[Federal Register Volume 69, Number 178 (Wednesday, September 15, 2004)]
[Notices]
[Pages 55600-55604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20723]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of proposed amendments to the Manual for Courts-Martial, 
United States (2002 ed.) and notice of public meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States (2002 ed.) (MCM). The 
proposed changes constitute the 2004 annual review required by the MCM 
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 3,2003. The proposed 
changes concern the rules of procedure and evidence and the punitive 
articles

[[Page 55601]]

applicable in trials by courts-martial. These proposed changes have not 
been coordinated within the Department of Defense under DoD Directive 
5500.1, ``Preparation and Processing of Legislation, Executive Orders, 
Proclamations, and Reports and Comments Thereon,'' May 21, 1964, and do 
not constitute the official position of the Department of Defense, the 
Military Departments, or any other Government agency.
    This notice also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 3, 2003. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any person.
    In accordance with paragraph III.B.4 of the Internal Organization 
and Operating Procedures of the JSC, the committee also invites members 
of the public to suggest changes to the manual for Courts-Martial in 
accordance with the described format.

DATES: Comments on the proposed changes must be received no later than 
November 15, 2004 to be assured consideration by the JSC. A public 
meeting will be held on October 15, 2004 at 11 a.m. in Room 808, 1501 
Wilson Boulevard, Rosslyn, VA 22209-2403.

ADDRESSES: Comments on the proposed changes should be sent to 
Lieutenant Commander James Carsten, Office of the Judge Advocate 
General, 716 Sicard St. SE, Suite 1000, Washington,DC 20374-5047.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James Carsten, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, 716 Sicard St. SE., Suite 1000, 
Washington, DC 20374-5047, (202) 685-7298, (202) 685-7687 fax.

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:
    Amend RCM 703(b)(1) by inserting the following three sentences 
after the last sentence in RCM 703(b)(1):
    With the consent of both the accused and Government, the military 
judge may authorize any witness to testify via remote means. Over a 
party's objection, the military judge may authorize any witness to 
testify on interlocutory questions via remote means or similar 
technology if the practical difficulties of producing the witness 
outweigh the significance of the witness' personal appearance. Factors 
to be considered include, but are not limited to the costs of producing 
the witness, the timing of the request for production of the witness, 
the potential delay in the interlocutory proceeding that may be caused 
by the production of the witness, the willingness of the witness to 
testify in person, and the likelihood of significant interference with 
military operational deployment, mission accomplishment, or essential 
training, and for child witnesses the traumatic effect of providing in-
court testimony.
    Add a new paragraph to the end of the Discussion which follows 
R.C.M. (b)(1) that reads:
    The procedures for receiving testimony via remote means and the 
definition thereof are contained in R.C.M. 914B.
    Amend the Analysis accompanying R.C.M. 703(b) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (b)(1) was amended to allow, under 
certain circumstances, the utilization of various types of remote 
testimony in lieu of the personal appearance of the witness.''
    Amend the discussion to R.C.M. 802 by amending the last sentence of 
the discussion to read:
    A conference may be conducted by remote means or similar technology 
consistent with the definition in R.C.M. 914B.
    Amend R.C.M. 804(c)(2) to read:
    (2) Procedure. The accused's absence will be conditional upon his 
being able to view the witness' testimony from a remote location. 
Normally, transmission of the testimony will include a system which 
will transmit the accused's image and voice into the courtroom from a 
remote location as well as transmission of the child's testimony from 
the courtroom to the accused's location. A one-way transmission may be 
used if deemed necessary by the military judge. The accused will also 
be provided private, contemporaneous communication with his counsel. 
The procedures described herein shall be employed unless the accused 
has made a knowing and affirmative waiver of these procedures.
    Amend the Analysis accompanying R.C.M. 804(c) by inserting the 
following paragraph:
    ``200--Amendment: The specific terminology of the manner in which 
remote live testimony may be transmitted was deleted to allow for 
technological advances in the methods used to transmit audio and visual 
information.''
    Amend RCM 914A by deleting the third sentence of paragraph (a), 
which read ``However, such testimony should normally be taken via a 
two-way closed circuit television system'' leaving the remaining 
paragraph which reads:
    (a) General procedures. A child shall be allowed to testify out of 
the presence of the accused after the military judge has determined 
that the requirements of Mil. R. Evid. 611 (d)(3) have been satisfied. 
The procedure used to take such testimony will be determined by the 
military judge based upon the exigencies of the situation. At a 
minimum, the following procedures shall be observed:
    Amend RCM 914A by re-lettering current paragraph ``(b)'' to 
paragraph ``(c)'' and inserting new paragraph (b) which will read:
    (b) Definition. As used in this rule, ``remote live testimony'' 
includes, but is not limited to, testimony by video-teleconference, 
closed circuit television, or similar technology.
    Add a discussion section that reads:
    For purposes of this rule, unlike R.C.M. 914B, remote means or 
similar technology does not include receiving testimony by telephone 
where the parties cannot see and hear each other.
    Amend the Analysis accompanying R.C.M. 914A by inserting the 
following paragraph:
    ``200--Amendment: The rule was amend to allow for technological 
advances in the methods used to transmit audio and visual 
information.''
    Add new Rule R.C.M. 914B, which will read:

Rule 914B. Use of Remote Testimony

    (a) General procedures. The military judge shall determine the 
procedure used to take testimony via remote means. At a minimum, all 
parties shall be able to hear each other, those in attendance at the 
remote site shall be identified, and the accused shall be permitted 
private, contemporaneous communication with his counsel.
    (b) Definition. As used in this rule, testimony via ``remote 
means'' includes, but is not limited to, testimony by video-
teleconference, closed circuit television, telephone, or similar 
technology.

Discussion

    This rule applies for all witness testimony other than child 
witness testimony specifically covered by M.R.E. 611(d) and R.C.M. 
914A. When utilizing testimony via remote means, military justice 
practitioners are encouraged to consult the procedure

[[Page 55602]]

used in In re San Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D. 
424 (D.P.R. 1989) and to read United States v. Shabazz, 52 M.J. 585 
(N.M.Ct. Crim. App. 1999); and United States v. Gigante, 166 F.3d 75 
(2d Cir. 1999), cert denied, 528 U.S. 1114 (2000).
    Add a new analysis section for R.C.M. 914B by inserting the 
following title and paragraph:

Rule 914B. Use of Remote Testimony

    200--Amendment: This rule describes the basic procedures that will 
be used when testimony of any witnesses, other than child witnesses 
pursuant to R.C.M. 914A, is received via remote means.''
    Amend R.C.M. 1001(e)(2)(D) by deleting the ``or'' before ``former 
testimony'' and inserting ``, or testimony by remote means'' after 
``former testimony'' so the paragraph reads as follows:
    (D) Other forms of evidence, such as oral depositions, written 
interrogatories, former testimony, or testimony by remote means would 
not be sufficient to meet the needs of the court-martial in the 
determination of an appropriate sentence; and
    Add new Discussion paragraph immediately following R.C.M. 1001 
(e)(2)(E) which will read:
    The procedures for receiving testimony via remote means and the 
definition thereof are contained in R.C.M. 914B.
    Amend the Analysis accompanying R.C.M. 1001(e) by inserting the 
following paragraph:
    ``200--Amendment: Subsection (e)(2)(D) was amended to allow the 
availability of various types of remote testimony to be a factor to 
consider in whether a presentencing witness must be physically 
produced.''
    Amend Part IV, Punitive Articles, paragraph 4(c)(6) by inserting 
the following new subparagraph (f) and redesignating the existing 
subparagraph (f) as (g):
    ``(f) Article 119a-attempting to kill an unborn child''
    Amend Appendix 23, Analysis of Punitive Articles
    ``200--Amendment: In 4(c)(6), subparagraph (f) was redesignated as 
subparagraph (g) and a new subparagraph (f) was added to reflect the 
offense of attempting to kill an unborn child as established by the 
Unborn Victims of Violence Act of 2004, Pub. L. No. 108-212, Sec.  3, 
---- Stat., ------ (2004) (art.119a).
    Amend Part IV, Punitive Articles, by inserting the new paragraph 
44a to read:

