[Federal Register Volume 60, Number 192 (Wednesday, October 4, 1995)]
[Notices]
[Pages 51988-51990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24663]



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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice.

ACTION: Notice of proposed amendment.

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SUMMARY: The Joint Service Committee on Military Justice has completed 
its review of Federal Rules of Evidence 413 and 414, as implemented by 
the Violent Crime Control and Law Enforcement Act of 1994. Per Military 
Rule of Evidence 1102, these rules will apply to the military effective 
6 January 1996, unless contrary action is taken by the President. The 
Department of Defense is considering the addition of Military Rules of 
Evidence 413 and 414, in place of the automatically incorporated 
Federal Rules, in order to adapt and tailor the rules to military 
practice. The proposed rules are contained in this notice.
    The proposed changes have not been coordinated within the 
Department of Defense under DoD Directive 5500.1, ``Preparation and 
Processing of Legislation, Executive Orders, Proclamations, and Reports 
and Comments Thereon,'' May 21, 1964, and do not constitute the 
official position of the Department of Defense, the Military 
Departments, or any other government agency.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Review of the Manual for Courts-Martial'', January 23, 1985. 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 a party against the 
United States, it agencies, its officers, or any person.
    The proposed Rules follow in their entirety:

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

    (a) In a court-martial in which the accused is charged with an 
offense of sexual assault, evidence of the accused's commission of 
another offense or offenses of sexual assault is admissible, and may be 
considered for its bearing on any matter to which it is relevant.
    (b) In a court-martial in which the Government intends to offer 
evidence under this rule, the Government shall disclose the evidence to 
the accused, including statements of witnesses or a summary of the 
substance of any testimony that is expected to be offered, at least 
five days before the scheduled date of trial or at such later time as 
the military judge may allow for good cause.
    (c) This rule shall not be construed to limit the admission or 
consideration of evidence under any other rule.
    (d) For purposes of this rule, offense of sexual assault means an 
offense punishable under the Uniform Code of Military Justice, or a 
crime under Federal law or the law of a State that involved--
    (1) Any sexual act or sexual contact, without consent, proscribed 
by the Uniform Code of Military Justice, Federal law, or the law of a 
State;
    (2) Contact, without consent, between any part of the accused's 
body or an object and the genitals or anus of another person;
    (3) Contact, without consent, between the genitals or anus of the 
accused and any part of another person's body;
    (4) Deriving sexual pleasure or gratification from the infliction 
of death, bodily injury, or physical pain on another person; or
    (5) An attempt or conspiracy to engage in conduct described in 
paragraphs (1)-(4).
    (e) For purposes of this rule, the term sexual act means:
    (1) Contact between the penis and the vulva or the penis and the 
anus, and for purposes of this rule contact involving the penis occurs 
upon penetration, however slight;
    (2) Contact between the mouth and the penis, the mouth and the 
vulva, or the mouth and the anus:
    (3) The penetration, however slight, of the anal or genital opening 
of another by hand or finger or by any object, with an intent to abuse, 
humiliate, harass, degrade, or arouse or gratify the sexual desire of 
any person; or
    (4) The intentional touching, not through the clothing, of the 
genitalia of another person who has not attained the age of 16 years 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (f) For purposes of this rule, the term sexual contact means the 
intentional touching, either directly or through the clothing, of the 
genitalia, anus, groin, breast, inner thigh, or buttocks of any person 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (g) For purposes of this rule, the term ``State'' includes a State 
of the United States, the District of Columbia, Puerto Rico, Guam, the 
Virgin Islands, and any other territory or possession of the United 
States.

