of the genitalia, anus, groin, breast, 

inner thigh, or buttocks of any person. 

(a) By force 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so with unlawful 

force; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) By force causing or likely to cause death 

or grievous bodily harm 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by using force 

causing or likely to cause death or grievous 

bodily harm to any person; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by threatening 

or placing that other person in fear that any 

person would be subjected to death, grievous 

bodily harm, or kidnapping; and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(d) By first rendering that other person 

unconscious 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by first 

rendering that other person unconscious; and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(e) By administering a drug, intoxicant, or 

other similar substance 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by 

administering to that other person by force or 

threat of force, or without the knowledge or 

permission of that person, a drug, intoxicant, 

or other similar substance and thereby 

substantially impairing the ability of that 

other person to appraise or control conduct; 

and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(6) Aggravated sexual contact involving the 

touching of any body part of any person. 

(a) By force 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so with unlawful 

force; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(b) By force causing or likely to cause death 

or grievous bodily harm 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by using force 

causing or likely to cause death or grievous 

bodily harm to any person; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by threatening 

or placing that other person in fear that any 

person would be subjected to death, grievous 

bodily harm, or kidnapping; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(d) By first rendering that other person 

unconscious 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by first 

rendering that other person unconscious; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 


tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 64859 

(e) By administering a drug, intoxicant, or 

other similar substance 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by 

administering to that other person by force or 

threat of force, or without the knowledge or 

permission of that person, a drug, intoxicant, 

or other similar substance and thereby 

substantially impairing the ability of that 

other person to appraise or control conduct; 

and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(7) Abusive sexual contact involving the 

touching of the genitalia, anus, groin, breast, 

inner thigh, or buttocks of any person. 

(a) By threatening or placing that other 

person in fear 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by threatening 

or placing that other person in fear; and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) By causing bodily harm 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by causing 

bodily harm to that other person; and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(c) By fraudulent representation 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by making a 

fraudulent representation that the sexual act 

served a professional purpose; and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(d) By false pretense 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the accused did so by inducing a 

belief by any artifice, pretense, or 

concealment that the accused is another 

person; and 

(iii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the other person was asleep, 

unconscious, or otherwise unaware that the 

sexual act was occurring; 

(iii) That the accused knew or reasonably 

should have known that the other person was 

asleep, unconscious, or otherwise unaware 

that the sexual act was occurring; and 

(iv) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(f) When the other person is incapable of 

consenting 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, either 

directly or through the clothing, the genitalia, 

anus, groin, breast, inner thigh, or buttocks 

of any person; 

(ii) That the other person was incapable of 

consenting to the sexual act due to: 

(A) Impairment by any drug, intoxicant or 

other similar substance; or 

(B) A mental disease or defect, or physical 

disability; 

(iii) That the accused knew or reasonably 

should have known of the impairment, 

mental disease or defect, or physical 

disability of the other person; and 

(iv) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(8) Abusive sexual contact involving the 

touching of any body part of any person. 

(a) By threatening or placing that other 

person in fear 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by threatening 

or placing that other person in fear; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(b) By causing bodily harm 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by causing 

bodily harm to that other person; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(c) By fraudulent representation 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by making a 

fraudulent representation that the sexual act 

served a professional purpose when it served 

no professional purpose; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(d) By false pretense 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the accused did so by inducing a 

belief by any artifice, pretense, or 

concealment that the accused is another 

person; and 

(iii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the other person was asleep, 

unconscious, or otherwise unaware that the 

sexual act was occurring; 

(iii) That the accused knew or reasonably 

should have known that the other person was 

asleep, unconscious, or otherwise unaware 

that the sexual act was occurring; and 

(iv) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(f) When the other person is incapable of 

consenting 

(i) That the accused committed sexual 

contact upon another person by touching, or 

causing another person to touch, any body 

part of any person; 

(ii) That the other person was incapable of 

consenting to the sexual act due to: 

(A) Impairment by any drug, intoxicant or 

other similar substance; or 

(B) A mental disease or defect, or physical 

disability; 

(iii) That the accused knew or reasonably 

should have known of the impairment, 

mental disease or defect, or physical 

disability of the other person; and 

(iv) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person.’’ 

(c) Paragraph 45, Article 120—Rape and 

sexual assault generally, is amended by 

inserting new subparagraph c. immediately 

after subparagraph b. to read as follows: 

‘‘c. Explanation. 

(1) In general. Sexual offenses have been 

separated into three statutes: adults (120), 

children (120b), and other offenses (120c). 

(2) Definitions. The terms are defined in 

Paragraph 45a(g). 

(3) Victim character and privilege. See Mil. 

R. Evid. 412 concerning rules of evidence 

relating to the character of the victim of an 

alleged sexual offense. See Mil. R. Evid. 514 

concerning rules of evidence relating to 

privileged communications between the 

victim and victim advocate. 

(4) Consent as an element. Lack of consent 

is not an element of any offense under this 

paragraph unless expressly stated. Consent 

may be relevant for other purposes.’’ 

(d) Paragraph 45, Article 120—Rape and 

sexual assault generally, is amended by 

inserting new subparagraph d. immediately 

after subparagraph c. to read as follows: 

‘‘d. Lesser included offenses. See paragraph 

3 of this part and Appendix 12A.’’ 

(e) Paragraph 45, Article 120—Rape and 

sexual assault generally, is amended by 


tkelley on DSK3SPTVN1PROD with NOTICES
64860 Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 

inserting new subparagraph e. immediately 

after subparagraph d. to read as follows: 

‘‘e. Maximum punishments. 

(1) Rape. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement 

for life without eligibility for parole. 

(2) Sexual assault. Dishonorable discharge, 

forfeiture of all pay and allowances, and 

confinement for 30 years. 

(3) Aggravated sexual contact. 

Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 20 

years. 

(4) Abusive sexual contact. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 7 years.’’ 

(f) Paragraph 45, Article 120—Rape and 

sexual assault generally, is amended by 

inserting new subparagraph f. immediately 

after subparagraph e. to read as follows: 

‘‘f. Sample specifications. 

(1) Rape involving contact between penis 

and vulva or anus or mouth. 

(a) By force. In that (personal jurisdiction 

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

_____ 20__, commit a sexual act upon 

____________ by causing penetration of 

___________’s (vulva) (anus) (mouth) with 

_________’s penis, by using unlawful force. 

(b) By force causing or likely to cause death 

or grievous bodily harm. In that (personal 

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

on or about _____ 20__, commit a sexual act 

upon ____________ by causing penetration of 

___________’s (vulva) (anus) (mouth) with 

_______’s penis, by using force likely to cause 

death or grievous bodily harm to _________, 

to wit: _____________. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping. In that (personal jurisdiction 

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

_____ 20__, commit a sexual act upon 

__________ by causing penetration of 

_________’s (vulva) (anus) (mouth) with 

_______’s penis, by (threatening ________) 

(placing _______ in fear) that _____________ 

would be subjected to (death) (grievous 

bodily harm) (kidnapping). 

(d) By first rendering that other person 

unconscious. In that (personal jurisdiction 

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

_____ 20__, commit a sexual act upon 

__________ by causing penetration of 

__________’s (vulva) (anus) (mouth) with 

________’s penis, by first rendering 

__________ unconscious by 

__________________. 

(e) By administering a drug, intoxicant, or 

other similar substance. In that (personal 

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

on or about _____ 20__, commit a sexual act 

upon ____________ by causing penetration of 

___________’s (vulva) (anus) (mouth) with 

_________’s penis, by administering to 

____________ (by force) (by threat of force) 

(without the knowledge or permission of 

___________) a (drug) (intoxicant) (list other 

similar substance), to wit: ________, thereby 

substantially impairing the ability of 

___________ to appraise or control his/her 

conduct. 

(2) Rape involving penetration of genital 

opening by any part of the body or any 

object. 

(a) By force. In that (personal jurisdiction 

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

____ 20__, commit a sexual act upon 

_________, by penetrating the (vulva) (anus) 

(mouth) of ____________ with (list body part 

or object) by using unlawful force, with an 

intent to (abuse) (humiliate) (harass) 

(degrade) (arouse/gratify the sexual desire of) 

____________. 

(b) By force causing or likely to cause death 

or grievous bodily injury. In that (personal 

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

on or about _____ 20__, commit a sexual act 

upon _________, by penetrating the (vulva) 

(anus) (mouth) of __________ with (list body 

part or object) by using force likely to cause 

death or grievous bodily harm to ________, to 

wit: _________________, with an intent to 

(abuse) (humiliate) (harass) (degrade) 

(arouse/gratify the sexual desire of) 

____________. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping. In that (personal jurisdiction 

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

___ 20__, commit a sexual act upon ________, 

by penetrating the (vulva) (anus) (mouth) of 

__________ with (list body part or object) by 

(threatening ______) (placing ______ in fear) 

that __________ would be subjected to (death) 

(grievous bodily harm) (kidnapping), with an 

intent to (abuse) (humiliate) (harass) 

(degrade) (arouse/gratify the sexual desire of) 

____________. 

(d) By first rendering that other person 

unconscious. In that (personal jurisdiction 

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

____ 20__, commit a sexual act upon 

________, by penetrating the (vulva) (anus) 

(mouth) of ________ with (list body part or 

object) by first rendering ________ 

unconscious, with an intent to (abuse) 

(humiliate) (harass) (degrade) (arouse/gratify 

the sexual desire of) ____________. 

(e) By administering a drug, intoxicant, or 

other similar substance. In that (personal 

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

on or about ____ 20__, commit a sexual act 

upon _________, by penetrating the (vulva) 

(anus) (mouth) of ____________ with (list 

body part or object) by administering to 

____________ (by force) (by threat of force) 

(without the knowledge or permission of 

___________) a (drug) (intoxicant) (list other 

similar substance), to wit: ________, thereby 

substantially impairing the ability of 

___________ to appraise or control his/her 

conduct, with an intent to (abuse) (humiliate) 

(harass) (degrade) (arouse/gratify the sexual 

desire of) ____________. 

(3) Sexual assault involving contact 

between penis and vulva. 

(a) By threatening or placing that other 

person in fear. In that (personal jurisdiction 

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

_____ 20__, commit a sexual act upon 

_________, by causing penetration of 

_________’s (vulva) (anus) (mouth) with 

_________’s penis, by (threatening _________) 

(placing _________ in fear). 

(b) By causing bodily harm. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ____ 20__, commit a 

sexual act upon _______, by causing 

penetration of __________’s (vulva) (anus) 

(mouth) with _______’s penis by causing 

bodily harm to _________, to wit: _________. 

(c) By fraudulent representation. In that 

(personal jurisdiction data), did (at/on board 

location), on or about _____ 20__, commit a 

sexual act upon __________, by causing 

penetration of _________’s (vulva) (anus) 

(mouth) with _________’s penis by making a 

fraudulent representation that the sexual act 

served a professional purpose, to wit: 

__________. 

(d) By false pretense. In that (personal 

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

on or about _____ 20__, commit a sexual act 

upon __________, by causing penetration of 

_________’s (vulva) (anus) (mouth) with 

_________’s penis by inducing a belief by 

(artifice) (pretense) (concealment) that the 

said accused was another person. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring. In 

that (personal jurisdiction data), did (at/on 

board location), on or about _____ 20__, 

commit a sexual act upon _________, by 

causing penetration of _________’s (vulva) 

(anus) (mouth) with ________’s penis when 

he/she knew or reasonably should have 

known that ________ was (asleep) 

(unconscious) (unaware the sexual act was 

occurring due to _________). 

(f) When the other person is incapable of 

consenting. In that (personal jurisdiction 

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

_____ 20__, commit a sexual act upon 

_________, by causing penetration of 

___________’s (vulva) (anus) (mouth) with 

_______’s penis, when _________ was 

incapable of consenting to the sexual act 

because he/she [was impaired by (a drug, to 

wit: ______) (an intoxicant, to wit: 

__________) ()] [had a (mental disease, to wit: 

________) (mental defect, to wit: _________) 

(physical disability, to wit: _________)], a 

condition that was known or reasonably 

should have been known by the said accused. 

(4) Sexual assault involving penetration of 

vulva or anus or mouth by any part of the 

body or any object. 

(a) By threatening or placing that other 

person in fear. In that (personal jurisdiction 

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

____ 20__, commit a sexual act upon 

__________, by penetrating the (vulva) (anus) 

(mouth) of ______________ with (list body 

part or object), by (threatening __________) 

(placing __________ in fear), with an intent to 

(abuse) (humiliate) (harass) (degrade) (arouse) 

(gratify the sexual desire of) ____________. 

(b) By causing bodily harm. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ____ 20__, commit a 

sexual act upon __________, by penetrating 

the (vulva) (anus) (mouth) of ______________ 

with (list body part or object), by causing 

bodily harm to __________, to wit:_________ 

with an intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) ____________. 

(c) By fraudulent representation. In that 

(personal jurisdiction data), did (at/on board 

location), on or about _____ 20__, commit a 

sexual act upon __________, by penetrating 

the (vulva) (anus) (mouth) of ______________ 

with (list body part or object), by making a 

fraudulent representation that the sexual act 

served a professional purpose, to wit: 


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Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 64861 

__________, with an intent to (abuse) 

(humiliate) (harass) (degrade) (arouse) (gratify 

the sexual desire of) ____________. 

(d) By false pretense. In that (personal 

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

on or about ____ 20__, commit a sexual act 

upon _________, by penetrating the (vulva) 

(anus) (mouth) of _____________ with (list 

body part or object), by inducing a belief by 

(artifice) (pretense) (concealment) that the 

said accused was another person, with an 

intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) ____________. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring. In 

that (personal jurisdiction data), did (at/on 

board location), on or about _____ 20__, 

commit a sexual act upon __________, by 

penetrating the (vulva) (anus) (mouth) of 

_____________ with (list body part or object), 

when he/she knew or reasonably should have 

known that _________ was (asleep) 

(unconscious) (unaware the sexual act was 

occurring due to ________), with an intent to 

(abuse) (humiliate) (harass) (degrade) (arouse) 

(gratify the sexual desire of) ___________. 

(f) When the other person is incapable of 

consenting. In that (personal jurisdiction 

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

____ 20__, commit a sexual act upon 

__________, by penetrating the (vulva) (anus) 

(mouth) of ______________ with (list body 

part or object), when ____________ was 

incapable of consenting to the sexual act 

because he/she [was impaired by (a drug, to 

wit: ______) (an intoxicant, to wit: 

__________) ()] [had a (mental disease, to wit: 

________) (mental defect, to wit: _________) 

(physical disability, to wit: _________)], a 

condition that was known or reasonably 

should have been known by the said accused, 

with an intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) _____. 

(5) Aggravated sexual contact involving the 

touching of the genitalia, anus, groin, breast, 

inner thigh, or buttocks of any person. 

(a) By force. In that (personal jurisdiction 

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

_____ 20__, [(touch) (cause _______ to touch)] 

[(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of _______, by using unlawful 

force, with an intent to (abuse) (humiliate) 

(degrade) __________. 

(b) By force causing or likely to cause death 

or grievous bodily harm. In that (personal 

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

on or about ____ 20__, [(touch) (cause 

_________ to touch)] [(directly) (through the 

clothing)] the (genitalia) (anus) (groin) 

(breast) (inner thigh) (buttocks) of _______, by 

using force likely to cause death or grievous 

bodily harm to _________, to wit: _________, 

with an intent to (abuse) (humiliate) 

(degrade) __________. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping. In that (personal jurisdiction 

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

_____ 20__, [(touch) (cause _________ to 

touch)] [(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of ______, by (threatening 

________) (placing ______ in fear) that 

_________ would be subjected to (death) 

(grievous bodily harm) (kidnapping), with an 

intent to (abuse) (humiliate) (degrade) 

__________. 

(d) By first rendering that other person 

unconscious. In that (personal jurisdiction 

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

______ 20__, [(touch) (cause ________ to 

touch)] [(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of _______, by rendering _______ 

unconscious by __________, with an intent to 

(abuse) (humiliate) (degrade) _______. 

(e) By administering a drug, intoxicant, or 

other similar substance. In that (personal 

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

on or about _____ 20__, [(touch) (cause 

__________ to touch)] [(directly) (through the 

clothing)] the (genitalia) (anus) (groin) 

(breast) (inner thigh) (buttocks) of __________, 

by administering to ____________ (by force) 

(by threat of force) (without the knowledge or 

permission of ____) a (drug) (intoxicant) (___) 

thereby substantially impairing the ability of 

___________ to appraise or control his/her 

conduct, with an intent to (abuse) (humiliate) 

(degrade) __________. 

(6) Aggravated sexual contact involving the 

touching of any body part of any person. 

(a) By force. In that (personal jurisdiction 

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

_____ 20__, [(touch) (cause ________ to 

touch)] [(directly) (through the clothing)] 

(name of body part) of _______, by using 

unlawful force, with an intent to (arouse) 

(gratify the sexual desire of) __________. 

(b) By force causing or likely to cause death 

or grievous bodily harm. In that (personal 

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

on or about _____ 20__, [(touch) (cause 

_________ to touch)] [(directly) (through the 

clothing)] (name of body part) of _______, by 

using force likely to cause death or grievous 

bodily harm to ________, to wit: 

_____________, with an intent to (arouse) 

(gratify the sexual desire of) __________. 

(c) By threatening or placing that other 

person in fear that any person would be 

subjected to death, grievous bodily harm, or 

kidnapping. In that (personal jurisdiction 

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

______ 20__, [(touch) (cause ________ to 

touch)] [(directly) (through the clothing)] 

(name of body part) of _______, by 

(threatening _________) (placing _______ in 

fear) that _____________ would be subjected 

to (death) (grievous bodily harm) 

(kidnapping), with an intent to (arouse) 

(gratify the sexual desire of) __________. 

(d) By first rendering that other person 

unconscious. In that (personal jurisdiction 

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

_____ 20__, [(touch) (cause _________ to 

touch)] [(directly) (through the clothing)] 

(name of body part) of _______, by rendering 

__________ unconscious by ________________, 

with an intent to (arouse) (gratify the sexual 

desire of) __________. 

(e) By administering a drug, intoxicant, or 

other similar substance. In that (personal 

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

on or about _____ 20__, [(touch) (cause 

_________ to touch)] [(directly) (through the 

clothing)] (name of body part) of ______, by 

administering to _________ (by force) (by 

threat of force) (without the knowledge or 

permission of __________) a (drug) 

(intoxicant) (____) and thereby substantially 

impairing the ability of ___________ to 

appraise or control his/her conduct, with an 

intent to (arouse) (gratify the sexual desire of) 

__________. 

(7) Abusive sexual contact involving the 

touching of the genitalia, anus, groin, breast, 

inner thigh, or buttocks of any person. 

(a) By threatening or placing that other 

person in fear. In that (personal jurisdiction 

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

____ 20__, [(touch) (cause another person to 

touch)] [(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of _______ by (threatening 

________) (placing _________ in fear), with an 

intent to (abuse) (humiliate) (degrade) 

__________. 

(b) By causing bodily harm. In that 

(personal jurisdiction data), did (at/on board 

location), on or about _____ 20__, [(touch) 

(cause another person to touch)] [(directly) 

(through the clothing)] the (genitalia) (anus) 

(groin) (breast) (inner thigh) (buttocks) of 

_______ by causing bodily harm to 

__________, to wit: ___________________, with 

an intent to (abuse) (humiliate) (degrade) 

__________. 

(c) By fraudulent representation. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ____ 20__, [(touch) 

(cause another person to touch)] [(directly) 

(through the clothing)] the (genitalia) (anus) 

(groin) (breast) (inner thigh) (buttocks) of 

__________ by making a fraudulent 

representation that the sexual contact served 

a professional purpose, to wit: __________, 

with an intent to (abuse) (humiliate) 

(degrade) __________. 

(d) By false pretense. In that (personal 

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

on or about _____ 20__, [(touch) (cause 

another person to touch)] [(directly) (through 

the clothing)] the (genitalia) (anus) (groin) 

(breast) (inner thigh) (buttocks) of __________ 

by inducing a belief by (artifice) (pretense) 

(concealment) that the said accused was 

another person, with an intent to (abuse) 

(humiliate) (degrade) __________. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring. In 

that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, 

[(touch) (cause another person to touch)] 

[(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of _______ when he/she knew or 

reasonably should have known that _______ 

was (asleep) (unconscious) (unaware the 

sexual contact was occurring due to 

_________), with an intent to (abuse) 

(humiliate) (degrade) __________. 

(f) When that person is incapable of 

consenting. In that (personal jurisdiction 

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

____ 20__, [(touch) (cause another person to 

touch)] [(directly) (through the clothing)] the 

(genitalia) (anus) (groin) (breast) (inner thigh) 

(buttocks) of ______ when _________ was 

incapable of consenting to the sexual contact 

because he/she [was impaired by (a drug, to 

wit: ______) (an intoxicant, to wit: 

__________) (1] [had a (mental disease, to wit: 

________) (mental defect, to wit: _________) 


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(physical disability, to wit: _________)] and 

this condition was known or reasonably 

should have been known by ___________, 

with an intent to (abuse) (humiliate) 

(degrade) __________. 

(8) Abusive sexual contact involving the 

touching of any body part of any person. 