44a. Article 119a--Death or Injury of an Unborn Child

a. Text
    ``(a)(1) Any person subject to this chapter who engages in conduct 
that violates any of the provisions of law listed in subsection (b) and 
thereby causes the death of, or bodily injury (as defined in section 
1365 of title 18) to, a child, who is in utero at the time the conduct 
takes place, is guilty of a separate offense under this section and 
shall, upon conviction, be punished by such punishment, other than 
death, as a court-martial may direct, which shall be consistent with 
the punishments prescribed by the President for that conduct had that 
injury or death occurred to the unborn child's mother.
    (2) An offense under this section does not require proof that--
    (i) The person engaging in the conduct had knowledge or should have 
had knowledge that the victim of the underlying offense was pregnant; 
or
    (ii) The accused intended to cause the death of, or bodily injury 
to, the unborn child.
    (3) If the person engaging in the conduct thereby intentionally 
kills or attempts to kill the unborn child, that person shall, instead 
of being punished under paragraph (1), be punished as provided under 
sections 880, 918, and 919(a) of this title (articles 80, 118, and 
119(a)) for intentionally killing or attempting to kill a human being.
    (4) Notwithstanding any other provision of law, the death penalty 
shall not be imposed for an offense under this section.
    (b) The provisions referred to in subsection (a) are sections 918, 
919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title 
(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).
    (c) Nothing in this section shall be construed to permit the 
prosecution--
    (1) Of any person for conduct relating to an abortion for which the 
consent of the pregnant woman, or a person authorized by law to act on 
her behalf, has been obtained or for which such consent is implied by 
law;
    (2) Of any person for any medical treatment of the pregnant woman 
or her unborn child; or
    (3) Of any woman with respect to her unborn child.
    (d) As used in this section, the term `unborn child' means a child 
in utero, and the term `child in utero' or `child, who is in utero' 
means a member of the species homo sapiens, at any stage of 
development, who is carried in the womb.''
b. Elements
(1) Injuring an Unborn Child
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) (belonging to))] a 
woman;
    (b) That the woman was then pregnant; and
    (c) Thereby cause bodily injury to the unborn child of that woman.
(2) Killing an Unborn Child
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of ] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property known to (be occupied by) (belong to))] a woman; 
and
    (b) That the woman was then pregnant; and
    (c) Thereby caused the death of the unborn child of that woman.
(3) Attempting To Kill an Unborn Child
    (a) That the accused was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) belonging to))] a 
woman; and
    (b) That the woman was then pregnant; and
    (c) Thereby attempted to kill the unborn child of that woman.
(4) Intentionally Killing an Unborn Child
    (a) That the accursed was engaged in the [(murder (article 118)), 
(voluntary manslaughter (article 119(a))), (involuntary manslaughter 
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)), 
(maiming (article 124)), (assault (article 128)), of] or [burning or 
setting afire, as arson (article 126), of (a dwelling inhabited by) (a 
structure or property (known to be occupied by) (belonging to))] a 
woman; and
    (b) That the woman was then pregnant; and
    (c) Thereby intentionally killed the unborn child of that woman.

[[Page 55603]]