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

    (a) In a court-martial in which the accused is charged with an 
offense of child molestation, evidence of the accused's commission of 
another offense or offenses of child molestation is admissible, and may 
be considered for its bearing on any matter to which it is relevant.
    (b) In a court-martial in which the Government intends to offer 
evidence under this rule, the Government shall disclose the evidence to 
the accused, including statements of witnesses or a summary of the 
substance of any testimony that is expected to be offered, at least 
five days before the scheduled date of trial or at such later time as 
the military judge may allow for good cause.
    (c) This rule shall not be construed to limit the admission or 
consideration of evidence under any other rule.
    (d) For purposes of this rule, child means a person below the age 
of sixteen, and offense of child molestation means an offense 
punishable under the Uniform Code of Military Justice, or a crime under 
Federal law or the law of a State that involved--
    (1) Any sexual act or sexual contact with a child, proscribed by 
the Uniform Code of Military Justice, Federal law, or the law of a 
State;
    (2) Any sexually explicit conduct with children, proscribed by the 
Uniform Code of Military Justice, Federal law, or the law of a State;
    (3) Contact between any part of the accused's body or an object and 
the genitals or anus of a child;
    (4) Contact between the genitals or anus of the accused and any 
part of the body of a child;
    (5) Deriving sexual pleasure or gratification from the infliction 
of death, bodily injury, or physical pain on a child; or 

[[Page 51989]]

    (6) An attempt or conspiracy to engage in conduct described in 
paragraphs (1)-(5).
    (e) For purposes of this rule, the term sexual act means:
    (1) Contact between the penis and the vulva or the penis and the 
anus, and for purposes of this rule contact involving the penis occurs 
upon penetration, however slight;
    (2) Contact between the mouth and the penis, the mouth and the 
vulva, or the mouth and the anus;
    (3) The penetration, however slight, of the anal or genital opening 
of another by hand or finger or by any object, with an intent to abuse, 
humiliate, harass, degrade, or arouse or gratify the sexual desire of 
any person; or
    (4) The intentional touching, not through the clothing, of the 
genitalia of another person who has not attained the age of 16 years 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (f) For purposes of this rule, the term sexual contact means the 
intentional touching, either directly or through the clothing, of the 
genitalia, anus, groin, breast, inner thigh, or buttocks of any person 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (g) For purpose of this rule, the term sexually explicit conduct'' 
means actual or simulated:
    (1) Sexual intercourse, including genital-genital, oral-genital, or 
oral-anal, whether between persons of the same or opposite sex;
    (2) Bestiality;
    (3) Masturbation;
    (4) Sadistic or masochistic abuse; or
    (5) Lascivious exhibition of the genitals or pubic area of any 
person.
    (h) For purposes of this rule, the term ``State'' includes a State 
of the United States, the District of Columbia, Puerto Rico, Guam, the 
Virgin Islands, and any other territory or possession of the United 
States.
    The proposed analysis for the Rules (Appendix 22, M.R.E.) is as 
follows:

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

    1996 Amendment. This amendment is intended to provide for more 
liberal admissibility of character evidence in criminal cases of sexual 
assault where the accused has committed a prior act of sexual assault.
    Rule 413 is nearly identical to its Federal Rule counterpart. A 
number of changes were made, however, to tailor the Rule to military 
practice. First, all references to Federal Rule 415 were deleted, as it 
applies only to civil proceedings. Second, military justice terminology 
was substituted where appropriate (e.g. accused for defendant, court-
martial for case). Third, the five-day notice requirement in Rule 
413(b) replaced a fifteen-day notice requirement in the Federal Rule. A 
five-day requirement is better suited to military discovery practice. 
Fourth, Rule 413(d) has been modified to include violations of the 
Uniform Code of Military Justice. Also, the phrase ``without consent'' 
was added to Rule 413(d)(1) to specifically exclude the introduction of 
evidence concerning adultery or consensual sodomy. Last, all 
incorporation by way of reference was removed by adding subsections 
(e), (f), and (g). The definitions in those subsections were taken 
directly from title 18, United States Code Secs. 2246(2), 2246(3), and 
513(c)(5), respectively.
    Although the Rule states that the evidence ``is admissible,'' the 
drafters' intend that the courts apply Rule 403 balancing to such 
evidence. Apparently, this also was the intent of Congress. The 
legislative history reveals that ``the general standards of the rules 
of evidence will continue to apply, including the restrictions on 
hearsay evidence and the court's authority under Evidence Rule 403 to 
exclude evidence whose probative value is substantially outweighed by 
its prejudicial effect.'' 156 F.R.D. 51 (1995) (Reprint of the Floor 
Statement of the Principal House Sponsor, Representative Susan 
Molinari, Concerning the Prior Crimes Evidence Rules for Sexual Assault 
and Child Molestation Cases).
    When ``weighing the probative value of such evidence, the court 
may, as part of its Rule 403 determination, consider proximity in time 
to the charged or predicate misconduct; similarity to the charged or 
predicate misconduct; frequency of the other acts; surrounding 
circumstances; relevant intervening events; and other relevant 
similarities or differences.'' 156 F.R.D. 51, 55 (1995) (Report of the 
Judicial Conference of the United States on the Admission of Character 
Evidence in Certain Sexual Midconduct Cases).