(a) By threatening or placing that other 

person in fear. In that (personal jurisdiction 

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

____ 20__, [(touch) (cause another person to 

touch)] [(directly) (through the clothing)] the 

(name of body part) of _______ by 

(threatening _________) (placing __________ 

in fear), with an intent to (arouse) (gratify the 

sexual desire of) __________. 

(b) By causing bodily harm. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ____ 20__, [(touch) 

(cause another person to touch)] [(directly) 

(through the clothing)] the (name of body 

part) of _______ by causing bodily harm to 

__________, to wit: _____________, with an 

intent to (arouse) (gratify the sexual desire of) 

__________. 

(c) By fraudulent representation. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ____ 20__, [(touch) 

(cause another person to touch)] [(directly) 

(through the clothing)] the (name of body 

part) of _______ by making a fraudulent 

representation that the sexual contact served 

a professional purpose, to wit: __________, 

with an intent to (arouse) (gratify the sexual 

desire of) __________. 

(d) By false pretense. In that (personal 

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

on or about ____ 20__, [(touch) (cause another 

person to touch)] [(directly) (through the 

clothing)] the (name of body part) of _______ 

by inducing a belief by (artifice) (pretense) 

(concealment) that the said accused was 

another person, with an intent to (arouse) 

(gratify the sexual desire of) __________. 

(e) Of a person who is asleep, unconscious, 

or otherwise unaware the act is occurring. In 

that (personal jurisdiction data), did (at/on 

board location), on or about ____ 20__, 

[(touch) (cause another person to touch)] 

[(directly) (through the clothing)] the (name 

of body part) of _______ when he/she knew 

or reasonably should have known that 

_________ was (asleep) (unconscious) 

(unaware the sexual contact was occurring 

due to _________), with an intent to (arouse) 

(gratify the sexual desire of) __________. 

(f) When that person is incapable of 

consenting. In that (personal jurisdiction 

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

_______ 20__, [(touch) (cause another person 

to touch)] [(directly) (through the clothing)] 

the (name of body part) of _______ when 

____________ was incapable of consenting to 

the sexual contact because he/she [was 

impaired by (a drug, to wit: ______) (an 

intoxicant, to wit: __________) (1] [had a 

(mental disease, to wit: ________) (mental 

defect, to wit: _________) (physical disability, 

to wit: _________)], a condition that was 

known or reasonably should have been 

known by _____________, with an intent to 

(arouse) (gratify the sexual desire of) 

__________.’’ 

(g) Paragraph 45b, Article 120—Rape and 

Sexual assault of a child, is amended by 

inserting new subparagraph b. immediately 

after subparagraph a. to read as follows: 

‘‘b. Elements. 

(1) Rape of a child involving contact 

between penis and vulva or anus or mouth. 

(a) Rape of a child who has not attained 

the age of 12. 

(i) That the accused committed a sexual act 

upon a child causing penetration, however 

slight, between the penis and the vulva or 

anus or mouth; and 

(ii) That at the time of the sexual act the 

child had not attained the age of 12 years. 

(b) Rape by force of a child who has 

attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child causing penetration, however 

slight, between the penis and the vulva or 

anus or mouth; and 

(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 or any other person. 

(c) Rape by threatening or placing in fear 

a child who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child causing penetration, however 

slight, between the penis and the vulva or 

anus or mouth; 

(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 

the child or another person or placing that 

child in fear. 

(d) Rape by rendering unconscious a child 

who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child causing penetration, however 

slight, between the penis and the vulva or 

anus or mouth; 

(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. 

(e) Rape by administering a drug, 

intoxicant, or other similar substance to a 

child who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child causing penetration, however 

slight, between the penis and the vulva or 

anus or mouth; 

(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 

administering to that child a drug, intoxicant, 

or other similar substance. 

(2) Rape of a child involving penetration of 

vulva, anus or mouth by any part of the body 

or any object. 

(a) Rape of a child who has not attained 

the age of 12. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva, anus or mouth 

of the child by any part of the body or by any 

object; 

(ii) That at the time of the sexual act the 

child had not attained the age of 12 years; 

and 

(iii) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) Rape by force of a child who has 

attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva, anus or mouth 

of the child by any part of the body or by any 

object; 

(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; 

(iii) That the accused did so by using force 

against that child or any other person; and 

(iv) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(c) Rape by threatening or placing in fear 

a child who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva, anus or mouth 

of the child by any part of the body or by any 

object; 

(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; 

(iii) That the accused did so by threatening 

the child or another person or placing that 

child in fear; and 

(iv) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(d) Rape by rendering unconscious a child 

who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva, anus or mouth 

of the child by any part of the body or by any 

object; 

(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; 

(iii) That the accused did so by rendering 

that child unconscious; and 

(iv) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(e) Rape by administering a drug, 

intoxicant, or other similar substance to a 

child who has attained the age of 12. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva, anus or mouth 

of the child by any part of the body or by any 

object; 

(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; 

(iii) That the accused did so by 

administering to that child a drug, intoxicant, 

or other similar substance; and 

(iv) That the accused did so with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(3) Sexual assault of a child. 

(a) Sexual assault of a child who has 

attained the age of 12 involving contact 

between penis and vulva or anus or mouth. 

(i) That the accused committed a sexual act 

upon a child causing contact between penis 

and vulva or anus or mouth; and 

(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. 

(b) Sexual assault of a child who has 

attained the age of 12 involving penetration 


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of vulva, anus or mouth by any part of the 

body or any object. 

(i) That the accused committed a sexual act 

upon a child by causing penetration, 

however slight, of the vulva or anus or mouth 

of the child by any part of the body or by any 

object; 

(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 with an intent 

to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(4) Sexual abuse of a child. 

(a) Sexual abuse of a child by sexual 

contact involving the touching of the 

genitalia, anus, groin, breast, inner thigh, or 

buttocks of any person. 

(i) That the accused committed sexual 

contact upon a child by touching, or causing 

another person to touch, either directly or 

through the clothing, the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any 

person; and 

(ii) That the accused did so with intent to 

abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual 

desire of any person. 

(b) Sexual abuse of a child by sexual 

contact involving the touching of any body 

part. 

(i) That the accused committed sexual 

contact upon a child by touching, or causing 

another person to touch, either directly or 

through the clothing, any body part of any 

person; and 

(ii) That the accused did so with intent to 

arouse or gratify the sexual desire of any 

person. 

(c) Sexual abuse of a child by indecent 

exposure. 

(i) That the accused intentionally exposed 

his/her genitalia, anus, buttocks, or female 

areola or nipple to a child by any means; and 

(ii) That the accused did so with an intent 

to abuse, humiliate or degrade any person, or 

to arouse or gratify the sexual desire of any 

person. 

(d) Sexual abuse of a child by indecent 

communication. 

(i) That the accused intentionally 

communicated indecent language to a child 

by any means; and 

(ii) That the accused did so with an intent 

to abuse, humiliate or degrade any person, or 

to arouse or gratify the sexual desire of any 

person. 

(e) Sexual abuse of a child by indecent 

conduct. 

(i) That the accused engaged in indecent 

conduct, intentionally done with or in the 

presence of a child; and 

(ii) That the indecent conduct amounted to 

a 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.’’ 

(h) Paragraph 45b, Article 120b—Rape and 

sexual assault of a child, is amended by 

inserting new subparagraph c. immediately 

after subparagraph b. to read as follows: 

‘‘c. Explanation. 

(1) In general. Sexual offenses have been 

separated into three statutes: adults (120), 

children (120b), and other offenses (120c). 

(2) Definitions. Terms not defined in this 

paragraph are defined in paragraph 45b.a(h), 

supra.’’ 

(i) Paragraph 45b, Article 120b—Rape and 

sexual assault of a child, is amended by 

inserting new subparagraph d. immediately 

after subparagraph c. to read as follows: 

‘‘d. Lesser included offenses. See paragraph 

3 of this part and Appendix 12A.’’ 

(j) Paragraph 45b, Article 120b—Rape and 

sexual assault of a child, is amended by 

inserting new subparagraph e. immediately 

after subparagraph d. to read as follows: 

‘‘e. Maximum punishment. 

(1) Rape of a child. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for life without 

eligibility for parole. 

(2) Sexual assault of a child. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 30 years. 

(3) Sexual abuse of a child. 

(a) Cases involving sexual contact. 

Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 20 

years. 

(b) Other cases. Dishonorable discharge, 

forfeiture of all pay and allowances, and 

confinement for 15 years.’’ 

(k) Paragraph 45b, Article 120b—Rape and 

sexual assault of a child, is amended by 

inserting new subparagraph f. immediately 

after subparagraph e. to read as follows: 

‘‘f. Sample specifications. 

(1) Rape of a child involving contact 

between penis and vulva or anus or mouth. 

(a) Rape of a child who has not attained 

the age of 12. In that (personal jurisdiction 

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

___ 20__, commit a sexual act upon ___, a 

child who had not attained the age of 12 

years, by causing penetration of ___’s (vulva) 

(anus) (mouth) with ___’s penis. 

(b) Rape by force of a child who has 

attained the age of 12 years. In that (personal 

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

on or about ___ 20__, commit a sexual act 

upon ___, a child who had attained the age 

of 12 years but had not attained the age of 

16 years, by causing penetration of ___’s 

(vulva) (anus) (mouth) with ___’s penis, by 

using force against ___. 

(c) Rape by threatening or placing in fear 

a child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by causing 

penetration of ___’s (vulva) (anus) (mouth) 

with ___’s penis by (threatening ___) (placing 

___ in fear). 

(d) Rape by rendering unconscious of a 

child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by causing 

penetration of ___’s (vulva) (anus) (mouth) 

with ___’s penis by rendering ___ 

unconscious by ___. 

(e) Rape by administering a drug, 

intoxicant, or other similar substance to a 

child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by causing 

penetration of ___’s (vulva) (anus) (mouth) 

with ___’s penis by administering to ___ a 

(drug) (intoxicant) (___), to wit:___. 

(2) Rape of a child involving penetration of 

the vulva or anus or mouth by any part of 

the body or any object. 

(a) Rape of a child who has not attained 

the age of 12. In that (personal jurisdiction 

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

___ 20__, commit a sexual act upon ___, a 

child who had not attained the age of 12 

years, by penetrating the (vulva) (anus) 

(mouth) of ___ with (list body part or object), 

with an intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) ___. 

(b) Rape by force of a child who has 

attained the age of 12 years. In that (personal 

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

on or about ___ 20__, commit a sexual act 

upon ___, a child who had attained the age 

of 12 years but had not attained the age of 

16 years, by penetrating the (vulva) (anus) 

(mouth) of ___ with (list body part or object), 

by using force against ___, with an intent to 

(abuse) (humiliate) (harass) (degrade) (arouse) 

(gratify the sexual desire of) ___. 

(c) Rape by threatening or placing in fear 

a child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by penetrating 

the (vulva) (anus) (mouth) of ___ with (list 

body part or object), by (threatening ___) 

(placing ___ in fear), with an intent to (abuse) 

(humiliate) (harass) (degrade) (arouse) (gratify 

the sexual desire of) ___. 

(d) Rape by rendering unconscious of a 

child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by penetrating 

the (vulva) (anus) (mouth) of ___ with (list 

body part or object), by rendering ___ 

unconscious, with an intent to (abuse) 

(humiliate) (harass) (degrade) (arouse) (gratify 

the sexual desire of) ___. 

(e) Rape by administering a drug, 

intoxicant, or other similar substance to a 

child who has attained the age of 12 years. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 

attained the age of 12 years but had not 

attained the age of 16 years, by penetrating 

the (vulva) (anus) (mouth) of ___ with (list 

body part or object), by administering to ___ 

a (drug) (intoxicant) (___), to wit: ___, with 

an intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) ___. 

(3) Sexual assault of a child. 

(a) Sexual assault of a child who has 

attained the age of 12 years involving contact 

between penis and vulva or anus or mouth. 

In that (personal jurisdiction data), did (at/on 

board location), on or about ___ 20__, commit 

a sexual act upon ___, a child who had 


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attained the age of 12 years but had not 

attained the age of 16 years, by causing 

penetration of ___’s (vulva) (anus) (mouth) 

with ___’s penis. 

(b) Sexual assault of a child who has 

attained the age of 12 years involving 

penetration of vulva or anus or mouth by any 

part of the body or any object. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ___ 20__, commit a 

sexual act upon ___, a child who had attained 

the age of 12 years but had not attained the 

age of 16 years, by penetrating the (vulva) 

(anus) (mouth) of ___ with (list body part or 

object), with an intent to (abuse) (humiliate) 

(harass) (degrade) (arouse) (gratify the sexual 

desire of) ___. 

(4) Sexual abuse of a child. 

(a) Sexual abuse of a child involving sexual 

contact involving the touching of the 

genitalia, anus, groin, breast, inner thigh, or 

buttocks of any person. In that (personal 

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

on or about ___ 20 __, commit a lewd act 

upon ___, a child who had not attained the 

age of 16 years, by intentionally [(touch) 

(cause ___ to touch)] [(directly) (through the 

clothing)] the (genitalia) (anus) (groin) 

(breast) (inner thigh) (buttocks) of ___, with 

an intent to (abuse) (humiliate) (degrade) ___. 

(b) Sexual abuse of a child involving sexual 

contact involving the touching of any body 

part of any person. In that (personal 

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

on or about ___ 20 __, commit a lewd act 

upon ___, a child who had not attained the 

age of 16 years, by intentionally exposing [his 

(genitalia) (anus) (buttocks)] [her (genitalia) 

(anus) (buttocks) (areola) (nipple)] to ___, 

with an intent to (abuse) (humiliate) (harass) 

(degrade) (arouse) (gratify the sexual desire 

of) ___. 

(c) Sexual abuse of a child involving 

indecent exposure. In that (personal 

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

on or about ___ 20 __, commit a lewd act 

upon ___, a child who had not attained the 

age of 16 years, by intentionally [(touch) 

(cause ___ to touch)] [(directly) (through the 

clothing)] (name of body part) of ___, with an 

intent to (arouse) (gratify the sexual desire of) 

___. 

(d) Sexual abuse of a child involving 

indecent communication. In that (personal 

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

on or about ___ 20 __, commit a lewd act 

upon ___, a child who had not attained the 

age of 16 years, by intentionally 

communicating to ___ indecent language to 

wit: ___, with an intent to (abuse) (humiliate) 

(harass) (degrade) (arouse) (gratify the sexual 

desire of) ___. 

(e) Sexual abuse of a child involving 

indecent conduct. In that (personal 

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

on or about ___ 20 __, commit a lewd act 

upon ___, a child who had not attained the 

age of 16 years, by engaging in indecent 

conduct, to wit: ___, intentionally done 

(with) (in the presence of) ___, which 

conduct amounted to a 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.’’ 

(m) Paragraph 45c, Article 120—Other 

sexual misconduct, is amended by inserting 

new subparagraph b. immediately after 

subparagraph a. to read as follows: 

‘‘b. Elements. 

(1) Indecent viewing. 

(a) That the accused knowingly and 

wrongfully viewed the private area of another 

person; 

(b) That said viewing was without the 

other person’s consent; and 

(c) That said viewing took place under 

circumstances in which the other person had 

a reasonable expectation of privacy. 

(2) Indecent visual recording. 

(a) That the accused knowingly recorded 

(photographed, videotaped, filmed, or 

recorded by any means) the private area of 

another person; 

(b) That said visual recording was without 

the other person’s consent; and 

(c) That said visual recording was made 

under circumstances in which the other 

person had a reasonable expectation of 

privacy. 

(3) Broadcasting of an indecent visual 

recording. 

(a) That the accused knowingly broadcast 

a certain visual recording of another person’s 

private area; 

(b) That said visual recording was made or 

broadcast without the other person’s consent; 

(c) That the accused knew or reasonably 

should have known that the visual recording 

was made or broadcast without the other 

person’s consent; 

(d) That said visual recording was made 

under circumstances in which the other 

person had a reasonable expectation of 

privacy; and 

(e) That the accused knew or reasonably 

should have known that said visual recording 

was made under circumstances in which the 

other person had a reasonable expectation of 

privacy. 

(4) Distribution of an indecent visual 

recording. 

(a) That the accused knowingly distributed 

a certain visual recording of another person’s 

private area; 

(b) That said visual recording was made or 

distributed without the other person’s 

consent; 

(c) That the accused knew or reasonably 

should have known that said visual recording 

was made or distributed without the other 

person’s consent; 

(d) That said visual recording was made 

under circumstances in which the other 

person had a reasonable expectation of 

privacy; and 

(e) That the accused knew or reasonably 

should have known that said visual recording 

was made under circumstances in which the 

other person had a reasonable expectation of 

privacy. 

(5) Forcible pandering. 

(a) That the accused compelled a certain 

person to engage in an act of prostitution 

with any person; and 

(6) Indecent exposure. 

(a) That the accused exposed his or her 

genitalia, anus, buttocks, or female areola or 

nipple; 

(b) That the exposure was in an indecent 

manner; and 

(c) That the exposure was intentional.’’ 

(l) Paragraph 45c, Article 120—Other 

sexual misconduct, is amended by inserting 

new subparagraph c. immediately after 

subparagraph b. to read as follows: 

‘‘c. Explanation. 

(1) In general. Sexual offenses have been 

separated into three statutes: adults (120), 

children (120b), and other offenses (120c). 

(2) Definitions. 

(a) Recording or visual recording. A 

‘‘recording’’ or ‘‘visual recording’’ is a still or 

moving visual image captured or recorded by 

any means. 

(b) Other terms are defined in paragraph 

45c.a(d), supra.’’ 

(m) Paragraph 45c, Article 120—Other 

sexual misconduct, is amended by inserting 

new subparagraph b. immediately after 

subparagraph a. to read as follows: 

‘‘d. Lesser included offenses. See paragraph 

3 of this part and Appendix 12A.’’ 

(n) Paragraph 45c, Article 120—Other 

sexual misconduct, is amended by inserting 

new subparagraph e. immediately after 

subparagraph d. to read as follows: 

‘‘e. Maximum punishment. 

(1) Indecent viewing. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

(2) Indecent visual recording. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 5 years. 

(3) Broadcasting or distribution of an 

indecent visual recording. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 7 years. 

(4) Forcible pandering. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 12 years. 

(5) Indecent exposure. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 1 year.’’ 

(o) Paragraph 45c, Article 120—Other 

sexual misconduct, is amended by inserting 

new subparagraph f. immediately after 

subparagraph e. to read as follows: 

‘‘f. Sample specifications. 

(1) Indecent viewing, visual recording, or 

broadcasting. 

(a) Indecent viewing. In that (personal 

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

on or about ___20 __, knowingly and 

wrongfully view the private area of ___, 

without (his) (her) consent and under 

circumstances in which (he) (she) had a 

reasonable expectation of privacy. 

(b) Indecent visual recording. In that 

(personal jurisdiction data), did (at/on board 

location), on or about ___ 20 __, knowingly 

(photograph) (film) (make a visual recording 

of) the private area of ___, without (his) (her) 

consent and under circumstances in which 

(he) (she) had a reasonable expectation of 

privacy. 

(c) Broadcasting or distributing an indecent 

visual recording. In that (personal 

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

on or about ___ 20 __, knowingly (broadcast) 

(distribute) a visual recording of the private 

area of ___, when the said accused knew or 

reasonably should have known that the said 

visual recording was (made) (and/or) 

(distributed/broadcast) without the consent 

of ___ and under circumstances in which (he) 

(she) had a reasonable expectation of privacy. 


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(2) Forcible pandering. In that (personal 

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

on or about ___ 20 __, wrongfully compel ___ 

to engage in (a sexual act) (sexual contact) 

with ___, to wit: ___, for the purpose of 

receiving (money) (other compensation) 

(___). 

(3) Indecent exposure. In that (personal 

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

on or about ___ 20 __, intentionally expose 

[his (genitalia) (anus) (buttocks)] [her 

(genitalia) (anus) (buttocks) (areola) (nipple)] 

in an indecent manner, to wit: ___.’’ 

(p) Paragraphs 61 through 113, except for 

paragraphs 63, 87, 88, 90, and 101, the 

sample specifications in subparagraph f are 

uniformly amended to insert the words 

below between the last word and the period 

in each sample specification: 

‘‘, and that said conduct was (to the 

prejudice of good order and discipline in the 

armed forces) (and was) (of a nature to bring 

discredit upon the armed forces)’’ 

(q) Paragraph 60, Article 134(b)—General 

Article, is amended to read as follows: 

‘‘b. Elements. The proof required for 

conviction of an offense under Article 134 

depends upon the nature of the misconduct 

charged. If the conduct is punished as a 

crime or offense not capital, the proof must 

establish every element of the crime or 

offense as required by the applicable law. All 

offenses under Article 134 require proof of a 

single terminal element; however, the 

terminal element may be proven using any of 

three theories of liability corresponding to 

clause 1, 2, or 3 offenses. 

(1) For clause 1 or 2 offenses under Article 

134, the following proof is required: 

(a) That the accused did or failed to do 

certain acts; and 

(b) That, under the circumstances, the 

accused’s conduct was to the prejudice of 

good order and discipline in the armed forces 

or was of a nature to bring discredit upon the 

armed forces. 

(2) For clause 3 offenses under Article 134, 

the following proof is required: 

(a) That the accused did or failed to do 

certain acts that satisfy each element of the 

federal or assimilated statute; and 

(b) That the offense charged was an offense 

not capital.’’ 