c. Explanation
    (1) Nature of offense. This article makes it a separate, punishable 
crime to cause the death of or bodily injury to an unborn child while 
engaged in arson (article 126, UCMJ) murder (article 118, UCMJ); 
voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter 
(article 119(b)(2), UCMJ); rape (article 120(a), UCMJ); robbery 
(article 122, UCMJ); maiming (article 124, UCMJ); or assault (article 
128, UCMJ) against a pregnant woman. For all underlying offenses, 
except arson, this article requires that the victim of the underlying 
offense be the pregnant mother. For purposes of arson, the pregnant 
mother must have some nexus to the arson such that she sustained some 
``bodily injury'' due to the arson. This article does not permit the 
prosecution of any--
    (i) Person for conduct relating to an abortion for which the 
consent of the pregnant woman, or a person authorized by law to act on 
her behalf, has been obtained or for which such consent is implied by 
law;
    (ii) Person for any medical treatment of the pregnant woman or her 
unborn child; or
    (iii) Woman with respect to her unborn child.
    The offenses of ``injuring an unborn child'' and ``killing an 
unborn child'' do not require proof that--
    (i) The person engaging in the conduct (the accused) had knowledge 
or should have had knowledge that the victim of the underlying offense 
was pregnant; or
    (ii) The accused intended to cause the death of, or bodily injury 
to, the unborn child.
    (2) Bodily injury. For the purpose of this offense, the term 
``bodily injury'' is that which is provided by 18 U.S.C. Sec.  1365, to 
wit: A cut, abrasion, bruise, burn, or disfigurement; physical pain; 
illness; impairment of the function of a bodily member, organ, or 
mental faculty; or any other injury to the body, no matter how 
temporary.
    (3) Unborn child. ``Unborn child'' means a child in utero or a 
member of the species homo sapiens who is carried in the womb, at any 
stage of development, from conception to birth.
d. Lesser Included Offenses
(1) Killing an Unborn, Child
    (a) Article 119a-injuring an unborn child
(2) Intentionally Killing an Unborn Child
    (a) Article 119a-killing an unborn child
    (b) Article 119a-injuring an unborn child
    (c) Article 119a--attempts (attempting to kill an unborn child)
e. Maximum Punishment
    The maximum punishment for (1) Injuring an unborn child; (2) 
Killing an unborn child; (3) Attempting to kill an unborn child; or (4) 
Intentionally killing an unborn child is such punishment, other than 
death, as a court-martial may direct, but shall be consistent with the 
punishment had the injury, death, attempt to kill or intentional 
killing occurred to the unborn child's mother.
f. Sample Specifications
(1) Injuring an Unborn Child
    In that ------------ (personal jurisdiction data), did (at/on 
board--location), (subject-matter jurisdiction data, if required), on 
or about ------ 20 ----, cause bodily injury to the unborn child of --
----------, a pregnant woman, by engaging in the [(murder) (voluntary 
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) 
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by) 
(a structure or property known to (be occupied by) (belong to))] that 
woman.
(2) Killing an Unborn Child
    In that ------------ (personal jurisdiction data), did (at/on 
board--location), (subject-matter jurisdiction data, if required), on 
or about ------ 20 ----, cause the death of the unborn child of ------
------, a pregnant woman, by engaging in the [(murder) (voluntary 
manslaughter)(involuntary manslaughter) (rape) (robbery) (maiming) 
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by) 
(a structure or property known to (be occupied by) (belong to))] that 
woman.
(3) Attempting to Kill an Unborn Child
    In that ------------ (personal jurisdiction data), did (at/on 
board--location), (subject-matter jurisdiction data, if required), on 
or about ------ 20----, attempt to kill the unborn child of ----------
--, a pregnant woman, by engaging in the [(murder) (voluntary 
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) 
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by) 
(a structure or property known to (be occupied by) (belong to))] that 
woman.
(4) Intentionally Kiling an Unborn Child
    In that ------------ (personal jurisdication data), did (at/on 
board--location), (subject-matter jurisdiction data, if required), on 
or about ------ 20----, intentionally kill the unborn child of --------
----, a pregnant woman, by engaging in the [(murder) (voluntary 
manslaughter) (involuntary manslaughter) (rape) (robbery) (maiming) 
(assault) of] [(burning) (setting afire) of (a dwelling inhabited by) 
(a structure or property known to (be occupied by) (belong to))] that 
woman.
    Amend Appendix 12, Maximum Punishment Chart by inserting the 
following before Article 120, rape:

119a Death or Injury of an Unborn Child

    Injuring or killing an unborn child Article 119a * * * Such 
punishment, other than death, as a court-martial may direct but such 
punishment shall be consistent with the punishment had the bodily 
injury or death occurred to the unborn child's mother.
    Attempting to kill an unborn child Article 119a * * * Such 
punishment, other than death, as a court-martial may direct but such 
punishment shall be consistent with the punishment had the attempt been 
made to kill the unborn child's mother.
    Intentional killing of an unborn child Article 119a * * * Such 
punishment, other than death, as a court-martial may direct but such 
punishment shall be consistent with the punishment had the killing 
occurred to the unborn child's mother.
    Amend Appendix 23, Analysis of Punitive Articles by adding the 
following new analysis:

44a. Article 119a--(Death or Injury of an Unborn Child)

    c. Explanation. This paragraph is new and is based on Public Law 
108-212, 18 U.S.C. Sec.  1841 and 10 U.S.C. Sec.  919a (Unborn Victims 
of Violence Act of 2004) enacted on 1 April 2004.
    Amend paragraph 97, Article 134--(Pandering and prostitution) to 
add the new offense of patronizing a prostitute. The Article as amended 
will read:
a. Text--See Paragraph 60
b. Elements
(1) Prostitution
    (a) That the accused had sexual intercourse with another person not 
the accused's spouse;
    (b) That the accused did so for the purpose of receiving money or 
other compensation;
    (c) That this act was wrongful; and
    (d) 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.

[[Page 55604]]

(2) Patronizing a Prostitute
    (a) That the accused had sexual intercourse with another person not 
the accused's spouse;
    (b) That the accused compelled, induced, enticed, or procured such 
person to engage in act of sexual intercourse in exchange for money or 
other compensation; and
    (c) That this act was wrongful; and
    (d) That, under the circumstances, the conduct of the accused was 
to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
(3) Pandering by Compelling, Inducing, Enticing, or Procuring Act of 
Prostitution
    (a) That the accused compelled, induced, enticed, or procured a 
certain person to engage in an act of sexual intercourse for hire and 
reward with a person to be directed to said person by the accused;
    (b) That this compelling, inducing, enticing, or procuring was 
wrongful; and
    (c) That, under the circumstances, the conduct of the accused was 
to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
(4) Pandering by Arranging or Receiving Consideration for Arranging for 
Sexual Intercourse or Sodomy
    (a) That the accused arranged for, or received valuable 
consideration for arranging for, a certain person to engage in sexual 
intercourse or sodomy with another person;
    (b) That the arranging (and receipt of consideration) was wrongful; 
and
    (c) That, under the circumstances, the conduct of the accused was 
to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
c. Explanation
    Prostitution may be committed by males or females. Sodomy for money 
or compensation is not included in subparagraph b(1). Sodomy may be 
charged under paragraph 51. Evidence that sodomy was for money or 
compensation may be a matter in aggravation. See R.C.M. 1001(b)(4).
d. Lesser Included Offense. Article 80-Attempts
e. Maximum Punishment
    (1) Prostitution and patronizing a prostitute. Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 1 
year.
    (2) Pandering. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for 5 years.
f. Sample Specifications
(1) Prostitution
    In that---- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or 
about----20----, wrongfully engage in (an act) (acts) of sexual 
intercourse with----, a person not his/her spouse, for the purpose of 
receiving (money) (----).
(2) Patronizing a Prostitute
    In that ----(personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or 
about----20----, wrongfully (compel) (induce) (entice) (procure)----, a 
person not his/her spouse, to engage in (an act) (acts) of sexual 
intercourse with the accused in exchange for (money) (--------).
(3) Compelling, Inducing, Enticing, or Procuring Act of Prostitution
    In that----(personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or 
about----, 20----, wrongfully (compel) (induce) (entice) (procure) ---- 
to engage in (an act) (acts) of (sexual intercourse for hire and reward 
with persons to be directed to him/her by the said ----.
(4) Arranging, or Receiving Consideration for Arranging for Sexual 
Intercourse or Sodomy
    In that---- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or 
about---- 20 ----, wrongfully (arrange for) (receive valuable 
consideration, to wit: ---- on account of arranging for-) ---- to 
engage in (an act) (acts) of sexual intercourse) (sodomy) with ----.
    Amend Appendix 12, Maximum Punishment Chart by substituting 
``Prostitution and patronizing a prostitute'' for ``Prostitution.''
    Amend appendix 23, Analysis of Punitive Articles by amending the 
Analysis accompanying paragraph 97 by adding the following:
    ``200-- Amendment: b. Elements. Subparagraph (2) defines the 
elements of the offense of patronizing a prostitute. Old subparagraphs 
(2) and (3) are now (3) and (4) respectively.''

    Dated: September 9, 2004
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-20723 Filed 9-14-04; 8:45 am]
BILLING CODE 5001-06-M