172
‘‘(II) to expose a secret or pub-
licize an asserted fact, whether true or 
false, tending to subject some person 
to hatred, contempt or ridicule; or 
‘‘(III) through the use or abuse 
of military position, rank, or author-
ity, to affect or threaten to affect, ei-
ther positively or negatively, the mili-
tary career of some person. 
‘‘(8) BODILY HARM.—The term ‘bodily harm’ 
means any offensive touching of another, however 
slight. 
‘‘(9) CHILD.—The term ‘child’ means any per-
son who has not attained the age of sixteen years. 
‘‘(10) LEWD
ACT.—The term ‘lewd act’ 
means—
‘‘(A) the intentional touching, not through 
the clothing, of the genitalia of another person, 
with an intent to abuse, humiliate, or degrade 
any person, or to arouse or gratify the sexual 
desire of any person; or 
‘‘(B) intentionally causing another person 
to touch, not through the clothing, the genitalia 
of any person with an intent to abuse, humiliate
173
or degrade any person, or to arouse or gratify 
the sexual desire of any person. 
‘‘(11) INDECENT LIBERTY.—The term ‘indecent 
liberty’ means indecent conduct, but physical contact 
is not required. It includes one who with the req-
uisite intent exposes one’s genitalia, anus, buttocks, 
or female areola or nipple to a child. An indecent 
liberty may consist of communication of indecent 
language as long as the communication is made in 
the physical presence of the child. If words designed 
to excite sexual desire are spoken to a child, or a 
child is exposed to or involved in sexual conduct, it 
is an indecent liberty; the child’s consent is not rel-
evant. 
‘‘(12) INDECENT CONDUCT.—The term ‘inde-
cent conduct’ means that form of immorality relat-
ing to sexual impurity which is grossly vulgar, ob-
scene, and repugnant to common propriety, and 
tends to excite sexual desire or deprave morals with 
respect to sexual relations. Indecent conduct in-
cludes but is not limited to observing, or making a 
videotape, photograph, motion picture, print, nega-
tive, slide, or other mechanically, electronically, or 
chemically reproduced visual material, without an-
174
other person’s consent, and contrary to that other 
person’s reasonable expectation of privacy, of—
‘‘(A) that other person’s genitalia, anus, or 
buttocks, or (if that other person is female) 
that person’s areola or nipple; or 
‘‘(B) that other person while that other 
person is engaged in a sexual act, sodomy 
(under section 925 (article 125)), or sexual con-
tact; and 
‘‘(13) ACT OF PROSTITUTION.—The term ‘act 
of prostitution’ means a sexual act, sexual contact, 
or lewd act for the purpose of receiving money or 
other compensation. 
‘‘(14) CONSENT.—The term ‘consent’ means 
words or overt acts indicating a freely given agree-
ment to the sexual conduct at issue by a competent 
person. An expression of lack of consent through 
words or conduct means there is no consent. Lack 
of verbal or physical resistance or submission result-
ing from the accused’s use of force, threat of force, 
or placing another person in fear does not constitute 
consent. A current or previous dating relationship by 
itself or the manner of dress of the person involved 
with the accused in the sexual conduct at issue shall
175
not constitute consent. A person cannot consent to 
sexual activity if—
‘‘(A) under sixteen years of age; or 
‘‘(B) substantially incapable of—
‘‘(i) appraising the nature of the sex-
ual conduct at issue due to—
‘‘(I) mental impairment or un-
consciousness resulting from con-
sumption of alcohol, drugs, a similar 
substance, or otherwise; or 
‘‘(II) mental disease or defect 
which renders the person unable to 
understand the nature of the sexual 
conduct at issue; or 
‘‘(ii) physically declining participation 
in the sexual conduct at issue; or 
‘‘(iii) physically communicating unwill-
ingness to engage in the sexual conduct at 
issue. 
‘‘(15) MISTAKE OF FACT AS TO CONSENT.—The 
term ‘mistake of fact as to consent’ means the ac-
cused held, as a result of ignorance or mistake, an 
incorrect belief that the other person engaging in the 
sexual conduct consented. The ignorance or mistake 
must have existed in the mind of the accused and
176
must have been reasonable under all the cir-
cumstances. To be reasonable the ignorance or mis-
take must have been based on information, or lack 
of it, which would indicate to a reasonable person 
that the other person consented. Additionally, the ig-
norance or mistake cannot be based on the negligent 
failure to discover the true facts. Negligence is the 
absence of due care. Due care is what a reasonably 
careful person would do under the same or similar 
circumstances. The accused’s state of intoxication, if 
any, at the time of the offense is not relevant to mis-
take of fact. A mistaken belief that the other person 
consented must be that which a reasonably careful, 
ordinary, prudent, sober adult would have had under 
the circumstances at the time of the offense. 
‘‘(16) AFFIRMATIVE DEFENSE.—The term ‘af-
firmative defense’ means any special defense which, 
although not denying that the accused committed 
the objective acts constituting the offense charged, 
denies, wholly, or partially, criminal responsibility 
for those acts. The accused has the burden of prov-
ing the affirmative defense by a preponderance of 
evidence. After the defense meets this burden, the 
prosecution shall have the burden of proving beyond