(r) Paragraph 60, Article 134(c)(6)(a)— 

General Article, is amended to read as 

follows: 

‘‘(a) Specifications under clause 1 or 2. 

When alleging a clause 1 or 2 violation, the 

specification must expressly allege that the 

conduct was ‘‘to the prejudice of good order 

and discipline’’ or that it was ‘‘of a nature to 

bring discredit upon the armed forces.’’ The 

same conduct may be prejudicial to good 

order and discipline in the armed forces and 

at the same time be of a nature to bring 

discredit upon the armed forces. Both clauses 

may be alleged; however, only one must be 

proven to satisfy the terminal element. If 

conduct by an accused does not fall under 

any of the enumerated Article 134 offenses 

(paragraphs 61 through 113 of this Part), a 

specification not listed in this Manual may 

be used to allege the offense.’’ 

(s) Paragraph 60, Article 134(c)(6)(b)— 

General Article, is amended to read as 

follows: 

‘‘(b) Specifications under clause 3. When 

alleging a clause 3 violation, the specification 

must expressly allege that the conduct was 

‘‘an offense not capital,’’ and each element of 

the federal or assimilated statute must be 

alleged expressly or by necessary 

implication. In addition, the federal or 

assimilated statute should be identified.’’ 

(t) Paragraph 60, Article 134(c)(6)(b)— 

General Article, is deleted: 

(u) Paragraph 61, Article 134—Abusing 

public animal, is amended to read as follows: 

‘‘61. Article 134—(Animal Abuse) 

a. Text of statute. See paragraph 60. 

b. Elements. 

(1) Abuse, neglect or abandonment of an 

animal. 

(a) That the accused wrongfully abused, 

neglected or abandoned a certain (public*) 

animal (and the accused caused the serious 

injury or death of the animal*); and 

(b) That, under the circumstances, the 

conduct of the accused was to the prejudice 

of good order and discipline in the armed 

forces or was of a nature to bring discredit 

upon the armed forces. 

(*Note: Add these elements as applicable.) 

(2) Sexual act with an animal. 

(a) That the accused engaged in a sexual 

act with a certain animal; and 

(b) That, under the circumstances, the 

conduct of the accused was to the prejudice 

of good order and discipline in the armed 

forces or was of a nature to bring discredit 

upon the armed forces. 

c. Explanation. 

(1) In general. This offense prohibits 

knowing, reckless, or negligent abuse, 

neglect, or abandonment of an animal. This 

offense does not include legalized hunting, 

trapping, or fishing; reasonable and 

recognized acts of training, handling, or 

disciplining of an animal; normal and 

accepted farm or veterinary practices; 

research or testing conducted in accordance 

with approved military protocols; protection 

of person or property from an unconfined 

animal; or authorized military operations or 

military training. 

(2) Definitions. As used in this paragraph: 

(A) ‘‘Abuse’’ means intentionally and 

unjustifiably: overdriving, overloading, 

overworking, tormenting, beating, depriving 

of necessary sustenance, allowing to be 

housed in a manner that results in chronic 

or repeated serious physical harm, carrying 

or confining in or upon any vehicles in a 

cruel or reckless manner, or otherwise 

mistreating an animal. Abuse may include 

any sexual touching of an animal if done 

with the intent to gratify the sexual desire of 

the accused and if not included in the 

definition of sexual act below. 

(B) ‘‘Neglect’’ means allowing another to 

abuse an animal, or, having the charge or 

custody of any animal, intentionally, 

knowingly, recklessly, or negligently failing 

to provide it with proper food, drink, or 

protection from the weather consistent with 

the species, breed, and type of animal 

involved. 

(C) ‘‘Abandoned’’ means the intentional, 

knowing, reckless or negligent leaving of an 

animal at a location without providing 

minimum care while having the charge or 

custody of that animal. 

(D) ‘‘Animal’’ means pets and animals of 

the type that are raised by individuals for 

resale to others, including but not limited to: 

Cattle, horses, sheep, pigs, goats, chickens, 

dogs, cats and similar animals owned or 

under the control of any person. Animal does 

not include reptiles, insects, arthropods, or 

any animal defined or declared to be a pest 

by the administrator of the United States 

Environmental Protection Agency. 

(E) ‘‘Public animal’’ means any animal 

owned or used by the United States or any 

animal owned or used by a local or State 

government in the United States, its 

territories or possessions. This would 

include, for example, drug detector dogs used 

by the government. 

(F) ‘‘Sexual act’’ with an animal means 

contact between the sex organ, anus or mouth 

of a person and the sex organ, mouth, or anus 

of an animal, or any penetration, however 

slight, of any part of the body of the person 

into the sex organ or anus of an animal. 

(H) ‘‘Serious injury’’ of an animal means 

physical harm that involves a temporary but 

substantial disfigurement; causes a temporary 

but substantial loss or impairment of the 

function of any bodily part or organ; causes 

a fracture of any bodily part; causes 

permanent maiming; causes acute pain of a 

duration that results in suffering; or carries 

a substantial risk of death. Serious injury 

includes, but is not limited to, burning, 

torturing, poisoning, or maiming. 

d. Lesser included offenses. See paragraph 

3 of this part and Appendix 12A. 

e. Maximum punishment. 

(1) Abuse, neglect or abandonment of an 

animal. Bad conduct discharge, forfeiture of 

all pay and allowances, and confinement for 

1 year. 

(2) Abuse, neglect or abandonment of a 

public animal. Bad conduct discharge, 

forfeiture of all pay and allowances, and 

confinement for 2 years. 

(3) Sexual act with an animal or cases 

where the accused caused the serious injury 

or death of the animal. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 5 years. 

f. Sample specification. 

In that _________, (personal jurisdiction 

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

about (date), (wrongfully [abuse] [neglect] 

[abandon]) (*engage in a sexual act, to wit: 

_________, with) a certain (*public) animal 

(*and caused [serious injury to] [the death of] 

the animal), and that said conduct was (to the 

prejudice of good order and discipline in the 

armed forces) (or) (and was) (of a nature to 

bring discredit upon the armed forces). 

(* Note: Add these elements as 

applicable.)’’ 

(v) Paragraph 90, Article 134—Indecent 

Acts with another was deleted by Executive 

Order 13447, 72 Fed. Reg. 56179 (Oct. 2, 

2007), Article 134 (Indecent Conduct) is 

inserted and reads as follows: 

‘‘90. Article 134—(Indecent Conduct) 

a. Text of Statute. See paragraph 60. 

b. Elements. 

(1) That the accused engaged in a certain 

conduct; 

(2) That the conduct was indecent; and 


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(3) 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) ‘‘Indecent’’ 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. 

(2) Indecent conduct includes offenses 

previously prescribed by ‘‘Indecent acts with 

another’’ except that the presence of another 

person is no longer required. For purposes of 

this offense, the words ‘‘conduct’’ and ‘‘act’’ 

are synonymous. For child offenses, some 

indecent conduct may be included in the 

definition of lewd act and preempted by 

Article 120b(c). See paragraph 60c(5)(a). 

d. Lesser included offense. See paragraph 

3 of this part and Appendix 12A. 

e. Maximum punishment. Dishonorable 

discharge, forfeiture of all pay and 

allowances, and confinement for 5 years. 

f. Sample specification. 

In that ______ (personal jurisdiction data), 

did (at/on board—location) (subject-matter 

jurisdiction data, if required), on or about 

(date), (wrongfully commit indecent conduct, 

to wit: _________), and that said conduct was 

(to the prejudice of good order and discipline 

in the armed forces) (or) (and was) (of a 

nature to bring discredit upon the armed 

forces).’’ 

Changes to Appendix 12, Maximum 

Punishment Chart 

(a) Article 120 is deleted and is replaced 

with the following: 

Offense Discharge Confinement Forfeiture 

Rape ............................................................................................. DD,BCD .................................... Life 4 ......................................... Total. 

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

Aggravated Sexual Contact ......................................................... DD,BCD .................................... 20 yrs ....................................... Total. 

Abusive Sexual Contact ............................................................... DD,BCD .................................... 7 yrs ......................................... Total. 

4With or without eligibility for parole. 

(b) Article 120b is inserted and reads as 

follows: 

Offense Discharge Confinement Forfeiture 

Rape of a Child ............................................................................ DD,BCD .................................... Life 4 ......................................... Total. 

Sexual Assault of a Child ............................................................. DD,BCD .................................... 30 yrs ....................................... Total. 

Sexual Abuse of a Child: 

Cases Involving Sexual Contact ........................................... DD,BCD .................................... 20 yrs ....................................... Total. 

Other Cases .......................................................................... DD,BCD .................................... 15 yrs ....................................... Total. 

4With or without eligibility for parole. 

(c) Article 120c is inserted and reads as 

follows: 

Offense Discharge Confinement Forfeiture 

Indecent Viewing .......................................................................... DD,BCD .................................... 1 yr ........................................... Total. 

Indecent Visual Recording ........................................................... DD,BCD .................................... 5 yrs ......................................... Total. 

Broadcasting or Distributing of an Indecent Visual Recording .... DD,BCD .................................... 7 yrs ......................................... Total. 

Forcible Pandering ....................................................................... DD,BCD .................................... 12 yrs ....................................... Total. 

Indecent Exposure ....................................................................... DD,BCD .................................... 1 yr ........................................... Total. 

(c) Insert the following Note after Article 

120c: 

[Note: The Article 120, 120b, and 120c 

maximum punishments apply to offenses 

committed after 28 June 2012. See 

Appendices 23, 27, and 28] 

BILLING CODE 5001–06–P 


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BILLING CODE 5001–06–C 

Changes to the Discussion Accompanying 

the Manual for Courts-Martial, United States 

Section 1. The Discussion to Part I of the 

Manual for Courts-Martial, United States, is 

amended as follows: 

(a) The Discussion immediately following 

Paragraph 4 is amended to read as follows: 

‘‘The Department of Defense, in 

conjunction with the Department of 

Homeland Security, has published 

supplementary materials to accompany the 

Manual for Courts-Martial. These materials 

consist of a Discussion (accompanying the 

Preamble, the Rules for Courts-Martial, and 

the Punitive Articles), an Analysis, and 

various appendices. These supplementary 

materials do not constitute the official views 

of the Department of Defense, the Department 

of Homeland Security, the Department of 

Justice, the military departments, the United 

States Court of Appeals for the Armed 

Forces, or any other authority of the 

Government of the United States, and they do 

not constitute rules. Cf., e.g., 5 U.S.C. 551 

(1982). The supplementary materials do not 

create rights or responsibilities that are 

binding on any person, party, or other entity 

(including any authority of the Government 

of the United States whether or not included 

in the definition of ‘‘agency’’ in 5 U.S.C. 

551(1)). Failure to comply with matter set 

forth in the supplementary materials does 

not, of itself, constitute error, although these 

materials may refer to requirements in the 

rules set forth in the Executive Order or 

established by other legal authorities (for 

example, binding judicial precedents 

applicable to courts martial) which are based 

on sources of authority independent of the 

supplementary materials. See Appendix 21 

in this Manual. 

The 1995 amendment to paragraph 4 of the 

Preamble eliminated the practice of 

identifying the Manual for Courts-Martial, 

United States, by a particular year. 

Historically the Manual had been published 

in its entirety sporadically (e.g., 1917, 1921, 

1928, 1949, 1951, 1969 and 1984) with 

amendments to it published piecemeal. It 

was therefore logical to identify the Manual 

by the calendar year of publication, with 

periodic amendments identified as 

‘‘Changes’’ to the Manual. Beginning in 1995, 

however, a new edition of the Manual was 

published in its entirety and a new naming 


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convention was adopted. See Exec. Order No. 

12960. Beginning in 1995, the Manual was to 

be referred to as ‘‘Manual for Courts-Martial, 

United States (19xx edition).’’ Amendments 

made to the Manual can be researched in the 

relevant Executive Order as referenced in 

Appendix 25. Although the Executive Orders 

were removed from Appendix 25 of the 

Manual in 2012 to reduce printing 

requirements, they can be accessed online. 

See Appendix 25. The new changes to the 

Manual will also be annotated in the Preface. 

Executive Order 13262, dated April 11, 

2002, mandated that, ‘‘The Manual shall be 

identified as ‘Manual for Courts-Martial, 

United States (2002 edition).’ ’’ Therefore, the 

preambles in the 2005 and 2008 Manuals 

were improperly amended. In 2013, the 

preamble was amended to identify new 

Manuals based on their publication date.’’ 

Section 2. The Discussion to Part II of the 

Manual for Courts-Martial, United States, is 

amended as follows: 

(a) Delete the first two ‘‘Notes’’ in the 

discussion immediately following R.C.M. 

307(c)(3). 

(b) Insert the words ‘‘For Article 134 

offenses, also refer to paragraph 60c(6) in Part 

IV.’’ after the words ‘‘How to draft 

specifications.’’ in the discussion 

immediately following R.C.M. 307(c)(3). 

(c) Delete the ‘‘Note’’ below (G) in the 

discussion immediately following R.C.M. 

307(c)(3). 

(d) Part (G)(i) in the discussion 

immediately following R.C.M. 307(c)(3) is 

amended to read as follows: 

‘‘(i) Elements. The elements of the offense 

must be alleged, either expressly or by 

necessary implication, except that article 134 

specifications must expressly allege the 

terminal element. See paragraph 60c(6) in 

Part IV. If a specific intent, knowledge, or 

state of mind is an element of the offense, it 

must be alleged.’’ 

(e) Part (G)(v) in the discussion 

immediately following R.C.M. 307(c)(3) is 

inserted to read as follows: 

‘‘(v) Lesser Included Offenses. The 

elements of the contemplated 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 discussion following paragraph 

3b(1)(c) in Part IV and the related analysis in 

Appendix 23.’’ 

(f) The discussion immediately following 

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

follows: 

‘‘The prohibition against unreasonable 

multiplication of charges addresses those 

features of military law that increase the 

potential for overreaching in the exercise of 

prosecutorial discretion. It is based on 

reasonableness, and has no foundation in 

Constitutional rights. To determine if charges 

are unreasonably multiplied, see R.C.M. 

906(b)(12). Because prosecutors are free to 

plead in the alternative, it may be reasonable 

to charge two or more offenses that arise from 

one transaction if sufficient doubt exists as to 

the facts or the law. In no case should both 

an offense and a lesser included offense 

thereof be separately charged. See also Part 

IV, Para. 3, and R.C.M. 601(e)(2) concerning 

referral of several offenses.’’ 

(g) The Discussion immediately following 

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

follows: 

‘‘In preparing for the investigation, the 

investigating officer should consider what 

evidence, including evidence that may be 

obtained by subpoena duces tecum, will be 

necessary to prepare a thorough and 

impartial investigation. The investigating 

officer should consider, as to potential 

witnesses, whether their personal appearance 

will be necessary. Generally, personal 

appearance is preferred, but the investigating 

officer should consider whether, in light of 

the probable importance of a witness’ 

testimony, an alternative to testimony under 

subsection (g)(4)(A) of this rule would be 

sufficient. 

After making a preliminary determination 

of what witnesses will be produced and other 

evidence considered, the investigating officer 

should notify the defense and inquire 

whether it requests the production of other 

witnesses or evidence. In addition to 

witnesses for the defense, the defense may 

request production of witnesses whose 

testimony would favor the prosecution. 

Once it is determined what witnesses the 

investigating officer intends to call, it must 

be determined whether each witness is 

reasonably available. That determination is a 

balancing test. The more important the 

testimony of the witness, the greater the 

difficulty, expense, delay, or effect on 

military operations must be to permit 

nonproduction. For example, the temporary 

absence of a witness on leave for 10 days 

would normally justify using an alternative 

to that witness’ personal appearance if the 

sole reason for the witness’ testimony was to 

impeach the credibility of another witness by 

reputation evidence, or to establish a 

mitigating character trait of the accused. On 

the other hand, if the same witness was the 

only eyewitness to the offense, personal 

appearance would be required if the defense 

requested it and the witness is otherwise 

reasonably available. The time and place of 

the investigation may be changed if 

reasonably necessary to permit the 

appearance of a witness. Similar 

considerations apply to the production of 

evidence, including evidence that may be 

obtained by subpoena duces tecum. 

If the production of witnesses or evidence 

would entail substantial costs or delay, the 

investigating officer should inform the 

commander who directed the investigation. 

The provision in (B), requiring the 

investigating officer to notify the appropriate 

authorities of requests by the accused for 

information privileged under Mil. R. Evid. 

505 or 506, is for the purpose of placing the 

appropriate authority on notice that an order, 

as authorized under subparagraph (g)(6), may 

be required to protect whatever information 

the government may decide to release to the 

accused.’’ 

(h) The following Discussion is inserted 

immediately after R.C.M. 405(g)(2)(C)(i): 

‘‘Evidence shall include documents and 

physical evidence which are relevant to the 

investigation and not cumulative. See 

subsection (g)(1)(B). The investigating officer 

may discuss factors affecting reasonable 

availability with the custodian and with 

others. If the custodian determines that the 

evidence is not reasonably available, the 

reasons for that determination should be 

provided to the investigating officer.’’ 

(i) The following Discussion is inserted 

immediately after R.C.M. 405(g)(2)(C)(ii): 

‘‘A subpoena duces tecum to produce 

books, papers, documents, data, 

electronically stored information, or other 

objects for pretrial investigation pursuant to 

Article 32 may be issued by the investigating 

officer or counsel representing the United 

States. See R.C.M. 703(f)(4)(B). 

The investigating officer may find that 

evidence is not reasonably available if: the 

subpoenaed party refuses to comply with the 

duly issued subpoena duces tecum; the 

evidence is not subject to compulsory 

process; or the significance of the evidence 

is outweighed by the difficulty, expense, 

delay, and effect on military operations of 

obtaining the evidence.’’ 

(j) The Discussion immediately following 

R.C.M. 405(g)(3) is amended to read as 

follows: 

‘‘See Department of Defense Joint Travel 

Regulations, Vol 2, paragraph C7910.’’ 

(k) The Discussion immediately following 

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

‘‘With regard to all evidence, the 

investigating officer should exercise 

reasonable control over the scope of the 

inquiry. See subsection (e) of this rule. An 

investigating officer may consider any 

evidence, even if that evidence would not be 

admissible at trial. However, see subsection 

(g)(4) of this rule as to limitations on the 

ways in which testimony may be presented. 

Certain rules relating to the form of testimony 

which may be considered by the 

investigating officer appear in subsection (g) 

of this rule. 

Mil. R. Evid. 412 evidence, including 

closed hearing Testimony, must be protected 

pursuant to the Privacy Act of 1974, 5 U.S.C. 

552a. Evidence deemed admissible by the 

investigating officer should be made a part of 

the report of investigation. See subsection 

j(2)(C), infra. Evidence deemed inadmissible, 

and the testimony taken during the closed 

hearing, should not be included in the report 

of investigation and should be safeguarded. 

The investigating officer and counsel 

representing the United States are 

responsible for careful handling of any such 

evidence to prevent indiscriminate viewing 

or disclosure. Although R.C.M. 1103A does 

not apply, its requirements should be used as 

a model for safeguarding inadmissible 

evidence and closed hearing testimony. The 

convening authority and the appropriate 

judge advocate are permitted to review such 

safeguarded evidence and testimony. See 

R.C.M. 601(d)(1).’’ 

(l) The Discussion immediately following 

R.C.M. 703(e)(2)(B) is amended to read as 

follows: 

‘‘A subpoena may not be used to compel 

a witness to appear at an examination or 

interview before trial, but a subpoena may be 

used to obtain witnesses for a deposition or 

a court of inquiry. In accordance with 

subsection (f)(4)(B) of this rule, a subpoena 

duces tecum to produce books, papers, 

documents, data, or other objects or 

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investigation pursuant to Article 32 may be 

issued, following the convening authority’s 

order directing such pretrial investigation, by 

either the investigating officer appointed 

under R.C.M. 405(d)(1) or the counsel 

representing the United States. 

A subpoena normally is prepared, signed, 

and issued in duplicate on the official forms. 

See Appendix 7 for an example of a 

Subpoena with certificate of service (DD 

Form 453) and a Travel Order (DD Form 453– 

1).’’ 

(m) The Discussion immediately following 

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

follows: 

‘‘If practicable, a subpoena should be 

issued in time to permit service at least 24 

hours before the time the witness will have 

to travel to comply with the subpoena. 

Informal service. Unless formal service is 

advisable, the person who issued the 

subpoena may mail it to the witness in 

duplicate, enclosing a postage-paid envelope 

bearing a return address, with the request 

that the witness sign the acceptance of 

service on the copy and return it in the 

envelope provided. The return envelope 

should be addressed to the person who 

issued the subpoena. The person who issued 

the subpoena should include with it a 

statement to the effect that the rights of the 

witness to fees and mileage will not be 

impaired by voluntary compliance with the 

request and that a voucher for fees and 

mileage will be delivered to the witness 

promptly on being discharged from 

attendance. 

Formal service. Formal service is advisable 

whenever it is anticipated that the witness 

will not comply voluntarily with the 

subpoena. Appropriate fees and mileage must 

be paid or tendered. See Article 47. If formal 

service is advisable, the person who issued 

the subpoena must assure timely and 

economical service. That person may do so 

by serving the subpoena personally when the 

witness is in the vicinity. When the witness 

is not in the vicinity, the subpoena may be 

sent in duplicate to the commander of a 

military installation near the witness. Such 

commanders should give prompt and 

effective assistance, issuing travel orders for 

their personnel to serve the subpoena when 

necessary. 