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

    1996 Amendment. This amendment is intended to provide for more 
liberal admissibility of character evidence in criminal cases of child 
molestation where the accused has committed a prior act of sexual 
assault or child molestation.
    Rule 414 is nearly identical to its Federal Rule counterpart. A 
number of changes were made, however, to tailor the Rule to military 
practice. First, all references to Federal Rule 415 were deleted, as it 
applies only to civil proceedings. Second, military justice terminology 
was substituted where appropriate (e.g. accused for defendant, court-
martial for case). Third, the five-day notice requirement in Rule 
414(b) replaced a fifteen-day notice requirement in the Federal rule. A 
five-day requirement is better suited to military discovery practice. 
Fourth, Rule 414(d) has been modified to include violations of the 
Uniform Code of Military Justice. Last, all incorporation by way of 
reference was removed by adding subsections (e) (f), (g), and (h). The 
definitions in those subsections were taken directly from title 18, 
United States Code Secs. 2246(2), 2246(3), 2256(2), and 513(c)(5), 
respectively.
    Although the Rule states that the evidence ``is admissible,'' the 
drafters' intend that the courts apply Rule 403 balancing to such 
evidence. Apparently, this was also the intent of Congress. The 
legislative history reveals that ``the general standards of the rules 
of evidence will continue to apply, including the restrictions on 
hearsay evidence and the court's authority under Evidence Rule 403 to 
exclude evidence whose probative value is substantially outweighed by 
its prejudicial effect.'' 156 F.R.D. 51 (1995) (Reprint of the Floor 
Statement of the Principal House Sponsor, Representative Susan 
Molinari, Concerning the Prior Crime Evidence Rules for Sexual Assault 
and Child Molestation Cases).
    When ``weighing the probative value of such evidence, the court 
may, as part of its Rule 403 determination, consider proximity in time 
to the charged or predicate misconduct; similarity to the charged or 
predicated misconduct; frequency of the other acts; surrounding 
circumstances; relevant intervening events; and other relevant 
similarities or differences.'' 156 F.R.D. 51, 55 (1955) (Report of the 
Judicial Conference of the United States on the Admission of Character 
Evidence in Certain Sexual Misconduct Cases.).

effective date: These amendments would apply, upon approval by the 
President, only in cases in which arraignment has been completed on or 
after the effective date.

addresses: Copies of the proposed changes may be examined at the Office 
of the Judge Advocate General, Criminal Law Division, Building 111, 
Washington Navy Yard, Washington, DC 20374. A copy of the proposed 
changes may be obtained by mail upon request from the foregoing 
address, ATTN: LT J. Russell McFarlane.


[[Page 51990]]

dates: Comments on the proposed changes must be received no later than 
December 18, 1995 for consideration by the Joint Service Committee on 
Military Justice.

for further information contact: LT J. Russell McFarlane, JAGC, USNR, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, Criminal Law Division, Building 
111, Washington Navy Yard, Washington, DC 20374-1111; (202) 433-5895.

    Dated: September 29, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Office, Department of Defense.
[FR Doc. 95-24663 Filed 10-3-95; 8:45 am]
BILLING CODE 5000-04-M