[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Notices]
[Pages 64854-64887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25852]



[[Page 64853]]

Vol. 77

Tuesday,

No. 205

October 23, 2012

Part II





Defense Department





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Manual for Courts-Martial; Proposed Amendments; Notice

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

[[Page 64854]]


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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 Courts-Martial, 
United States (2012 ed.) and Notice of Public Meeting.

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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 [email protected].

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:

Annex

    Section 1. Part I of the Manual for Courts-Martial, 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 Courts-Martial, 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 Courts-Martial, 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 court-martial 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

[[Page 64855]]

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

[[Page 64856]]

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. Sec.  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 Courts-Martial, 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

[[Page 64857]]

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:

[[Page 64858]]

    (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.

[[Page 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

[[Page 64860]]

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:

[[Page 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: ------------------)

[[Page 64862]]

(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

[[Page 64863]]

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

[[Page 64864]]

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.

[[Page 64865]]

    (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) (subject-matter 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

[[Page 64866]]

    (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.
----------------------------------------------------------------------------------------------------------------
\4\ With 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.
----------------------------------------------------------------------------------------------------------------
\4\ With 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     DD,BCD..................  7 yrs...................  Total.
 Indecent Visual Recording.
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]
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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

[[Page 64873]]

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 
electronically stored information for pretrial

[[Page 64874]]

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 Court-Martial 
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, Sec.  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

[[Page 64875]]

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 Sec.  
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 Sec.  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:

[[Page 64876]]

    ``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 --------, (personal jurisdiction data), did (at/on 
board location), on or about ---- 20----, (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 --------, (personal jurisdiction data), did (at/on board 
location), on or about -------- 20----, (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.

[[Page 64877]]

    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 court-
martial, 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

[[Page 64878]]

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 well-understood 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

[[Page 64879]]

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 co-
tenant 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-
and-frisk 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

[[Page 64880]]

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

[[Page 64881]]

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 victim-victim 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.''

[[Page 64882]]

    (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 
closed-circuit 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. Sec.  
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:

[[Page 64883]]

    ``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:

[[Page 64884]]

    ``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

[[Page 64885]]

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 gender-neutral 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

[[Page 64886]]

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:

[[Page 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