Service should ordinarily be made by a 

person subject to the code. The duplicate 

copy of the subpoena must have entered 

upon it proof of service as indicated on the 

form and must be promptly returned to the 

person who issued the subpoena. If service 

cannot be made, the person who issued the 

subpoena must be informed promptly. A 

stamped, addressed envelope should be 

provided for these purposes. 

For purposes of this Rule, hardship is 

defined as any situation which would 

substantially preclude reasonable efforts to 

appear that could be solved by providing 

transportation for fees and mileage to which 

the witness is entitled for appearing at the 

hearing in question.’’ 

(n) The Discussion immediately following 

R.C.M. 703(e)(2)(G)(i) is amended to read as 

follows: 

‘‘A warrant of attachment (DD Form 454) 

may be used when necessary to compel a 

witness to appear or produce evidence under 

this rule. See Appendix 7. A warrant of 

attachment is a legal order addressed to an 

official directing that official to have the 

person named in the order brought before a 

court. 

Subpoenas issued under R.C.M. 703 are 

Federal process and a person not subject to 

the code may be prosecuted in a Federal 

civilian court under Article 47 for failure to 

comply with a subpoena issued in 

compliance with this rule and formally 

served. 

Failing to comply with such a subpoena is 

a felony offense, and may result in a fine or 

imprisonment, or both, at the discretion of 

the district court. The different purposes of 

the warrant of attachment and criminal 

complaint under Article 47 should be borne 

in mind. The warrant of attachment, 

available without the intervention of civilian 

judicial proceedings, has as its purpose the 

obtaining of the witness’ presence, testimony, 

or documents. The criminal complaint, 

prosecuted through the civilian Federal 

courts, has as its purpose punishment for 

failing to comply with process issued by 

military authority. It serves to vindicate the 

military interest in obtaining compliance 

with its lawful process. 

For subpoenas issued for pretrial 

investigation pursuant to Article 32 under 

subsection (f)(4)(B), the General CourtMartial convening authority with jurisdiction 

over the case may issue a warrant of 

attachment to compel production of 

documents.’’ 

(o) The Discussion immediately following 

R.C.M. 703(f)(1) is amended to read as 

follows: 

‘‘Relevance is defined by Mil. R. Evid 401. 

Relevant evidence is necessary when it is not 

cumulative and when it would contribute to 

a party’s presentation of the case in some 

positive way on a matter in issue. A matter 

is not in issue when it is stipulated as a fact. 

The discovery and introduction of classified 

or other government information is 

controlled by Mil. R. Evid. 505 and 506.’’ 

(p) The following Discussion is added 

immediately after R.C.M. 704(f)(4)(B): 

‘‘Public Law 112–81, The FY12 National 

Defense Authorization Act, § 542, amended 

Article 47 to allow the issuance of subpoenas 

duces tecum for Article 32 hearings. 

Although the amended language cites Article 

32(b), this new subpoena power extends to 

documents subpoenaed by the investigating 

officer, whether requested by the defense or 

the government.’’ 

(q) The Discussion immediately following 

R.C.M. 809(a) is amended to read as follows: 

‘‘Article 48 makes punishable ‘‘direct’’ 

contempt, as well as ‘‘indirect’’ or 

‘‘constructive’’ contempt. ‘‘Direct’’ contempt 

is that which is committed in the presence 

of the court-martial or its immediate 

proximity. ‘‘Presence’’ includes those places 

outside the courtroom itself, such as waiting 

areas, deliberation rooms, and other places 

set aside for the use of the court-martial 

while it is in session. ‘‘Indirect’’ or 

‘‘constructive’’ contempt is non-compliance 

with lawful writs, processes, orders, rules, 

decrees, or commands of the court-martial. A 

‘‘direct’’ or ‘‘indirect’’ contempt may be 

actually seen or heard by the court-martial, 

in which case it may be punished summarily. 

See subsection (b)(1) below. A ‘‘direct’’ or 

‘‘indirect’’ contempt may also be a contempt 

not actually observed by the court-martial; 

for example, when an unseen person makes 

loud noises, whether inside or outside the 

courtroom, which impede the orderly 

progress of the proceedings. In such a case 

the procedures for punishing for contempt 

are more extensive. See subsection (b)(2) 

below. 

The words ‘‘any person,’’ as used in Article 

48, include all persons, whether or not 

subject to military law, except the military 

judge, members, and foreign nationals 

outside the territorial limits of the United 

States who are not subject to the code. The 

military judge may order the offender 

removed whether or not contempt 

proceedings are held. It may be appropriate 

to warn a person whose conduct is improper 

that persistence in a course of behavior may 

result in removal or punishment for 

contempt. See R.C.M. 804, 806. 

Each contempt may be separately 

punished. 

A person subject to the code who commits 

contempt may be tried by court-martial or 

otherwise disciplined under Article 134 for 

such misconduct in addition to or instead of 

punishment for contempt. See paragraph 108, 

Part IV. See also Article 98. The 2010 

amendment of Article 48 expanded the 

contempt power of military courts to enable 

them to enforce orders, such as discovery 

orders or protective orders regarding 

evidence, against military or civilian 

attorneys. Persons not subject to military 

jurisdiction under Article 2, having been 

duly subpoenaed, may be prosecuted in 

Federal civilian court under Article 47 for 

neglect or refusal to appear or refusal to 

qualify as a witness or to testify or to produce 

evidence.’’ 

(r) The Discussion immediately following 

R.C.M. 906(b)(5) is amended to read as 

follows: 

‘‘Each specification may state only one 

offense. R.C.M. 307(c)(4). A duplicitous 

specification is one which alleges two or 

more separate offenses. Lesser included 

offenses (see paragraph 3, Part IV) are not 

separate, nor is a continuing offense 

involving separate acts. The sole remedy for 

a duplicitous specification is severance of the 

specification into two or more specifications, 

each of which alleges a separate offense 

contained in the duplicitous specification. 

However, if the duplicitousness is combined 

with or results in other defects, such as 

misleading the accused, other remedies may 

be appropriate. See subsection (b)(3) of this 

rule. See also R.C.M. 907(b)(3). 

(s) The Discussion immediately following 

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

follows: 

‘‘Unreasonable multiplication of charges as 

applied to findings and sentence is a 

limitation on the military’s discretion to 

charge separate offenses and does not have a 

foundation in the Constitution. The concept 

is based on reasonableness and prohibition 

against prosecutorial overreaching. In 

contrast, multiplicity is grounded in the 

Double Jeopardy clause of the Fifth 


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Amendment. It prevents an accused from 

being twice punished for one offense if it is 

contrary to the intent of Congress. See R.C.M. 

907(b)(3). Therefore, a motion for relief from 

unreasonable multiplication of charges as 

applied to findings and sentence differs from 

a motion to dismiss on the grounds of 

multiplicity. 

The following non-exhaustive factors 

should be considered when determining 

whether two or more offenses are 

unreasonably multiplied: Whether the 

specifications are aimed at distinctly separate 

criminal acts; whether they represent or 

exaggerate the accused’s criminality; whether 

they unreasonably increase his or her 

exposure to punishment; and whether they 

suggest prosecutorial abuse of discretion in 

drafting of the specifications. Because 

prosecutors are permitted to plead in the 

alternative based on exigencies of proof, a 

ruling on this motion ordinarily should be 

deferred until after findings are entered.’’ 

(t) The Discussion immediately following 

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

follows: 

‘‘Multiplicity is a legal concept, arising 

from the Double Jeopardy clause of the Fifth 

Amendment, which provides that no person 

shall be put in jeopardy twice for the same 

offense. Absent legislative intent to the 

contrary, an accused cannot be convicted and 

punished for violations of two or more 

statutes if they arise from a single act. Where 

Congress intended to impose multiple 

punishments for the same act, imposition of 

such sentence does not violate the 

Constitution. 

Multiplicity differs from unreasonable 

multiplication of charges. If two offenses are 

not multiplicious, they nonetheless may 

constitute an unreasonable multiplication of 

charges as applied to findings or sentence. 

See R.C.M. 906(b)(12). Unreasonable 

multiplication of charges is a limitation on 

the military’s discretion to charge separate 

offenses; it does not have a foundation in the 

Constitution; and it is based on 

reasonableness and the prohibition against 

prosecutorial overreaching. The military 

judge is to determine, in his or her discretion, 

whether the charges constitute unreasonable 

multiplication of charges as applied to 

findings or sentencing. See R.C.M. 906(b)(12). 

To determine if two charges are 

multiplicious, the practitioner should first 

determine whether they are based on 

separate acts. If so, the charges are not 

multiplicious because separate acts may be 

charged and punished separately. If the 

charges are based upon a single act, the 

practitioner should next determine if it was 

Congress’s intent to impose multiple 

convictions and punishments for the same 

act. Although there are multiple sources to 

determine Congressional intent (e.g., the 

statute itself or legislative history), when 

there is no overt expression, Congressional 

intent may be inferred based on the elements 

of the charged statutes and their relationship 

to each other. If each statute contains an 

element not contained in the other, it may be 

inferred that Congress intended they be 

charged and punished separately. Likewise, 

if each statue contains the same elements, it 

may be inferred that Congress did not intend 

they be charged and punished separately. A 

lesser included offense will always be 

multiplicious if charged separately, but 

offenses do not have to be lesser included to 

be multiplicious. 

Ordinarily, a specification should not be 

dismissed for multiplicity before trial. The 

less serious of any multiplicious 

specifications shall be dismissed after 

findings have been reached. Due 

consideration must be given, however, to 

possible post-trial or appellate action with 

regard to the remaining specification.’’ 

(u) The Discussion immediately following 

R.C.M. 910(a)(1) is amended to read as 

follows: 

‘‘See paragraph 3, Part IV, concerning 

lesser included offenses. When the plea is to 

a lesser included offense without the use of 

exceptions and substitutions, the defense 

counsel should provide a written revised 

specification to be included in the record as 

an appellate exhibit. 

A plea of guilty to a lesser included offense 

does not bar the prosecution from proceeding 

on the offense as charged. See also 

subsection (g) of this rule. 

A plea of guilty does not prevent the 

introduction of evidence, either in support of 

the factual basis for the plea, or, after 

findings are entered, in aggravation. See 

R.C.M. 1001(b)(4). 

(v) The Discussion immediately following 

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

follows: 

‘‘Examples of ignorance or mistake which 

need only exist in fact include: Ignorance of 

the fact that the person assaulted was an 

officer; belief that property allegedly stolen 

belonged to the accused; belief that a 

controlled substance was really sugar. 

Examples of ignorance or mistake which 

must be reasonable as well as actual include: 

Belief that the accused charged with 

unauthorized absence had permission to go; 

belief that the accused had a medical 

‘‘profile’’ excusing shaving as otherwise 

required by regulation. Some offenses require 

special standards of conduct (see, for 

example, paragraph 68, Part IV, Dishonorable 

failure to maintain sufficient funds); the 

element of reasonableness must be applied in 

accordance with the standards imposed by 

such offenses. 

Examples of offenses in which the 

accused’s intent or knowledge is immaterial 

include: Any rape of a child, or any sexual 

assault or sexual abuse of a child when the 

child is under 12 years old. However, such 

ignorance or mistake may be relevant in 

extenuation and mitigation. 

See subsection (l)(1) of this rule concerning 

ignorance or mistake of law.’’ 

(w) The Discussion immediately following 

R.C.M. 918(a)(1) is amended to read as 

follows: 

‘‘Exceptions and Substitutions. One or 

more words or figures may be excepted from 

a specification and, when necessary, others 

substituted, if the remaining language of the 

specification, with or without substitutions, 

states an offense by the accused which is 

punishable by the court-martial. Changing 

the date or place of the offense may, but does 

not necessarily, change the nature or identity 

of an offense. 

If A and B are joint accused and A is 

convicted but B is acquitted of an offense 

charged, A should be found guilty by 

excepting the name of B from the 

specification as well as any other words 

indicating the offense was a joint one. 

Lesser Included Offenses. If the evidence 

fails to prove the offense charged but does 

prove an offense necessarily included in the 

offense charged, the factfinder may find the 

accused not guilty of the offense charged but 

guilty of the lesser included offense. See 

paragraph 3 of Part IV concerning lesser 

included offenses. 

Offenses arising from the same act or 

transaction. The accused may be found guilty 

of two or more offenses arising from the same 

act or transaction, whether or not the offenses 

are separately punishable. But see R.C.M. 

906(b)(12); 907(b)(3)(B); 1003(c)(1)(C). 

(x) The Discussion immediately following 

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

follows: 

‘‘Multiplicity is addressed in R.C.M. 

907(b)(3)(B). Unreasonable multiplication of 

charges is addressed in R.C.M. 906(b)(12).’’ 

(y) The following Discussion is inserted 

immediately after R.C.M. 1103(b)(3)(N): 

‘‘Per R.C.M. 1114(f), consult service 

regulations for distribution of promulgating 

orders.’’ 

(z) The following Discussion is inserted 

immediately after R.C.M. 1103(g)(3): 

‘‘Subsections (b)(3)(N) and (g)(3) of this 

rule were added to implement Article 54(e), 

UCMJ, in compliance with the National 

Defense Authorization Act for Fiscal Year 

2012 (Pub. L. 112–81 § 586). Service of a 

copy of the record of trial on a victim is 

prescribed in R.C.M. 1104(b)(1)(E).’’ 

(aa) The following Discussion is added 

immediately after R.C.M. 1104(b)(1)(E): 

‘‘Subsection (b)(1)(E) of this rule was 

added to implement Article 54(e), UCMJ, in 

compliance with the National Defense 

Authorization Act for Fiscal Year 2012 (Pub. 

L. 112–81 § 586). The contents of the victim’s 

record of trial is prescribed in R.C.M. 

1103(g)(3)(C). 

Promulgating orders are to be distributed 

in accordance with R.C.M. 1114(f).’’ 

Section 3. The Discussion to Part IV of the 

Manual for Courts-Martial, United States, is 

amended as follows: 

(a) The Discussion immediately following 

Article 79(b)(1)(c) is amended to read as 

follows: 

‘‘The ‘‘elements test’’ is the proper method 

for determining lesser included offenses. See 

United States v. Jones, 68 M.J. 465 (C.A.A.F. 

2010); United States v. Schmuck, 489 U.S. 

705 (1985); Appendix 23 of this Manual. 

Paragraph 3b(1) was amended to comport 

with the elements test, which requires that 

the elements of the lesser offense must be a 

subset of the elements of the charged offense. 

The elements test does not require identical 

statutory language, and normal principals of 

statutory interpretation are permitted. The 

elements test is necessary to safeguard the 

due process requirement of notice to a 

criminal defendant.’’ 

(b) The Discussion immediately following, 

paragraph 3, Article 79(b)(5), Conviction of 

lesser included offenses, is amended to read 

as follows: 


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‘‘Practitioners must consider lesser 

included offenses on a case-by-case basis. See 

United States v. Jones, 68 M.J. 465 (C.A.A.F. 

2010); United States v. Alston, 69 M.J. 214 

(C.A.A.F. 2010); discussion following 

paragraph 3b(1)(c) above. The lesser included 

offenses listed in Appendix 12A were 

amended in 2013 to comport with the 

elements test; however, practitioners must 

analyze each lesser included offense on a 

case-by-case basis. See Appendix 23 of this 

Manual.’’ 

(c) The following Discussion is inserted 

immediately after paragraph 60, Article 

134(b)—General Article: 

‘‘The terminal element is merely the 

expression of one of the clauses under Article 

134. See paragraph c below for an 

explanation of the clauses and rules for 

drafting specifications. More than one clause 

may be alleged and proven; however, proof 

of only one clause will satisfy the terminal 

element. For clause 3 offenses, the military 

judge may judicially notice whether an 

offense is capital. See Mil. R. Evid. 202.’’ 

(d) The following Discussion is inserted 

immediately after paragraph 60, Article 

134(c)(6)(a)—General Article: 

‘‘Clauses 1 and 2 are theories of liability 

that must be expressly alleged in a 

specification so that the accused will be 

given notice as to which clause or clauses to 

defend against. The words ‘‘to the prejudice 

of good order and discipline in the armed 

forces’’ encompass both paragraph c(2)(a), 

prejudice to good order and discipline, and 

paragraph c(2)(b), breach of custom of the 

Service. A generic sample specification is 

provided below: 

‘‘In that llll, (personal jurisdiction 

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

ll 20ll, (commit elements of Article 134 

clause 1 or 2 offense), and that said conduct 

(was to the prejudice of good order and 

discipline in the armed forces) (and) (was of 

a nature to bring discredit upon the armed 

forces).’’ 

If clauses 1 and 2 are alleged together in 

the terminal element, the word ‘‘and’’ should 

be used to separate them. Any clause not 

proven beyond a reasonable doubt should be 

excepted from the specification at findings. 

See R.C.M. 918(a)(1). See also Appendix 23. 

Although using the conjunctive ‘‘and’’ to 

connect the two theories of liability is 

recommended, a specification connecting the 

two theories with the disjunctive ‘‘or’’ is 

sufficient to provide the accused reasonable 

notice of the charge against him. See 

Appendix 23.’’ 

(e) The following Discussion is inserted 

immediately after paragraph 60, Article 

134(c)(6)(b)—General Article: 

‘‘The words ‘‘an offense not capital’’ are 

sufficient to provide notice to the accused 

that a clause 3 offense has been charged and 

are meant to include all crimes and offenses 

not capital. A generic sample specification 

for clause 3 offenses is provided below: 

In that llll, (personal jurisdiction 

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

llll 20ll, (commit: address each 

element), an offense not capital, in violation 

of (name or citation of statute). 

In addition to alleging each element of the 

federal or assimilated statute, practitioners 

should consider including, when appropriate 

and necessary, words of criminality (e.g., 

wrongfully, knowingly, or willfully).’’ 

Changes to Appendix 22, Analysis of 

the Military Rules of Evidence 

(a) Delete the Note at the start of the first 

paragraph, Section I, General Provisions. 

(b) Amend Section I, General Provisions to 

add the following: 

‘‘2012 Amendment: On December 1, 2011, 

the Federal Rules of Evidence (Fed. R. Evid.) 

were amended by restyling the rules to make 

them simpler to understand and use, without 

changing the substantive meaning of any 

rule. 

After considering these changes to the 

Federal Rules, the Joint Service Committee 

on Military Justice (hereinafter ‘‘the 

committee’’) made significant changes to the 

Military Rules of Evidence (Mil. R. Evid.) in 

2012. In addition to making stylistic changes 

to harmonize these rules with the Federal 

Rules, the committee also made changes to 

ensure that the rules addressed the 

admissibility of evidence, rather than the 

conduct of the individual actors. Like the 

Federal Rules of Evidence, these rules 

ultimately dictate whether evidence is 

admissible at courts-martial and, therefore, it 

is appropriate to phrase the rules with 

admissibility as the focus, rather than a focus 

on the actor (i.e., the commanding officer, 

military judge, accused, etc.). 

The rules were also reformatted to achieve 

clearer presentation. The committee used 

indented paragraphs with headings and 

hanging indents to allow the practitioner to 

distinguish between different subsections of 

the rules. The restyled rules also reduce the 

use of inconsistent terms that are intended to 

mean the same thing but may, because of the 

inconsistent use, be misconstrued by the 

practitioner to mean something different. 

With most changes, the committee made 

special effort to avoid any style improvement 

that might result in a substantive change in 

the application of the rule. However, in some 

rules, the committee rewrote the rule with 

the express purpose to change the 

substantive content of the rule in order to 

affect the application of the rule in practice. 

In the analysis of each rule, the committee 

clearly indicates whether the changes are 

substantive or merely stylistic. The reader is 

encouraged to consult the analysis of each 

rule if he or she has questions as to whether 

the committee intended that a change to the 

rule have an effect on a ruling of 

admissibility.’’ 

(c) The analysis following M.R.E. 101 is 

amended to add the following language: 

‘‘2012 Amendment: In subsection (a), the 

phrase ‘‘including summary courts-martial’’ 

was removed because Rule 1101 already 

addresses the applicability of these rules to 

summary courts-martial. In subsection (b), 

the word ‘‘shall’’ was changed to ‘‘will’’ 

because the committee agreed with the 

approach of the Advisory Committee on 

Evidence Rules to minimize the use of words 

such as ‘‘shall’’ and ‘‘should’’ because of the 

potential disparity in application and 

interpretation of whether the word is 

precatory or proscriptive. See Fed. R. Evid. 

101, Restyled Rules Committee Note. In 

making this change, the committee did not 

intend to change any result in any ruling on 

evidence admissibility. 

The discussion section was added to this 

rule to alert the practitioner that discussion 

sections, which previously did not appear in 

Part III of the Manual, are included in this 

edition to elucidate the committee’s 

understanding of the rules. The discussion 

sections do not have the force of law and may 

be changed by the committee without an 

Executive Order, as warranted by changes in 

applicable case law. The discussion sections 

should be considered treatise material and 

are non-binding on the practitioner. 

The committee also revised this rule for 

stylistic reasons and to align it with the 

Federal Rules of Evidence but in doing so did 

not intend to change any result in any ruling 

on evidence admissibility.’’ 

(d) The analysis following M.R.E. 103 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(e) The analysis following M.R.E. 104 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(f) The title of the analysis section of 

M.R.E. 105 is changed to ‘‘Limiting Evidence 

that is Not Admissible Against Other Parties 

or for Other Purposes.’’ 

(g) The analysis following M.R.E. 105 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(h) The analysis following M.R.E. 106 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

SECTION II—Judicial Notice 

(i) The analysis following M.R.E. 201 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence. Former 

subsection (d) was subsumed into subsection 

(c) and the remaining subsections were 

renumbered accordingly. In making these 

changes, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(j) The analysis following M.R.E. 202 is 

amended to add the following language: 

‘‘2012 Amendment: Former Rule 201A was 

renumbered so that it now appears as Rule 

202. In previous editions, Rule 202 did not 

exist and therefore no other rules were 

renumbered as a result of this change. The 

phrase ‘‘in accordance with Mil. R. Evid. 

104’’ was added to subsection (b) to clarify 

that Rule 104 controls the military judge’s 

relevancy determination. 


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The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

SECTION III—EXCLUSIONARY RULES 

AND RELATED MATTERS CONCERNING 

SELF-INCRIMINATION, SEARCH AND 

SEIZURE, AND EYEWITNESS 

IDENTIFICATION 

(k) The analysis following M.R.E. 301 is 

amended to add the following language: 

‘‘2012 Amendment: In subsection (c), the 

phrase ‘‘concerning the issue of guilt or 

innocence’’ was removed because this 

subsection applies to the presentencing 

phase of the trial as well as the merits phase. 

The use of the term ‘‘concerning the issue of 

guilt or innocence’’ incorrectly implied that 

the subsection only referred to the merits 

phase. The rule was renamed ‘‘Limited 

Waiver,’’ changed from ‘‘Waiver by the 

accused,’’ to indicate that when an accused 

who is on trial for two or more offenses 

testifies on direct as to only one of the 

offenses, he has only waived his rights with 

respect to that offense and no other. Also, the 

committee moved this subsection up in the 

rule and renumbered it in order to address 

the issue of limited waivers earlier because 

of the importance of preserving the accused’s 

right against self-incrimination. 

In subsection (d), the committee intends 

that the word ‘‘answer’’ be defined as ‘‘a 

witness’s response to a question posed.’’ 

Black’s Law Dictionary 100 (8th ed. 2004). 

Subsection (d) only applies when the 

witness’s response to the question posed may 

be incriminating. It does not apply when the 

witness desires to make a statement that is 

unresponsive to the question asked for the 

purpose of gaining protection from the 

privilege. 

Former subsections (d) and (f)(2) were 

combined for ease of use. The issues 

typically arise chronologically in the course 

of a trial, because a witness often testifies on 

direct without asserting the privilege and 

then, during the ensuing cross-examination, 

asserts the privilege. 

Former subsection (b)(2) was moved to a 

discussion section because it addresses 

conduct rather than the admissibility of 

evidence. See supra, General Provisions 

Analysis. Also, the committee changed the 

word ‘‘should’’ to ‘‘may’’ in light of CAAF’s 

holding in United States v. Bell, 44 M.J. 403 

(C.A.A.F. 2006). In that case, CAAF held that 

Congress did not intend for Article 31(b) 

warnings to apply at trial, and noted that 

courts have the discretion, but not an 

obligation, to warn witnesses on the stand. 

Bell, 44 M.J. at 405. If a member testifies at 

an Article 32 hearing or court-martial 

without receiving Article 31(b) warnings, his 

Fifth Amendment rights have not been 

violated and those statements can be used 

against him at subsequent proceedings. Id. at 

405–06. 

As a result of the various changes, the 

committee renumbered the remaining 

subsections accordingly. The committee also 

revised this rule for stylistic reasons but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(l) The analysis following M.R.E. 302 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(m) The analysis following M.R.E. 303 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to ensure 

that it addressed admissibility rather than 

conduct. See supra, General Provisions 

Analysis. In doing so, the committee did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(n) The analysis following M.R.E. 304 is 

amended to add the following language: 

‘‘2012 Amendment: Former subsection (c), 

which contains definitions of words used 

throughout the rule, was moved so that it 

immediately follows subsection (a) and is 

highly visible to the practitioner. Former 

subsection (h)(3), which discusses denials, 

was moved to subsection (a)(2) so that it is 

included near the beginning of the rule to 

highlight the importance of an accused’s 

right to remain silent. The committee moved 

and renumbered the remaining subsections 

so the rule generally follows the chronology 

of how the issues might arise at trial. In doing 

so, the committee did not intend to change 

any result in any ruling on evidence 

admissibility. 

In subsection (b), the committee added the 

term ‘‘allegedly’’ in reference to derivative 

evidence to clarify that evidence is not 

derivative unless a military judge finds, by a 

preponderance of the evidence, that it is 

derivative. 

In subsections (c)(5), (d), (f)(3)(A), and 

(f)(7), the committee replaced the word 

‘‘shall’’ with ‘‘will’’ or ‘‘must’’ because the 

committee agreed with the approach of the 

Advisory Committee on Evidence Rules to 

minimize the use of words such as ‘‘shall’’ 

because of the potential disparity in 

application and interpretation of whether the 

word is precatory or proscriptive. 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(o) The analysis following M.R.E. 305 is 

amended to add the following language: 

‘‘2012 Amendment: The definition of 

‘‘person subject to the code’’ was revised to 

clarify that it includes a person acting as a 

knowing agent only in subsection (c). 

Subsection (c) covers the situation where a 

person subject to the code is interrogating an 

accused, and therefore an interrogator would 

include a knowing agent of a person subject 

to the code, such as local law enforcement 

acting at the behest of a military investigator. 

The term ‘‘person subject to the code’’ is also 

used in subsection (f), which discusses a 

situation in which a person subject to the 

code is being interrogated. If a knowing agent 

of a person subject to the code is being 

interrogated, subsection (f) is inapplicable, 

unless that agent himself is subject to the 

code. 

The definition of ‘‘custodial interrogation’’ 

was moved to subsection (b) from subsection 

(d) in order to co-locate the definitions. The 

definition is derived from Miranda v. 

Arizona, 384 U.S. 436, 444–45 (1966), and 

Berkemer v. McCarty, 468 U.S. 420, 442 

(1984). 

‘‘Accused’’ is defined as ‘‘a person against 

whom legal proceedings have been 

initiated.’’ Black’s Law Dictionary 23 (8th ed. 

2004). ‘‘Suspect’’ is defined as ‘‘a person 

believed to have committed a crime or 

offense.’’ Id. at 1287. In subsection (c)(1), the 

word ‘‘accused’’ is used in the first sentence 

because the rule generally addresses the 

admissibility of a statement at a courtmartial, at which legal proceedings have been 

initiated against the individual. Throughout 

the remainder of the rule, ‘‘accused’’ and 

‘‘suspect’’ are used together to elucidate that 

an interrogation that triggers the need for 

Article 31 warnings will often take place 

before the individual has become an accused 

and is still considered only a suspect. 

Although not specifically outlined in 

subsection (c), the committee intends that 

interrogators and investigators fully comply 

with the requirements of Miranda v. Arizona, 

384 U.S. 436 (1966). When a suspect is 

subjected to custodial interrogation, the 

prosecution may not use statements 

stemming from that custodial interrogation 

unless it demonstrates that the suspect was 

warned of his rights Id. at 444. At a 

minimum, Miranda requires that ‘‘the person 

must be warned that he has a right to remain 

silent, that any statement he does make may 

be used as evidence against him, and that he 

has a right to the presence of an attorney, 

either retained or appointed. The defendant 

may waive effectuation of these rights, 

provided the waiver is made voluntarily, 

knowingly and intelligently.’’ Id. A person 

subject to the code who is being interrogated 

may be entitled to both Miranda warnings 

and Article 31(b) warnings, depending on the 

circumstances. 

The committee changed the titles of 

subsections (c)(2) and (c)(3) to ‘‘Fifth 

Amendment Right to Counsel’’ and ‘‘Sixth 

Amendment Right to Counsel’’ respectively 

because practitioners are more familiar with 

those terms. In previous editions, the 

subsections did not expressly state which 

right was implicated. Although the rights 

were clear from the text of the former rules, 

the new titles will allow practitioners to 

quickly find the desired rule. 

Subsection (c)(3) is entitled ‘‘Sixth 

Amendment Right to Counsel’’ even though 

the protections of subsection (c)(3) exceed 

the constitutional minimal standard 

established by the Sixth Amendment and 

interpreted by the Supreme Court in Montejo 

v. Louisiana, 556 U.S. 778 (2009). In Montejo, 

the Court overruled its holding in Michigan 

v. Jackson, 475 U.S. 625 (1986), and found 

that a defendant’s request for counsel at an 

arraignment or similar proceeding or an 

appointment of counsel by the court does not 

give rise to the presumption that a 

subsequent waiver by the defendant during a 

police-initiated interrogation is invalid. 556 

U.S. at 798. In the military system, defense 

counsel is detailed to a court-martial. R.C.M. 

501(b). The accused need not affirmatively 

request counsel. Under the Supreme Court’s 

holding in Montejo, the detailing of defense 

counsel would not bar law enforcement from 


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initiating an interrogation with the accused 

and seeking a waiver of the right to have 

counsel present. However, subsection (c)(3) 

provides more protection than the Supreme 

Court requires. Under this subsection, if an 

accused is represented by counsel, either 

detailed or retained, he or she may not be 

interrogated without the presence of counsel. 

This is true even if, during the interrogation, 

the accused waives his right to have counsel 

present. If charges have been preferred but 

counsel has not yet been detailed or retained, 

the accused may be interrogated if he 

voluntarily waives his right to have counsel 

present. 

The words ‘‘after such request’’ were added 

to subsection (c)(2) to elucidate that any 

statements made prior to a request for 

counsel are admissible, assuming, of course, 

that Article 31(b) rights were given. Without 

that phrase, the rule could be read to indicate 

that all statements made during the 

interview, even those made prior to the 

request, were inadmissible. This was not the 

intent of the committee and therefore the 

change was necessary. 

The word ‘‘shall’’ was changed to ‘‘will’’ in 

subsections (a), (d), and (f) because the 

committee agreed with the approach of the 

Advisory Committee on Evidence Rules to 

minimize the use of ‘‘shall’’ because of the 

potential disparity in application and 

interpretation of whether the word is 

precatory or proscriptive. 

In subsection (e)(1), the committee retained 

the requirement that the accused’s waiver of 

the privilege against self-incrimination and 

the waiver of the right to counsel must be 

affirmative. This rule exceeds the minimal 

constitutional requirement. In Berghuis v. 

Thompkins, 130 S. Ct. 2250 (2010), the 

defendant remained mostly silent during a 

three-hour interrogation and never verbally 

stated that he wanted to invoke his rights to 

counsel and to remain silent. The Supreme 

Court held that the prosecution did not need 

to show that the defendant expressly waived 

his rights, and that an implicit waiver is 

sufficient. Berghuis, 130 S. Ct. at 2261. 

Despite the Supreme Court’s holding, under 

this rule, in order for a waiver to be valid, 

the accused or suspect must actually take 

affirmative action to waive his rights. The 

committee recognizes that this rule places a 

greater burden on the government to show 

that the waiver is valid, and it was the intent 

of the committee to provide more protection 

to the accused or suspect than is required 

under the Berghuis holding. 

In subsection (f)(2), the committee replaced 

the word ‘‘abroad’’ with ‘‘outside of a state, 

district, commonwealth, territory, or 

possession of the United States’’ in order to 

clearly define where the rule regarding 

foreign interrogations applies. 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(p) The analysis following M.R.E. 311 is 

amended to add the following language: 

‘‘2012 Amendment: The definition of 

‘‘unlawful’’ was moved from subsection (c) to 

subsection (b) so that it immediately 

precedes the subsection in which the term is 

first used in the rule. Other subsections were 

moved so that they generally follow the order 

in which the issues described in the 

subsections arise at trial. The committee 

renumbered the subsections accordingly and 

titled each subsection to make it easier for 

the practitioner to find the relevant part of 

the rule. The committee also subsumed 

former subsection (d)(2)(c), addressing a 

motion to suppress derivative evidence, into 

subsection (d)(1) because a motion to 

suppress seized evidence must follow the 

same procedural requirements as a motion to 

suppress derivative evidence. 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(q) The analysis following M.R.E. 312 is 

amended to add the following language: 

‘‘2012 Amendment: Former subsection 

(b)(2) was moved to a discussion paragraph 

because it addresses the conduct of the 

examiner rather than the admissibility of 

evidence. See supra, General Provisions 

Analysis. Failure to comply with the 

requirement that a person of the same sex 

conduct the examination does not make the 

examination unlawful or the evidence 

inadmissible. 

In subsection (c)(2)(a), the words ‘‘clear 

indication’’ were replaced with ‘‘probable 

cause’’ because the committee determined 

that ‘‘clear indication’’ was not wellunderstood by practitioners nor properly 

defined in case law, whereas ‘‘probable 

cause’’ is a recognized Fourth Amendment 

term. The use of the phrase ‘‘clear 

indication’’ likely came from the Supreme 

Court’s holding in Schmerber v. California, 

384 U.S. 757 (1966). In that case, the Court 

stated: ‘‘In the absence of a clear indication 

that in fact such evidence will be found, 

these fundamental human interests require 

law officers to suffer the risk that such 

evidence may disappear unless there is an 

immediate search.’’ Schmerber, 384 U.S. at 

770. However, in United States v. Montoya 

de Hernandez, 473 U.S. 531 (1985), the 

Supreme Court clarified that it did not intend 

to create a separate Fourth Amendment 

standard when it used the words ‘‘clear 

indication.’’ Montoya de Hernandez, 473 

U.S. at 540 (‘‘[W]e think that the words in 

Schmerber were used to indicate the 

necessity for particularized suspicion that the 

evidence sought might be found within the 

body of the individual, rather than as 

enunciating still a third Fourth Amendment 

threshold between ‘‘reasonable suspicion’’ 

and ‘‘probable cause’’). The committee 

decided that the appropriate standard for a 

search under subsection (c)(2)(a) is probable 

cause. The committee made this decision 

with the understanding that doing so raises 

the level of suspicion required to perform a 

search under this subsection beyond that 

which was required in previous versions of 

this rule. The same reasoning applies to the 

change in subsection (d), where the 

committee also replaced the words ‘‘clear 

indication’’ with ‘‘probable cause.’’ This 

decision is consistent with the Court of 

Military Appeals’ opinion in United States v. 

Bickel, 30 M.J. 277, 279 (C.M.A. 1990) (‘‘We 

have no doubt as to the constitutionality of 

such searches and seizures based on probable 

cause’’). 

In subsection (d), the committee replaced 

the term ‘‘involuntary’’ with 

‘‘nonconsensual’’ for the sake of consistency 

and uniformity throughout the subsection. 

The committee did not intend to change the 

rule in any practical way by using 

‘‘nonconsensual’’ in the place of 

‘‘involuntary.’’ 

A discussion paragraph was added 

following subsection (e) to address a 

situation in which a person is compelled to 

ingest a substance in order to locate property 

within that person’s body. This paragraph 

was previously found in subsection (e), and 

the committee removed it from the rule itself 

because it addresses conduct rather than the 

admissibility of evidence. See supra, General 

Provisions Analysis. 

The committee added the last line of 

subsection (f) to conform the rule to CAAF’s 

holding in United States v. Stevenson, 66 

M.J. 15 (C.A.A.F. 2008). In Stevenson, the 

court held that any additional intrusion, 

beyond what is necessary for medical 

treatment, is a search within the meaning of 

the Fourth Amendment. Id. at 18 (‘‘The 

Supreme Court has not adopted a de minimis 

exception to the Fourth Amendment’s 

warrant requirement’’). The committee 

moved the first line of former subsection (f) 

to a discussion paragraph because it 

addresses conduct rather than the 

admissibility of evidence, and is therefore 

more appropriately addressed in a discussion 

paragraph. See supra, General Provisions 

Analysis. 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(r) The analysis following M.R.E. 313 is 

amended to add the following language: 

‘‘2012 Amendment: The definition of 

‘‘inventory’’ was added to subsection (c) to 

further distinguish inventories from 

inspections. The committee also revised this 

rule for stylistic reasons and to ensure that 

it addressed admissibility rather than 

conduct. See supra, General Provisions 

Analysis. In doing so, the committee did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(s) The analysis following M.R.E. 314 is 

amended to add the following language: 

‘‘2012 Amendment: Language was added to 

subsection (a) to elucidate that the rules as 

written afford at least the minimal amount of 

protection required under the Constitution as 

applied to servicemembers. If new case law 

is developed after the publication of these 

rules which raises the minimal constitutional 

standards for the admissibility of evidence, 

that standard will apply to evidence 

admissibility, rather than the standard 

established under these rules. 

In subsection (c), the committee 

intentionally limited the ability of a 


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commander to search persons or property 

upon entry or exit from the installation alone, 

rather than anywhere on the installation, 

despite the indication of some courts in dicta 

that security personnel can search a 

personally owned vehicle anywhere on a 

military installation based on no suspicion at 

all. See, e.g., United States v. Rogers, 549 

F.2d 490, 493 (8th Cir. 1973). Allowing 

suspicionless searches anywhere on a 

military installation too drastically narrows 

an individual’s privacy interest. Although 

individuals certainly have a diminished 

expectation of privacy when they are on a 

military installation, they do not forgo their 

privacy interest completely. 

The committee added a discussion section 

below subsection (c) to address searches 

conducted contrary to a treaty or agreement. 

That material was previously located in 

subsection (c) and was moved to the 

discussion because it addresses conduct 

rather than the admissibility of evidence. See 

supra, General Provisions Analysis. 

Although not explicitly stated in 

subsection (e)(2), the committee intends that 

the Supreme Court’s holding in Georgia v. 

Randolph apply to this subsection. 547 U.S. 

103 (2006) (holding that a warrantless search 

was unreasonable if a physically present cotenant expressly refused to give consent to 

search, even if another co-tenant had given 

consent). 

In subsection (f)(2), the phrase ‘‘reasonably 

believed’’ was changed to ‘‘reasonably 

suspected’’ to align with recent case law and 

to alleviate any confusion that ‘‘reasonably 

believed’’ established a higher level of 

suspicion required to conduct a stop-andfrisk than required by the Supreme Court in 

Terry v. Ohio, 392 U.S. 1 (1968). The 

‘‘reasonably suspected’’ standard conforms to 

the language of the Supreme Court in 

Arizona v. Johnson, 555 U.S. 323, 328 (2009), 

in which the Court stated: ‘‘To justify a 

patdown of the driver or a passenger during 

a traffic stop, however, just as in the case of 

a pedestrian reasonably suspected of criminal 

activity, the police must harbor reasonable 

suspicion that the person subjected to the 

frisk is armed and dangerous.’’ The 

committee intends that this standard, and no 

higher, be required before an individual can 

be stopped and frisked under this subsection. 

Additionally, the committee added a 

discussion paragraph following this 

subsection to further expound on the nature 

and scope of the search, based on case law. 

See, e.g., Terry, 392 U.S. at 30–31; 

Pennsylvania v. Mimms, 434 U.S. 106 (1977). 

In subsection (f)(3), the committee changed 

the phrase ‘‘reasonable belief’’ to ‘‘reasonable 

suspicion’’ for the same reasons discussed 

above. The committee added the discussion 

section to provide more guidance on the 

nature and scope of the search, based on case 

law. See, e.g., Michigan v. Long, 463 U.S. 

1032, 1049 (1983) (‘‘the search of the 

passenger compartment of an automobile, 

limited to those areas in which a weapon 

may be placed or hidden, is permissible if the 

police officer possesses a reasonable belief 

based on ‘specific and articulable facts 

which, taken together with the rational 

inferences from those facts, reasonably 

warrant’ the officers in believing that the 

suspect is dangerous and the suspect may 

gain immediate control of weapons’’); 

Pennsylvania v. Mimms, 434 U.S. 106 (1977) 

(there was no Fourth Amendment violation 

when the driver was ordered out of the car 

after a valid traffic stop but without any 

suspicion that he was armed and dangerous 

because ‘‘what is at most a mere 

inconvenience cannot prevail when balanced 

against legitimate concerns for the officer’s 

safety’’); Maryland v. Wilson, 519 U.S. 408 

(1997) (extending the holding in Mimms to 

passengers as well as drivers). 

The committee moved the language from 

former subsection (g)(2), describing the 

search of an automobile incident to a lawful 

arrest of an occupant, to the discussion 

paragraph immediately following the 

subsection because it addresses conduct 

rather than the admissibility of evidence. See 

supra, General Provisions Analysis. The 

discussion section is based on the Supreme 

Court’s holding in Arizona v. Gant, 556 U.S. 

332 (2009) (‘‘Police may search a vehicle 

incident to a recent occupant’s arrest only if 

the arrestee is within reaching distance of the 

passenger compartment at the time of the 

search or it is reasonable to believe the 

vehicle contains evidence of the offense of 

arrest’’). 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(t) The analysis following M.R.E. 315 is 

amended to add the following language: 

‘‘2012 Amendment: Former subsection (h) 

was moved so that it immediately follows 

subsection (a). It was changed to a discussion 

paragraph because it generally applies to the 

entire rule, rather than any particular 

subsection and also because it addresses 

conduct rather than the admissibility of 

evidence. See supra, General Provisions 

Analysis. 

In subsection (b), the committee changed 

the term ‘‘authorization to search’’ to ‘‘search 

authorization’’ to align it with the term more 

commonly used by practitioners and law 

enforcement. The committee moved former 

subsection (c)(4) to a discussion paragraph 

because it addresses conduct rather than the 

admissibility of evidence. See Supra, General 

Provisions Analysis. 

The committee moved the second sentence 

in former subsection (d)(2) to subsection (d) 

to elucidate that its content applies to both 

commanders under subsection (d)(1) and 

military judges or magistrates under 

subsection (d)(2). The committee did so in 

reliance on CAAF’s decision in United States 

v. Huntzinger, 69 M.J. 1 (C.A.A.F. 2010), 

which held that a commander is not per se 

disqualified from authorizing a search under 

this rule even if he has participated in 

investigative activities in furtherance of his 

command responsibilities. 

The committee moved former subsection 

(h)(4), addressing the execution of search 

warrants, to subsection (e), now entitled 

‘‘Who May Search,’’ so that it was co-located 

with the subsection discussing the execution 

of search authorizations. 

In subsection (f)(2), the word ‘‘shall’’ was 

changed to ‘‘will’’ because the committee 

agreed with the approach of the Advisory 

Committee on Evidence Rules to minimize 

the use of words such as ‘‘shall’’ and 

‘‘should’’ because of the potential disparity 

in application and interpretation of whether 

the word is precatory or proscriptive. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility. 

Subsection (g) was revised to include a 

definition of exigency rather than to provide 

examples that may not encompass the wide 

range of situations where exigency might 

apply. The definition is derived from 

Supreme Court jurisprudence. See Kentucky 

v. King, 131 S. Ct. 1849 (2011). The 

committee retained the language concerning 

military operational necessity as an exigent 

circumstance because this rule may be 

applied to a unique military context where it 

might be difficult to communicate with a 

person authorized to issue a search 

authorization. See, e.g., United States v. 

Rivera, 10 M.J. 55 (C.M.A. 1980) (noting that 

exigency might exist because of difficulties in 

communicating with an authorizing official, 

although the facts of that case did not 

support such a conclusion). The committee 

intends that nothing in this rule would 

prohibit a law enforcement officer from 

entering a private residence without a 

warrant to protect the individuals inside 

from harm, as that is not a search under the 

Fourth Amendment. See, e.g., Brigham City 

v. Stuart, 547 U.S. 398 (2006) (holding that, 

regardless of their subjective motives, police 

officers were justified in entering a home 

without a warrant, under exigent 

circumstances exception to warrant 

requirement, as they had an objectively 

reasonable basis for believing that an 

occupant was seriously injured or 

imminently threatened with injury). 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(u) The analysis following M.R.E. 316 is 

amended to add the following language: 

‘‘2012 Amendment: In subsection (a), the 

committee added the word ‘‘reasonable’’ to 

align the rule with the language found in the 

Fourth Amendment of the U.S. Constitution 

and Mil. R. Evid. 314 and 315. 

In subsection (c)(5)(C), the committee 

intends that the term ‘‘reasonable fashion’’ 

include all action by law enforcement that 

the Supreme Court has established as lawful 

in its plain view doctrine. See, e.g., Arizona 

v. Hicks, 480 U.S. 321, 324–25 (1987) 

(holding that there was no search when an 

officer merely recorded serial numbers that 

he saw on a piece of stereo equipment, but 

that the officer did conduct a search when he 

moved the equipment to access serial 

numbers on the bottom of the turntable); 

United States v. Lee, 274 U.S. 559, 563 (1927) 

(use of a searchlight does not constitute a 

Fourth Amendment violation); it is not the 

committee’s intent to establish a stricter 

definition of plain view than that required by 


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the Constitution, as interpreted by the 

Supreme Court. An officer may seize the item 

only if his conduct satisfies the three-part test 

prescribed by the Supreme Court: (1) He does 

not violate the Fourth Amendment by 

arriving at the place where the evidence 

could be plainly viewed; (2) its incriminating 

character is ‘‘readily apparent’’; and (3) he 

has a lawful right of access to the object 

itself. Horton v. California, 496 U.S. 128, 

136–37 (1990). 

The committee also revised this rule for 

stylistic reasons and to ensure that it 

addressed admissibility rather than conduct. 

See supra, General Provisions Analysis. In 

doing so, the committee did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(v) The analysis following M.R.E. 317 is 

amended to add the following language: 

‘‘2012 Amendment: The committee moved 

former subsections (b) and (c)(3) to a 

discussion paragraph because they address 

conduct rather than the admissibility of 

evidence. See supra, General Provisions 

Analysis. 

The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(w) The analysis following M.R.E. 318 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

SECTION IV—RELEVANCY AND ITS 

LIMITS 

(x) The title of the analysis section of 

M.R.E. 401 is changed to ‘‘Test for Relevant 

Evidence.’’ 

(y) The analysis following M.R.E. 401 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(z) The title of the analysis section of 

M.R.E. 402 is changed to ‘‘General 

Admissibility of Relevant Evidence.’’ 

(aa) The analysis following M.R.E. 402 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(bb) The analysis following M.R.E. 403 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(cc) The title of the analysis section of 

M.R.E. 404 is changed to ‘‘Character 

Evidence; Crime or Other Acts.’’ 

(dd) The analysis following M.R.E. 404 is 

amended to add the following language: 

‘‘2012 Amendment: The word ‘‘alleged’’ 

was added to references to the victim 

throughout this rule. Stylistic changes were 

also made to align it with the Federal Rules 

of Evidence but in doing so did not intend 

to change any result in any ruling on 

evidence admissibility.’’ 

(ee) The analysis following M.R.E. 405 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ff) The analysis following M.R.E. 406 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(gg) The analysis following M.R.E. 407 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(hh) The title of the analysis section of 

M.R.E. 408 is changed to ‘‘Compromise 

Offers and Negotiations.’’ 

(ii) The analysis following M.R.E. 408 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(jj) The title of the analysis section of 

M.R.E. 409 is changed to ‘‘Offers to Pay 

Medical and Similar Expenses.’’ 

(kk) The analysis following M.R.E. 409 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ll) The title of the analysis section of 

M.R.E. 410 is changed to ‘‘Pleas, Plea 

Discussions, and Related Statements.’’ 

(mm) The analysis following M.R.E. 410 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(nn) The analysis following M.R.E. 411 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(oo) The title of the analysis section of 

M.R.E. 412 is changed to ‘‘Sex Offense Cases: 

The Victim’s Sexual Behavior or 

Predisposition.’’ 

(pp) The title of the analysis section of 

M.R.E. 413 is changed to ‘‘Similar Crimes in 

Sexual Offense Cases.’’ 

(qq) The analysis following M.R.E. 403 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

changed the time requirement in subsection 

(b) to align with the time requirements in 

Mil. R. Evid. 412 and the Federal Rules of 

Evidence. This change is also in conformity 

with military practice in which the military 

judge may accept pleas shortly after referral 

and sufficiently in advance of trial. 

Additionally, the committee revised 

subsection (d) to align with the Federal Rules 

of Evidence. 

The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(rr) The title of the analysis section of 

M.R.E. 414 is changed to ‘‘Similar Crimes in 

Child-Molestation Cases.’’ 

(ss) The analysis following M.R.E. 414 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

changed the time requirement in subsection 

(b) to align with the time requirements in 

Mil. R. Evid. 412 and the Federal Rules of 

Evidence. This change is also in conformity 

with military practice in which the military 

judge may accept pleas shortly after referral 

and sufficiently in advance of trial. 

Additionally, the committee revised 

subsection (d) to align with the Federal Rules 

of Evidence. 

The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

SECTION V—PRIVILEGES 

(tt) The title of the analysis section of 

M.R.E. 501 is changed to ‘‘Privilege in 

General.’’ 

(uu) The analysis following M.R.E. 501 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(vv) The analysis following M.R.E. 502 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(ww) The analysis following M.R.E. 503 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(xx) The analysis following M.R.E. 504 is 

amended to add the following language: 

‘‘2012 Amendment: Subsection (c)(2)(D) 

was added pursuant to Exec. Order No. 

13593. The committee also revised this rule 

for stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(yy) The analysis following M.R.E. 505 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

significantly restructured this rule to bring 

greater clarity and regularity to military 

practice. The changes focus primarily on 

expanding the military judge’s explicit 

authority to conduct ex parte pretrial 

conferences in connection with classified 

information and detailing when the military 

judge is required to do so, limiting the 

disclosure of classified information per order 

of the military judge, specifically outlining 

the process by which the accused gains 

access to and may request disclosure of 

classified information, and the procedures for 

using classified material at trial. The changes 


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were intended to ensure that classified 

information is not needlessly disclosed while 

at the same time ensuring that the accused’s 

right to a fair trial is maintained. Some of the 

language was adopted from the Military 

Commissions Rules of Evidence and the 

Classified Information Protection Act.’’ 

(zz) The analysis following M.R.E. 506 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

significantly revised this rule to both bring 

greater clarity to it and also to align it with 

changes made to Mil. R. Evid. 505.’’ 

(aaa) The analysis following M.R.E. 507 is 

amended to add the following language: 

‘‘2012 Amendment: The committee added 

subsection (b) to define terms that are used 

throughout the rule and added subsection 

(e)(1) to permit the military judge to hold an 

in camera review upon request by the 

prosecution. The committee also revised this 

rule for stylistic reasons but in doing so did 

not intend to change any result in any ruling 

on evidence admissibility.’’ 

(bbb) The analysis following M.R.E. 509 is 

amended to add the following language: 

‘‘2012 Amendment: The committee added 

the language ‘‘courts-martial, military 

judges’’ to this rule in light of CAAF’s 

holding in United States v. Matthews, 68 M.J. 

29 (C.A.A.F. 2009). In that case, CAAF held 

that this rule as it was previously written 

created an implied privilege that protected 

the deliberative process of a military judge 

from disclosure and that testimony that 

revealed the deliberative thought process of 

the military judge is inadmissible. Matthews, 

68 M.J. at 38–43. The changes simply express 

what the court found had previously been 

implied.’’ 

(ccc) The analysis following M.R.E. 511 is 

amended to add the following language: 

‘‘2012 Amendment: Titles were added to 

the subsections of this rule for clarity and 

ease of use.’’ 

(ddd) The analysis following M.R.E. 513 is 

amended to add the following language: 

‘‘2012 Amendment: In Exec. Order No. 

13593, the President removed 

communications about spouse abuse as an 

exception to the spousal privilege by deleting 

the words ‘‘spouse abuse’’ and ‘‘the person of 

the other spouse or’’ from Mil. R. Evid. 

513(d)(2), thus expanding the overall scope 

of the privilege. In removing the spouse 

abuse exception to Mil. R. Evid. 513, the 

privilege is now consistent with Mil. R. Evid. 

514 in that spouse victim communications to 

a provider who qualifies as both a 

psychotherapist for purposes of Mil. R. Evid. 

513 and as a victim advocate for purposes of 

Mil. R. Evid. 514 are covered. 

In subsection (e)(3), the committee changed 

the language to further expand the military 

judge’s authority and discretion to conduct in 

camera reviews. The committee also revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(eee) The analysis following M.R.E. 514 is 

amended to add the following language: 

‘‘2012 Amendment: Like the 

psychotherapist-patient privilege created by 

Mil. R. Evid. 513, Mil. R. Evid. 514 

establishes a victim advocate-victim privilege 

for investigations or proceedings authorized 

under the Uniform Code of Military Justice. 

Implemented as another approach to 

improving the military’s overall effectiveness 

in addressing the crime of sexual assault, 

facilitating candor between victims and 

victim advocates, and mitigating the impact 

of the court-martial process on victims, the 

rule specifically emerged in response to 

concerns raised by members of Congress, 

community groups and The Defense Task 

Force on Sexual Assault in the Military 

Services (DTFSAMS). In its 2009 report, 

DTFSAMS noted: 35 states had a privilege for 

communications between victim advocates 

and victims of sexual assault; victims did not 

believe they could communicate 

confidentially with medical and 

psychological support services provided by 

DoD; there was interference with the victimvictim advocate relationship and continuing 

victim advocate services when the victim 

advocate was identified as a potential 

witness in a court-martial; and service 

members reported being ‘‘re-victimized’’ 

when their prior statements to victim 

advocates were used to cross-examine them 

in court-martial proceedings. DTFSAMS 

recommended that Congress ‘‘enact a 

comprehensive military justice privilege for 

communications between a Victim Advocate 

and a victim of sexual assault.’’ Both the DoD 

Joint Service Committee on Military Justice 

and Congress began considering a privilege. 

The committee chose to model a proposed 

Mil. R. Evid. 514 on Mil. R. Evid. 513, 

including its various exceptions, in an effort 

to balance the privacy of the victim’s 

communications with a victim advocate 

against the accused’s legitimate needs. 

Differing proposals for a victim advocate 

privilege were suggested as part of the 

FY2011 National Defense Authorization Act 

(NDAA), but were not enacted. A victim 

advocate privilege passed the House as part 

of the FY2012 NDAA, while the Senate 

version would have required the President to 

issue a Military Rule of Evidence providing 

a privilege. Congress removed both 

provisions because Mil. R. Evid. 514 was 

pending the President’s signature and this 

rule accomplished the objective of ensuring 

privileged communications for sexual assault 

victims. 

Under subsection (a), General Rule, the 

words ‘‘under the Uniform Code of Military 

Justice’’ in Mil. R. Evid. 514 mean that the 

privilege only applies to misconduct 

situations constituting a case that could 

result in UCMJ proceedings. It does not apply 

in situations in which the offender is not 

subject to UCMJ jurisdiction. There is no 

intent to apply Mil. R. Evid. 514 in any 

proceeding other than those authorized 

under the UCMJ. However, service 

regulations dictate how the privilege is 

applied to non-UCMJ proceedings. 

Furthermore, this rule only applies to 

communications between a victim advocate 

and the victim of a sexual or violent offense. 

Under subsection (b), Definitions, the 

committee intended the definition of ‘‘victim 

advocate’’ to include, but not be limited to, 

personnel performing victim advocate duties 

within the DoD Sexual Assault Prevention 

and Response Office (such as a Sexual 

Assault Response Coordinator), and the DoD 

Family Advocacy Program (such as a 

domestic abuse victim advocate). To 

determine whether an official’s duties 

encompass victim advocate responsibilities, 

DoD and military service regulations should 

be consulted. A victim liaison appointed 

pursuant to the Victim and Witness 

Assistance Program is not a ‘‘victim 

advocate’’ for purposes of this rule, nor are 

personnel working within an Equal 

Opportunity or Inspector General office. For 

purposes of this rule, the committee intended 

‘‘violent offense’’ to mean an actual or 

attempted murder, manslaughter, rape, 

sexual assault, aggravated assault, robbery, 

assault consummated by a battery, or similar 

offense. A simple assault may be a violent 

offense where the violence has been 

physically attempted or menaced. A mere 

threatening in words is not a violent offense. 

The committee recognizes that this rule will 

be applicable in situations where there is a 

factual dispute as to whether a sexual or 

violent offense occurred and whether a 

person actually suffered direct physical or 

emotional harm from such an offense. The 

fact that such findings have not been 

judicially established shall not prevent 

application of this rule to alleged victims 

reasonably intended to be covered by this 

rule. 

Under subsection (d), Exceptions, the 

exceptions to Mil. R. Evid. 514 are similar to 

the exceptions found in Mil. R. Evid. 513, 

and are intended to be applied in the same 

manner. Mil. R. Evid. 514 does not include 

comparable exceptions found within Mil. R. 

Evid. 513(d)(2) and 513(d)(7). In drafting the 

‘‘constitutionally required’’ exception, the 

committee intended that communication 

covered by the privilege would be released 

only in the narrow circumstances where the 

accused could show harm of constitutional 

magnitude if such communication was not 

disclosed. In practice, this relatively high 

standard of release is not intended to invite 

a fishing expedition for possible statements 

made by the victim, nor is it intended to be 

an exception that effectively renders the 

privilege meaningless. If a military judge 

finds that an exception to this privilege 

applies, special care should be taken to 

narrowly tailor the release of privileged 

communications to only those statements 

which are relevant and whose probative 

value outweighs unfair prejudice. The fact 

that otherwise privileged communications 

are admissible pursuant to an exception of 

Mil. R. Evid. 514 does not prohibit a military 

judge from imposing reasonable limitations 

on cross-examination. See Delaware v. Van 

Arsdall, 475 U.S. 673, 679 (1986); United 

States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 

2011); United States v. Ellerbrock, 70 M.J. 

314 (C.A.A.F. 2011).’’ 

SECTION VI—WITNESSES 

(fff) The title of the analysis section of 

M.R.E. 601 is changed to ‘‘Competency to 

Testify in General.’’ 

(ggg) The analysis following M.R.E. 601 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 


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(hhh) The title of the analysis section of 

M.R.E. 602 is changed to ‘‘Need for Personal 

Knowledge.’’ 

(iii) The analysis following M.R.E. 602 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(jjj) The title of the analysis section of 

M.R.E. 603 is changed to ‘‘Oath or 

Affirmation to Testify Truthfully.’’ 

(kkk) The analysis following M.R.E. 603 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(lll) The analysis following M.R.E. 604 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

amended this rule to match the Federal Rules 

of Evidence. However, the word ‘‘qualified’’ 

is undefined both in these rules and in the 

Federal Rules. R.C.M. 502(e)(1) states that the 

Secretary concerned may prescribe 

qualifications for interpreters. Practitioners 

should therefore refer to the Secretary’s 

guidance to determine if a translator is 

qualified under this rule. The committee also 

revised this rule for stylistic reasons and to 

align it with the Federal Rules of Evidence 

but in doing so did not intend to change any 

result in any ruling on evidence 

admissibility.’’ 

(mmm) The title of the analysis section of 

M.R.E. 605 is changed to ‘‘Military Judge’s 

Competency as a Witness.’’ 

(nnn) The analysis following M.R.E. 605 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

subsection (a) for stylistic reasons and to 

align it with the Federal Rules of Evidence 

but in doing so did not intend to change any 

result in any ruling on evidence 

admissibility.’’ 

(ooo) The title of the analysis section of 

M.R.E. 606 is changed to ‘‘Member’s 

Competency as a Witness.’’ 

(ppp) The analysis following M.R.E. 606 is 

amended to add the following language: 

‘‘2012 Amendment: The committee added 

subsection (c) to this rule to align it with the 

Federal Rules of Evidence. The committee 

also revised this rule for stylistic reasons but 

in doing so did not intend to change any 

result in any ruling on evidence 

admissibility.’’ 

(qqq) The title of the analysis section of 

M.R.E. 607 is changed to ‘‘Who May Impeach 

a Witness.’’ 

(rrr) The analysis following M.R.E. 607 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(sss) The title of the analysis section of 

M.R.E. 608 is changed to ‘‘A Witness’s 

Character for Truthfulness or 

Untruthfulness.’’ 

(ttt) The analysis following M.R.E. 608 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(uuu) The title of the analysis section of 

M.R.E. 609 is changed to ‘‘Impeachment by 

Evidence of a Criminal Conviction.’’ 

(vvv) The analysis following M.R.E. 609 is 

amended to add the following language: 

‘‘2012 Amendment: Pursuant to Exec. 

Order No. 13593, the committee amended 

subsections (a), (b)(2), and (c)(1) to conform 

the rule with the Federal Rules of Evidence. 

The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(www) The analysis following M.R.E. 610 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(xxx) The title of the analysis section of 

M.R.E. 611 is changed to ‘‘Mode and Order 

of Examining Witnesses and Presenting 

Evidence.’’ 

(yyy) The analysis following M.R.E. 611 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

amended subsection (d)(3) to conform with 

the United States Supreme Court’s holding in 

Maryland v. Craig, 497 U.S. 836 (1990) and 

CAAF’s holding in United States v. Pack, 65 

M.J. 381 (C.A.A.F. 2007). In Craig, the 

Supreme Court held that, in order for a child 

witness to be permitted to testify via closedcircuit one-way video, three factors must be 

met: (1) The trial court must determine that 

it is necessary ‘‘to protect the welfare of the 

particular child witness’’; (2) the trial court 

must find ‘‘that the child witness would be 

traumatized, not by the courtroom generally, 

but by the presence of the defendant’’; and 

(3) the trial court must find ‘‘that the 

emotional distress suffered by the child 

witness in the presence of the defendant is 

more than de minimis.’’ Craig, 497 at 855– 

56. In Pack, CAAF held that, despite the 

Supreme Court’s decision in Crawford v. 

Washington, the Supreme Court did not 

implicitly overrule Craig and that all three 

factors must be present in order to permit a 

child witness to testify remotely. Pack, 65 

M.J. at 384–85. This rule as previously 

written contradicted these cases because it 

stated that any one of four factors, rather than 

all three of those identified in Craig, would 

be sufficient to allow a child to testify 

remotely. The committee made the changes 

to ensure that this subsection aligned with 

the relevant case law. 

The language for subsection (5) was taken 

from 18 U.S.C. § 3509, which covers child 

victims’ and child witnesses’ rights. There is 

no comparable Federal Rule of Evidence but 

the committee believes that a military judge 

may find that an Article 39a session outside 

the presence of the accused is necessary to 

make a decision regarding remote testimony. 

The committee intended to limit the number 

of people present at the Article 39a session 

in order to make the child feel more at ease, 

which is why the committee included the 

language limiting those present to ‘‘a 

representative’’ of the defense and 

prosecution, rather than multiple 

representatives. 

The committee also revised this rule for 

stylistic reasons but in doing so did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(zzz) The title of the analysis section of 

M.R.E. 612 is changed to ‘‘Writing Used to 

Refresh a Witness’s Memory.’’ 

(aaaa) The analysis following M.R.E. 612 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

subsection (b) of this rule to align with the 

Federal Rules of Evidence. The committee 

also revised this rule for stylistic reasons but 

in doing so did not intend to change any 

result in any ruling on evidence 

admissibility.’’ 

(bbbb) The title of the analysis section of 

M.R.E. 613 is changed to ‘‘Witness’s Prior 

Statement.’’ 

(cccc) The analysis following M.R.E. 613 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(dddd) The title of the analysis section of 

M.R.E. 614 is changed to ‘‘Court-Martial’s 

Calling or Examining a Witness.’’ 

(eeee) The analysis following M.R.E. 614 is 

amended to add the following language: 

‘‘2012 Amendment: In subsection (a), the 

committee substituted the word ‘‘relevant’’ 

for ‘‘appropriate’’ because relevance is the 

most accurate threshold for admissibility 

throughout these rules. Additionally, the 

committee added the phrase ‘‘Following the 

opportunity for review by both parties’’ to 

subsection (b) to align it with the standard 

military practice to allow the counsel for 

both sides to review a question posed by the 

members, and to voice objections before the 

military judge rules on the propriety of the 

question. The committee also revised this 

rule for stylistic reasons and to align it with 

the Federal Rules of Evidence but in doing 

so did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(ffff) The title of the analysis section of 

M.R.E. 615 is changed to ‘‘Excluding 

Witnesses.’’ 

(gggg) The analysis following M.R.E. 615 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

SECTION VII—OPINIONS AND EXPERT 

TESTIMONY 

(hhhh) The analysis following M.R.E. 701 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(hhhh) The title of the analysis section of 

M.R.E. 702 is changed to ‘‘Testimony by 

Expert Witnesses.’’ 

(iiii) The analysis following M.R.E. 702 is 

amended to add the following language: 


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‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(kkkk) The title of the analysis section of 

M.R.E. 703 is changed to ‘‘Bases of an 

Expert’s Opinion of Testimony.’’ 

(llll) The analysis following M.R.E. 703 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule to align with the Federal Rules of 

Evidence but in doing so the committee did 

not intend to change any result in any ruling 

on evidence admissibility.’’ 

(mmmm) The analysis following M.R.E. 

704 is amended to add the following 

language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(nnnn) The title of the analysis section of 

M.R.E. 705 is changed to ‘‘Disclosing the 

Facts or Data Underlying an Expert’s 

Opinion.’’ 

(oooo) The analysis following M.R.E. 705 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(pppp) The title of the analysis section of 

M.R.E. 706 is changed to ‘‘Court-Appointed 

Expert Witnesses.’’ 

(qqqq) The analysis following M.R.E. 706 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

removed subsection (b) because the 

committee believes that the authority of the 

military judge to tell members that he or she 

has called an expert witness is implicit in his 

or her authority to obtain the expert, and 

therefore the language was unnecessary. 

Although the language has been removed, the 

committee intends that the military judge 

may, in the exercise of discretion, notify the 

members that he or she called the expert. The 

committee also revised this rule for stylistic 

reasons but in doing so did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(rrrr) The analysis following M.R.E. 707 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons but in doing so 

did not intend to change any result in any 

ruling on evidence admissibility.’’ 

SECTION VIII—HEARSAY 

(ssss) The title of the analysis section to 

M.R.E. 801 is changed to ‘‘Definitions that 

Apply to this Section; Exclusions from 

Hearsay.’’ 

(tttt) The analysis following M.R.E. 801 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

changed the title of subsection (2) from 

‘‘Admission by party-opponent’’ to ‘‘An 

Opposing Party’s Statement’’ to conform to 

the Federal Rules of Evidence. The term 

‘‘admission’’ is misleading because a 

statement falling under this exception need 

not be an admission and also need not be 

against the party’s interest when spoken. In 

making this change, the committee did not 

intend to change any result in any ruling on 

evidence admissibility.’’ 

(uuuu) The title of the analysis section of 

M.R.E. 802 is changed to ‘‘The Rule Against 

Hearsay.’’ 

(vvvv) The analysis following M.R.E. 802 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(wwww) The title of the analysis section of 

M.R.E. 803 is changed to ‘‘Exceptions to the 

Rule Against Hearsay—Regardless of 

Whether the Declarant is Available as a 

Witness.’’ 

(xxxx) The analysis following M.R.E. 803 is 

amended to add the following language: 

‘‘2012 Amendment: The committee 

removed subsection (24), which stated: 

‘‘Other Exceptions: [Transferred to M.R.E. 

807]’’ because practitioners are generally 

aware that Mil. R. Evid. 807 covers 

statements not specifically covered in this 

rule, and therefore the subsection was 

unnecessary. The committee also revised this 

rule for stylistic reasons and to align it with 

the Federal Rules of Evidence but in doing 

so did not intend to change any result in any 

ruling on evidence admissibility.’’ 

(yyyy) The title of the analysis section of 

M.R.E. 804 is changed to ‘‘Exceptions to the 

Rule Against Hearsay—When the Declarant is 

Unavailable as a Witness.’’ 

(zzzz) The analysis following M.R.E. 804 is 

amended to add the following language: 

‘‘2012 Amendment: In subsection (b)(3)(B), 

the committee intentionally left undisturbed 

the phrase ‘‘and is offered to exculpate the 

accused,’’ despite the fact that it is not 

included in the current or former versions of 

the Federal Rules of Evidence. Unlike in Mil. 

R. Evid. 803, the committee did not remove 

subsection (5), which directs practitioners to 

the residual exception in Mil. R. Evid. 807, 

because doing so would cause the remaining 

subsections to be renumbered. Although 

subsection (5) is not necessary, renumbering 

the subsections within this rule would have 

a detrimental effect on legal research and also 

would lead to inconsistencies in numbering 

between these rules and the Federal Rules. 

The committee also revised this rule for 

stylistic reasons and to align it with the 

Federal Rules of Evidence but in doing so did 

not intend to change any result in any ruling 

on evidence admissibility.’’ 

(aaaaa) The analysis following M.R.E. 805 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(bbbbb) The title of the analysis section of 

M.R.E. 806 is changed to ‘‘Attacking and 

Supporting the Declarant’s Credibility.’’ 

(ccccc) The analysis following M.R.E. 806 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ddddd) The analysis following M.R.E. 807 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

SECTION IX—AUTHENTICATION AND 

IDENTIFICATION 

(eeeee) The title of the analysis section of 

M.R.E. 901 is changed to ‘‘Authenticating or 

Identifying Evidence.’’ 

(fffff) The analysis following M.R.E. 901 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule to align with the Federal Rules of 

Evidence but in doing so did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(ggggg) The title of the analysis section 

M.R.E. 902 is changed to ‘‘Evidence that is 

Self-Authenticating.’’ 

(hhhhh) The analysis following M.R.E. 902 

is amended to add the following language: 

‘‘2012 Amendment: The committee added 

language to subsection (11) to permit the 

military judge to admit non-noticed 

documents even after the trial has 

commenced if the offering party shows good 

cause to do so. The committee also revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(iiiii) The title of the analysis section of 

M.R.E. 903 is changed to ‘‘Subscribing 

Witness’s Testimony.’’ 

(jjjjj) The analysis following M.R.E. 903 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

SECTION X—CONTENTS OF WRITINGS, 

RECORDINGS, AND PHOTOGRAPHS 

(kkkkk) The title of the analysis section of 

M.R.E. 1001 is changed to ‘‘Definitions that 

Apply to this Section.’’ 

(lllll) The analysis following M.R.E. 1001 is 

amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule to align with the Federal Rules of 

Evidence but in doing so did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(mmmmm) The analysis following M.R.E. 

1002 is amended to add the following 

language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(nnnnn) The analysis following M.R.E. 

1003 is amended to add the following 

language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ooooo) The analysis following M.R.E. 1004 

is amended to add the following language: 


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64884 Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ppppp) The title of the analysis section of 

M.R.E. 1005 is changed to ‘‘Copies of Public 

Records to Prove Content.’’ 

(qqqqq) The analysis following M.R.E. 1005 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(rrrrr) The title of the analysis section of 

M.R.E. 1006 is changed to ‘‘Summaries to 

Prove Content.’’ 

(sssss) The analysis following M.R.E. 1006 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(ttttt) The title of the analysis section of 

M.R.E. 1007 is changed to ‘‘Testimony or 

Statement of a Party to Prove Content.’’ 

(uuuuu) The analysis following M.R.E. 

1007 is amended to add the following 

language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(vvvvv) The analysis following M.R.E. 1008 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

SECTION XI—MISCELLANEOUS RULES 

(wwwww) The analysis following M.R.E. 

1101 is amended to add the following 

language: 

‘‘2012 Amendment: The committee revised 

this rule to align with the Federal Rules of 

Evidence but in doing so did not intend to 

change any result in any ruling on evidence 

admissibility.’’ 

(xxxxx) The analysis following M.R.E. 1102 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

(yyyyy) The analysis following M.R.E. 1103 

is amended to add the following language: 

‘‘2012 Amendment: The committee revised 

this rule for stylistic reasons and to align it 

with the Federal Rules of Evidence but in 

doing so did not intend to change any result 

in any ruling on evidence admissibility.’’ 

Changes to Appendix 23, Analysis of the 

Punitive Articles 

(a) Paragraph 3, Article 79, Lesser included 

offenses, subparagraph b(4) Specific lesser 

included offenses, delete the paragraphs 

beginning with the words ‘‘2012 

Amendment’’ and ending with ‘‘(‘‘C.A.A.F. 

2008).’’ and insert in their place: 

‘‘2013 Amendment. See analysis in 

paragraph 3b(1) above. Lesser included 

offenses (LIO) listings were removed from 

each punitive article in paragraphs 1–113 

(except paragraphs 1 and 3), Part IV, and 

were moved to a new Appendix 12A. The 

LIO listings are determined based on the 

elements of the greater offense, but are not 

binding. The President does not have the 

authority to create LIOs by simply listing 

them in the Manual. United States v. Jones, 

68 M.J. 465, 471–12 (C.A.A.F. 2010). 

Therefore, practitioners should use Appendix 

12A only as a guide. To determine if an 

offense is lesser included, the elements test 

must be used. Id. at 470. The offenses are not 

required to possess identical statutory 

language; rather, the court uses normal 

principles of statutory construction to 

determine the meaning of each element. See 

Jones, 68 M.J. at 470–73; United States v. 

Oatney, 45 M.J. 185 (C.A.A.F. 1996); and 

Schmuck v. United States, 489 U.S. 705 

(1989). 

Article 134 offenses generally will not be 

lesser included offenses of enumerated 

offenses in Articles 80–133. See United 

States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011); 

United States v. McMurrin, 70 M.J. 15 

(C.A.A.F. 2011). Article 134 specifications 

must contain the ‘‘terminal element.’’ See 

paragraphs 60b and 60c(6)(a) in Part IV. See 

also United States v. Fosler, 70 M.J. 225 

(C.A.A.F. 2011); United States v. Ballan, 71 

M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3).’’ 

(b) Paragraph 43, Article 118, Murder, 

subparagraph a. is amended as follows: 

‘‘2012 Amendment: This statute was 

modified pursuant to the National Defense 

Authorization Act for Fiscal Year 2012, P.L. 

112–81, 31 December 2011, to conform to 

renamed sexual assault offenses in Article 

120 and Article 120b. The changes took effect 

on 28 June 2012.’’ 

(c) Paragraph 45, Article 120, Rape and 

sexual assault generally, the first paragraph 

of the analysis beginning with the word 

‘‘2012’’ and ending with the number ‘‘28’’ is 

amended as follows: 

‘‘2012 Amendment: This paragraph was 

substantially revised by section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012 [FY12 NDAA], P.L. 112–81, 31 

December 2011. Amendments contained in 

this section took effect on 28 June 2012. Sec. 

541(f), Pub. L. 112–81. On 28 June 2012, a 

modified paragraph 45, ‘‘Rape and sexual 

assault generally,’’ replaced the 2007 version 

of paragraph 45, ‘‘Rape, sexual assault, and 

other sexual misconduct.’’ The analysis 

related to prior versions of Article 120 is 

located as follows: for offenses committed on 

or before 30 September 2007, see Appendix 

27; for offenses committed during the period 

1 October 2007 through 27 June 2012, see 

Appendix 28.’’ 

(d) Paragraph 45, Article 120, Rape and 

sexual assault generally, is amended as 

follows: 

Subparagraphs b, c, d, e, and f are deleted. 

(e) Paragraph 45c, Article 120c, Other 

sexual misconduct, the first paragraph of the 

analysis beginning with the word ‘‘2012’’ and 

ending with the number ‘‘registration’’ is 

amended as follows: 

‘‘2012 Amendment: This paragraph is new 

and is based on section 541 of the National 

Defense Authorization Act for Fiscal Year 

2012 [FY12 NDAA], Pub. L. 112–81, 31 

December 2011. This section took effect on 

28 June 2012. Sec. 541(f), Pub. L. 112–81. 

The new Article 120c. encompasses offenses 

contained in the 2007 version of Article 

120(k), Article 120(l), and Article 120(n), and 

is intended to criminalize non-consensual 

sexual misconduct that ordinarily subjects an 

accused to sex offender registration.’’ 

(f) Paragraph 45c, Article 120c, Other 

sexual misconduct, is amended as follows: 

Subparagraphs b, c, d, e, and f are deleted. 

(g) Paragraph 51, Article 125, Sodomy, 

subparagraph c. is amended as follows: 

‘‘c. Explanation. This paragraph is based 

on paragraph 204 of MCM, 1969 (Rev.). 

Fellatio and cunnilingus are within the scope 

of Article 125. See United States v. Harris, 8 

M.J. 52 (C.M.A. 1979); United States v. 

Scoby, 5 M.J. 160 (C.M.A. 1978). In 2003, the 

Supreme Court recognized a constitutional 

liberty interest under the Due Process Clause 

to engage in consensual, private, adult sexual 

behavior. Lawrence v. Texas, 539 U.S. 558 

(2003). The Court assigned that liberty 

interest to those adults ‘‘with full and mutual 

consent from each other’’ and did not extend 

that interest to cases involving minors, public 

conduct, prostitution, persons who might be 

injured or coerced, and persons who are 

situated in relationships where consent 

might not easily be refused. Id. at 578. In 

essence, Lawrence endorsed the notion that 

the Fifth Amendment liberty interest 

embraces the autonomy of individual choices 

involving intimate and personal decisions 

that do not infringe on the bodily integrity of 

another. Id. However, the Court made clear 

that not all sodomy was protected under an 

individual’s substantive due process rights. 

Id. 

Following the Supreme Court’s decision, 

the Court of Appeals for the Armed Forces 

(CAAF) acknowledged the application of 

Lawrence in the military but with noted 

exceptions. United States v. Marcum, 60 M.J. 

198 (C.A.A.F. 2004). In Marcum, the Court 

adopted a tripartite framework for addressing 

Lawrence issues within the military context 

by distinguishing between conduct 

constitutionally protected and conduct that 

may be criminal under Article 125 of the 

UCMJ. Id. Whether a conviction under 

Article 125 is constitutional as applied 

would be analyzed by asking: ‘‘First, was the 

conduct that the accused was found guilty of 

committing of a nature to bring it within the 

liberty interest identified by the Supreme 

Court? Second, did the conduct encompass 

any behavior or factors identified by the 

Supreme Court as outside the analysis in 

Lawrence? Third, are there additional factors 

relevant solely in the military environment 

that affect the nature and reach of the 

Lawrence liberty interest?’’ Id. at 206–07 

(internal citations omitted). 

In United States v. Hartman, 69 M.J. 467, 

468 (C.A.A.F. 2011), CAAF explained that 

when considering charges under Article 125, 

the ‘‘distinction between what is permitted 

and what is prohibited constitutes a matter 

of ‘critical significance.’ ’’ In the context of 

guilty pleas, a provident plea to Article 125 

must include an ‘‘appropriate discussion and 

acknowledgment on the part of the accused 


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of the distinction between what is permitted 

and what is prohibited behavior.’’ Id. As 

pointed out in the holding, CAAF imposed 

this ‘‘critical distinction’’ colloquy during a 

plea ‘‘[w]hen a charge against a 

servicemember may implicate both criminal 

and constitutionally protected conduct.’’ Id. 

(emphasis added).’’ 

(h) Paragraph 51, Article 125, Sodomy, 

subparagraph d. is amended as follows: 

‘‘d. Lesser included offenses. 1994 

Amendment. One of the objectives of the 

Sexual Abuse Act of 1986, 18 U.S.C. 2241– 

2245, was to define sexual abuse in genderneutral terms. Since the scope of Article 125, 

UCMJ, accommodates those forms of sexual 

abuse other than the rape provided for in 

Article 120, UCMJ, the maximum 

punishments permitted under Article 125 

were amended to bring them more in line 

with Article 120 and the Act, thus providing 

sanctions that are generally equivalent 

regardless of the victim’s gender. 

Subparagraph e(1) was amended by 

increasing the maximum period of 

confinement from 20 years to life. 

Subparagraph e(2) was amended by creating 

two distinct categories of sodomy involving 

a child, one involving children who have 

attained the age of 12 but are not yet 16, and 

the other involving children under the age of 

12. The latter is now designated as 

subparagraph e(3). The punishment for the 

former category remains the same as it was 

for the original category of children under the 

age of 16. This amendment, however, 

increases the maximum punishment to life 

when the victim is under the age of 12 years. 

2007 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 case. 

2013 Amendment: Section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, P.L. 112–81, 31 December 2011, 

supersedes the previous paragraph 45, ‘‘Rape, 

sexual assault and other sexual misconduct’’, 

in its entirety and replaces paragraph 45 with 

‘‘Rape and sexual assault generally.’’ In 

addition, it adds paragraph 45b., ‘‘Rape and 

sexual assault of a child’’, and paragraph 

45c., ‘‘Other sexual misconduct.’’ These 

changes affect lesser included offenses 

(LIOs), but LIOs should still be determined 

based on the elements of each offense. See 

Article 79 and Appendix 12A.’’ 

(i) Paragraph 60, Article 134, General 

Article, subparagraph (6)(a) is amended as 

follows: 

‘‘2013 Amendment. In 2012 the Manual 

was amended to address the changes in 

practice resulting from the holding in United 

States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). 

In the 2013 Executive Order, the President 

required that the terminal element be 

expressly alleged in every Article 134 

specification. 

The President ended the historical practice 

of inferring the terminal element in Article 

134 specifications, see, e.g. United States v. 

Mayo, 12 M.J. 286 (C.M.A. 1983), and 

required the terminal element be expressly 

alleged to provide sufficient notice to the 

accused and for uniformity and consistency 

in practice. See Fosler, 70 M.J. at 227–28; 

Schmuck v. United States, 489 U.S. 705 

(1989). In general, when drafting 

specifications, the Government must allege 

every element, either expressly or by 

necessary implication. See R.C.M. 307(c)(3). 

However, in Article 134 specifications, the 

accused must be given notice as to which 

clause or clauses he must defend against; 

therefore, the terminal element may not be 

inferred. 

Although a single terminal element is 

required, there are three theories of liability 

that would satisfy the terminal element: a 

disorder or neglect to the prejudice of good 

order and discipline (under clause 1); 

conduct of a nature to bring discredit upon 

the armed forces (under clause 2); or a crime 

or offense not capital (under clause 3). The 

three clauses are ‘‘distinct and separate.’’ 

Fosler, 70 M.J. at 232. A single theory may 

be alleged, or clauses 1 and 2 may be 

combined. While it is not prohibited to 

combine clauses 1, 2, and 3 in one 

specification, such a combination is not 

practical. 

When charging both clauses 1 and 2, 

practitioners are encouraged to use the word 

‘‘and’’ to separate the theories in one 

specification, rather than using the word ‘‘or’’ 

to separate the theories. Practitioners may 

also allege two separate specifications. At 

findings, the Trial Counsel or Military Judge 

must make certain that the record is clear as 

to whether clause 1, clause 2, or both clauses 

were proven beyond a reasonable doubt. 

Using the word ‘‘and’’ to separate clause 1 

and 2 in the terminal element allows the trier 

of fact to except the unproven clause from 

the specification. This approach forces 

intellectual rigor in analyzing each clause as 

distinct and separate. Nothing in this 

analysis should be read to suggest that a 

specification connecting the two theories 

with the disjunctive ‘‘or’’ necessarily fails to 

give the accused reasonable notice of the 

charge against him. See United States v. 

Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) 

(per curiam) (citing Russell v. United States, 

369 U.S. 749, 765 (1962)).’’ 

(j) Paragraph 60, Article 134, General 

Article, subparagraph (6)(b), delete the 

paragraph beginning with the words ‘‘2012 

Amendment’’ and ending ‘‘above.’’, and 

insert in its place: 

‘‘2013 Amendment. New discussion was 

added in 2012 to address United States v. 

Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2013 

that analysis was removed after paragraph 60 

was amended by Executive Order. See 

analysis under subparagraph (6)(a) above.’’ 

(k) Paragraph 60, Article 134, Adultery, 

subparagraph (c)(2) is amended as follows: 

‘‘(2) When determining whether adulterous 

acts constitute the offense of adultery under 

Article 134, commanders should consider the 

listed factors. The offense of adultery is 

intended to prohibit extramarital sexual 

behavior that directly affects the discipline of 

the armed forces, respect for the chain of 

command, or maintenance of unit cohesion. 

The intent of this provision is to limit the 

crime of adultery to those situations where 

the negative impact to the unit is real rather 

than theorized. This provision is not 

intended, nor should it be inferred, to 

criminalize sexual practices between two 

adults with full and mutual consent from 

each other, but rather, to punish the 

collateral negative effects of extramarital 

sexual activity when there exists a genuine 

nexus between that activity and the 

efficiency and effectiveness of the armed 

forces. c.f. United States v. Marcum, 60 M.J. 

198 (C.A.A.F. 2004) (the court recognized 

that private sexual behavior between 

consenting adults may be constitutionally 

protected as applied in the military context); 

Appendix 23, para. 51(2). 

While each commander has discretion to 

dispose of offenses by members of the 

command, wholly private and consensual 

sexual conduct between adults is generally 

not punishable under this paragraph. The 

right to engage in such conduct, however, is 

tempered in a military context by the mission 

of the military, the need for cohesive teams, 

and the need for obedience to orders. Cases 

involving fraternization or other 

unprofessional relationships may be more 

appropriately charged under Article 92 or 

Article 134—Fraternization. Cases involving 

abuse of authority by officers may be more 

appropriately charged under Article 133. 

As with any alleged offense, R.C.M. 306(b) 

advises commanders to dispose of an 

allegation of adultery at the lowest 

appropriate level. As the R.C.M. 306(b) 

discussion states, many factors must be taken 

into consideration and balanced, including, 

to the extent practicable, the nature of the 

offense, any mitigating or extenuating 

circumstances, the character and military 

service of the military member, any 

recommendations made by subordinate 

commanders, the interests of justice, military 

exigencies, and the effect of the decision on 

the military member and the command. The 

goal should be a disposition that is 

warranted, appropriate, and fair. In the case 

of officers, also consult the explanation to 

paragraph 59 in deciding how to dispose of 

an allegation of adultery.’’ 

(l) Paragraph 97, Article 134, Pandering 

and Prostitution, subparagraph (e) is 

amended to insert the following language 

after the paragraph beginning with the word 

‘‘2007’’ and ending with the word 

‘‘Pandering’’: 

‘‘2013 Amendment: The act of compelling 

another person to engage in act of 

prostitution with another person was 

replaced under paragraph 97 with a new 

offense under paragraph 45 in 2007. In 2012, 

the act was then moved to paragraph 45c, 

‘‘Other sexual misconduct.’’ See Article 

120c(b), ‘‘Forcible Pandering.’’ ’’ 

Changes to Appendix 21, Analysis of 

Rules for Courts Martial 

(a) RCM 307(c)(3), after the paragraph 

beginning with the words ‘‘2004 

Amendment’’ delete the paragraph beginning 

with the words ‘‘2012 Amendment,’’ and 

insert in its place: 

‘‘2013 Amendment. In 2012, two new notes 

were added to address the requirement to 


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expressly state the terminal element in 

specifications under Article 134 and to 

address lesser included offenses. See United 

States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011); United States v. Jones, 68 M.J. at 465 

(C.A.A.F. 2010). In 2013, the Manual was 

amended to require the terminal element be 

expressed in Article 134 and to alter the 

definition of lesser included offenses in 

Article 79. See paragraphs 3 and 60c(6) in 

Part IV of this Manual. The 2012 notes were 

removed.’’ 

(b) RCM 307(c)(3)(A), after the paragraph 

beginning with the words ‘‘Sample 

specifications’’ delete the paragraph 

beginning with the words ‘‘2012 

Amendment.’’ 

(c) RCM 307(c)(3)(G), after the paragraph 

beginning with the words ‘‘Description of 

offense.’’ delete the paragraph beginning with 

the words ‘‘2012 Amendment,’’ and insert in 

its place: 

‘‘2013 Amendment. In 2012, a new note 

was added to address the requirement to 

expressly state the terminal element in 

specifications under Article 134. See United 

States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011).’’ 

(d) RCM 307(c)(3)(G)(i) is amended to 

insert the following language: 

‘‘2013 Amendment. In 2012, a new note 

was added to address the requirement to 

expressly state the terminal element in 

specifications under Article 134. See United 

States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); 

United States v. Fosler, 70 M.J. 225 (C.A.A.F. 

2011).’’ 

(e) RCM 307(c)(3)(G)(v) is inserted to add 

the following language: 

‘‘2013 Amendment. Subparagraph (v) was 

added in 2013 to address lesser included 

offenses and refer practitioners to Article 79 

and new Appendix 12A. See paragraph 3 in 

Part IV and Appendix 12A. See also 

paragraph 3 in this Appendix.’’ 

(f) RCM 307(c)(4), after the paragraph 

beginning with the words ‘‘2005 

Amendment’’ delete the paragraph beginning 

with the words ‘‘2012 Amendment,’’ and 

insert in its place: 

‘‘2013 Amendment. The discussion section 

was added to R.C.M. 307(c)(4) to clarify the 

ambiguity between the two distinct concepts 

of multiplicity and unreasonable 

multiplication of charges. For analysis 

related to multiplicity, see R.C.M. 

907(b)(3)(B) Analysis section. For analysis 

related to unreasonable multiplication of 

charges, see R.C.M. 906(b)(12) Analysis 

section. 

Nothing in the Rule or the discussion 

section should be construed to imply that it 

would be overreaching for a prosecutor to 

bring several charges against an accused for 

what essentially amounts to one transaction 

if there is a valid legal reason to do so. For 

example, prosecutors may charge two 

offenses for exigencies of proof, which is a 

long accepted practice in military law. See, 

e.g., United States v. Morton, 69 M.J. 12 

(C.A.A.F. 2009). The discussion section 

emphasizes that a prosecutor is not 

overreaching or abusing his discretion merely 

because he charges what is essentially one 

act under several different charges or 

specifications. 

The language in the discussion section of 

the 2012 edition of the Manual referring to 

the Campbell decision was removed because 

it is no longer necessary, as the Rules 

themselves have been edited to remove any 

reference to ‘‘multiplicious for sentencing.’’ 

The example was removed from the 

discussion section because it overly 

generalized the concept of unreasonable 

multiplication of charges.’’ 

(g) RCM 906(b)(12), delete the paragraph 

beginning with the words ‘‘2012 

Amendment,’’ and insert in its place: 

‘‘2013 Amendment. This rule and related 

discussion is the focal point for addressing 

unreasonable multiplication of charges. If a 

practitioner seeks to raise a claim for 

multiplicity, that concept is addressed in 

R.C.M. 907(b)(3)(B) and related discussion. 

This rule has been amended because CAAF 

has recognized that practitioners and the 

courts have routinely confused the concepts 

of multiplicity and unreasonable 

multiplication of charges. See, e.g., United 

States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 

2012) (‘‘the terms multiplicity, multiplicity 

for sentencing, and unreasonable 

multiplication of charges in military practice 

are sometimes used interchangeably as well 

as with uncertain definition’’); United States 

v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) 

(Cook, J. dissenting) (‘‘[t]hat multiplicity for 

sentencing is a mess in the military justice 

system is a proposition with which I believe 

few people familiar with our system would 

take issue’’). 

Multiplicity and unreasonable 

multiplication of charges are two distinct 

concepts. Unreasonable multiplication of 

charges as applied to findings and sentence 

is a limitation on the prosecution’s discretion 

to charge separate offenses. Unreasonable 

multiplication of charges does not have a 

foundation in the Constitution but is instead 

based on the concept of reasonableness and 

is a prohibition against prosecutorial 

overreaching. In contrast, multiplicity is 

based on the Double Jeopardy clause of the 

Fifth Amendment and prevents an accused 

from being twice punished for one offense if 

it is contrary to the intent of Congress. A 

charge may be found not to be multiplicious 

but at the same time it may be dismissed 

because of unreasonable multiplication. See 

United States v. Quiroz, 55 M.J. 334, 337 

(C.A.A.F. 2001). 

Use of the term ‘‘multiplicity (or 

multiplicious) for sentencing’’ is 

inappropriate. If a charge is multiplicious, 

meaning that it violates the Constitutional 

prohibition against Double Jeopardy, it 

necessarily results in dismissal of the 

multiplied offenses, therefore obviating any 

issue on sentencing with respect to that 

charge. Campbell, 71 M.J. at 23. A charge 

should not be found multiplicious for 

sentencing but not for findings. Thus, the 

more appropriate term for the military 

judge’s discretionary review of the charges at 

sentencing is ‘‘unreasonable multiplication of 

charges as applied to sentence.’’ Id. at 24. 

The Rule was changed to remove 

‘‘multiplicity for sentencing’’ from the 

Manual, eliminating confusion and misuse. 

Subparagraphs (i) and (ii) were added to 

the rule to clarify the distinction between 

unreasonable multiplication of charges as 

applied to findings and to sentence. 

Although these concepts have existed for 

years (see Michael J. Breslin & LeEllen 

Coacher, Multiplicity and Unreasonable 

Multiplication of Charges: A Guide to the 

Perplexed, 45 A.F.L. Rev. 99 (1998) for a 

history of the terms), they were not defined 

in previous editions of the Manual. The 

definitions were adopted from Quiroz, 

Campbell, and recommendations from 

Christopher S. Morgan, Multiplicity: 

Reconciling the Manual for Courts-Martial, 

63 A.F.L. Rev. 23 (2009). It is possible that 

two offenses are not unreasonably multiplied 

for findings but are so for sentencing; these 

additions explain how this can be so. See, 

e.g., Campbell, 71 M.J. at 25 (where CAAF 

found that the military judge did not abuse 

his discretion by finding that there was not 

an unreasonable multiplication of charges as 

applied to findings but that there was an 

unreasonable multiplication of charges as 

applied to sentence). 

The discussion sections were added to 

address concerns that CAAF voiced in dicta 

in Campbell. In previous editions of the 

Manual, military judges often used the 

discussion section in R.C.M. 1003(b)(8)(C) to 

determine when relief was warranted for 

unreasonable multiplication of charges as 

applied to sentence. The Campbell court 

stated in a footnote: ‘‘It is our view that after 

Quiroz, the language in the Discussion to 

R.C.M. 1003(b)(8)(C) regarding ‘a single 

impulse or intent,’ is dated and too 

restrictive. The better approach is to allow 

the military judge, in his or her discretion, 

to merge the offense for sentencing purposes 

by considering the Quiroz factors and any 

other relevant factor * * *’’ Campbell, 71 

M.J. at 24 n.9. The Discussion was changed 

to address the Quiroz factors and remove any 

reference to the ‘single impulse or intent’ 

test, as suggested by CAAF. The Committee 

also decided to move the Discussion section 

from R.C.M. 1003(b)(8)(C) to this Rule 

because R.C.M. 1003 deals exclusively with 

sentencing and a motion for appropriate 

relief due to unreasonable multiplication of 

charges can be raised as an issue for findings 

or for sentence under this Rule. Therefore, it 

is more appropriate to address the issue here. 

For more information on multiplicity and 

how it relates to unreasonable multiplication 

of charges, see Michael J. Breslin & LeEllen 

Coacher, Multiplicity and Unreasonable 

Multiplication of Charges: A Guide to the 

Perplexed, 45 A.F.L. Rev. 99 (1998); 

Christopher S. Morgan, Multiplicity: 

Reconciling the Manual for Courts-Martial, 

63 A.F.L. Rev. 23 (2009); Gary E. Felicetti, 

Surviving the Multiplicty/LIO Family Vortex, 

Army Law., Feb. 2011. 

The language in the discussion section of 

the 2012 edition of the Manual referring to 

the Campbell decision was removed because 

it is no longer necessary, as the Rules 

themselves have been edited to remove any 

reference to ‘‘multiplicious for sentencing’’ 

and additional discussion sections were 

added to eliminate any confusion with the 

terms.’’ 

(h) RCM 907(b)(3)(B), is amended to insert 

the following language: 


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Federal Register / Vol. 77, No. 205 / Tuesday, October 23, 2012 / Notices 64887 

‘‘2013 Amendment. This rule and related 

discussion is the focal point for addressing 

claims of multiplicity. If a practitioner seeks 

to raise a claim for unreasonable 

multiplication of charges, that concept is 

addressed in R.C.M. 906(b)(12) and related 

discussion. The heading of this rule was 

added to signify that this rule deals 

exclusively with multiplicity, and not 

unreasonable multiplication of charges. The 

discussion section of this rule was amended 

because the Committee believed that a more 

thorough definition of multiplicity was 

appropriate in light of CAAF’s suggestion in 

United States v. Campbell, 71 M.J. 19, 23 

(C.A.A.F. 2012) that the concepts of 

multiplicity and unreasonable multiplication 

of charges are often confounded. 

The discussion of multiplicity is derived 

from the Supreme Court’s holding in 

Blockberger v. United States, 284 U.S. 299 

(1932) and CMA’s holding in United States 

v. Teters, 37 M.J. 370 (C.M.A. 1993). The 

Court in Blockberger wrote: ‘‘[W]here the 

same act or transaction constitutes a violation 

of two distinct statutory provisions, the test 

to be applied to determine whether there are 

two offense or only one, is whether each 

provision requires proof of a fact that the 

other does not.’’ Blockberger, 284 U.S. at 304. 

Military courts departed from the 

Blockburger analysis; however, the CMA’s 

decision in Teters clearly re-aligned the 

military courts with the federal courts, and 

multiplicity is now determined in the 

military courts by the Blockberger/Teters 

analysis outlined in the discussion section. 

Any reference to the ‘‘single impulse’’ or 

‘‘fairly embraced’’ tests is outdated and 

should be avoided. 

Two offenses that arise from the same 

transaction may not be multiplicious, even if 

they do not require proof of an element not 

required to prove the other, if the intent of 

Congress was that an accused could be 

convicted and punished for both offenses 

arising out of the same act. The Blockberger/ 

Teters analysis applies only when Congress 

has not made a statement of intent, either 

expressly in the statute or through legislative 

history, that the offenses be treated as 

separate. If it was Congress’ intent to draft 

two statutes that subject an accused to 

multiple punishments for the same 

transaction, and that intent is clear, the 

Blockberger/Teters elements comparison is 

unnecessary. See, e.g., Missouri v. Hunter, 

459 U.S. 359, 368 (1983) (‘‘simply because 

two criminal statutes may be construed to 

proscribe the same conduct under the 

Blockburger test does not mean that the 

Double Jeopardy Clause precludes the 

imposition, in a single trial, of cumulative 

punishments pursuant to those statutes 

* * * [Where a] legislature specifically 

authorizes cumulative punishment under 

two statutes, regardless of whether those two 

statutes proscribe the ‘same’ conduct under 

Blockburger, a court’s task of statutory 

construction is at an end and the prosecutor 

may seek and the trial court or jury may 

impose cumulative punishment under such 

statutes in a single trial’’). 

The language in the discussion section of 

the 2012 edition of the Manual referring to 

the Campbell decision was removed because 

it is no longer necessary, as the Rules 

themselves have been edited to remove any 

reference to ‘‘multiplicious for sentencing’’ 

and additional discussion sections were 

added to eliminate any confusion with the 

terms.’’ 

(i) RCM 916(b), is amended to insert the 

following language immediately following 

the paragraph beginning with the words 

‘‘2007 Amendment’’: 

‘‘2013 Amendment: Changes to this 

paragraph are based on section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, Pub. L. 112–81, 31 December 

2011, which supersedes the previous 

paragraph 45, ‘‘Rape, sexual assault and other 

sexual misconduct,’’ in its entirety and 

replaces paragraph 45 with ‘‘Rape and sexual 

assault generally.’’ In addition, it adds 

paragraph 45b., ‘‘Rape and sexual assault of 

a child,’’ and paragraph 45c., ‘‘Other sexual 

misconduct.’’ 

(j) RCM 916(j), is amended to insert the 

following language immediately following 

the paragraph beginning with the words 

‘‘2007 Amendment’’: 

‘‘2013 Amendment: Changes to this 

paragraph are based on section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, Pub. L. 112–81, 31 December 

2011, which supersedes the previous 

paragraph 45, ‘‘Rape, sexual assault and other 

sexual misconduct,’’ in its entirety and 

replaces paragraph 45 with ‘‘Rape and sexual 

assault generally.’’ In addition, it adds 

paragraph 45b., ‘‘Rape and sexual assault of 

a child,’’ and paragraph 45c., ‘‘Other sexual 

misconduct.’’ 

Paragraph (j)(3) was deleted based on the 

changes to Article 120 and in light of the fact 

that the Court of Appeals for the Armed 

Forces ruled that the statutory burden shift 

to the accused in the 2007 version of Article 

120 was unconstitutional and the subsequent 

burden shift to the government to disprove 

consent beyond a reasonable doubt once the 

accused had raised the affirmative defense of 

consent by a preponderance of the evidence 

resulted in a legal impossibility. United 

States v. Prather, 69 M.J. 338 (C.A.A.F. 2011); 

United States v. Medina, 69 M.J. 462 

(C.A.A.F. 2011).’’ 

(k) RCM 920(e)(5)(D), is amended to insert 

the following language immediately 

following the paragraph beginning with the 

words ‘‘2007 Amendment’’: 

‘‘2013 Amendment: Changes to this 

paragraph are based on section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, Pub. L. 112–81, 31 December 

2011, which supersedes the previous 

paragraph 45, ‘‘Rape, sexual assault and other 

sexual misconduct,’’ in its entirety and 

replaces paragraph 45 with ‘‘Rape and sexual 

assault generally.’’ In addition, it adds 

paragraph 45b., ‘‘Rape and sexual assault of 

a child,’’ and paragraph 45c., ‘‘ ‘Other sexual 

misconduct.’ ’’ 

(l) RCM 1003(c)(1)(C), delete the paragraph 

beginning with words the ‘‘2012 

Amendment,’’ and insert in its place: 

‘‘2013 Amendment. This Rule was 

amended because the language in previous 

editions of the Manual seemed to suggest that 

an accused could not be punished for 

offenses that were not separate. This is only 

true if there is no express statement from 

Congress indicating that an accused can be 

punished for two or more offenses that are 

not separate. See R.C.M. 907(b)(3) and related 

analysis. The committee added subsections 

(i) and (ii) to distinguish between claims of 

multiplicity and unreasonable multiplication 

of charges. As the two concepts are distinct, 

it is important to address them in separate 

subsections. See R.C.M. 906(b)(12) for claims 

of unreasonable multiplication of charges 

and R.C.M. 907(b)(3)(B) for claims of 

multiplicity. 

Additionally, the Committee decided to 

move the discussion of the Quiroz factors 

from this Rule to R.C.M. 906(b)(12) because 

the factors apply to unreasonable 

multiplication of charges as applied to 

findings as well as sentence. Because this 

Rule refers only to sentencing, it is more 

appropriate to address the military judge’s 

determination of unreasonable multiplication 

in R.C.M. 906(b)(12), because that Rule 

covers both findings and sentence. See 

R.C.M. 906(b)(12) and related analysis. 

The language in the discussion section of 

the 2012 edition of the Manual referring to 

the Campbell decision was removed because 

it is no longer necessary, as the Rules 

themselves have been edited to remove any 

reference to ‘‘multiplicious for sentencing’’ 

and the discussion section of R.C.M. 

906(b)(12) addresses the Quiroz factors.’’ 

(m) RCM 1004(c)(7)(B), is amended to 

insert the following language immediately 

following the paragraph beginning with the 

words ‘‘2007 Amendment’’: 

‘‘2013 Amendment: Changes to this 

paragraph are based on section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, Pub. L. 112–81, 31 December 

2011, which supersedes the previous 

paragraph 45, ‘‘Rape, sexual assault and other 

sexual misconduct’’, in its entirety and 

replaces paragraph 45 with ‘‘Rape and sexual 

assault generally.’’ In addition, it adds 

paragraph 45b., ‘‘Rape and sexual assault of 

a child’’, and paragraph 45c., ‘Other sexual 

misconduct.’ ’’ 

(n) RCM 1004(c)(8), is amended to insert 

the following language immediately 

following the paragraph beginning with the 

words ‘‘2007 Amendment’’: 

‘‘2013 Amendment: Changes to this 

paragraph are based on section 541 of the 

National Defense Authorization Act for Fiscal 

Year 2012, Pub. L. 112–81, 31 December 

2011, which supersedes the previous 

paragraph 45, ‘‘Rape, sexual assault and other 

sexual misconduct,’’ in its entirety and 

replaces paragraph 45 with ‘‘Rape and sexual 

assault generally.’’ In addition, it adds 

paragraph 45b., ‘‘Rape and sexual assault of 

a child,’’ and paragraph 45c., ‘Other sexual 

misconduct.’ ’’ 

Dated: October 16, 2012. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2012–25852 Filed 10–22–12; 8:45 am] 

BILLING CODE 5001–06–P 


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