[Weekly Compilation of Presidential Documents Volume 34, Number 22 (Monday, June 1, 1998)]
[Pages 973-991]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13086--1998 Amendments to the Manual for Courts-Martial, 
United States

May 27, 1998

    By the authority vested in me as President by the Constitution and 
the laws of the United States of America, including chapter 47 of title 
10, United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-
946), in order to prescribe amendments to the Manual for Courts-Martial, 
United States, prescribed by Executive Order No. 12473, as amended by 
Executive Order No. 12484, Executive Order No. 12550, Executive Order 
No. 12586, Executive Order No. 12708, Executive Order No. 12767, 
Executive Order No. 12888, Executive Order No. 12936, and Executive 
Order No. 12960, it is hereby ordered as follows:
    Section 1. Part II of the Manual for Courts-Martial, United States, 
is amended as follows:
    a. R.C.M. 305(g) through 305(k) are amended to read as follows:
    ``(g) Who may direct release from confinement. Any commander of a 
prisoner, an officer appointed under regulations of the Secretary 
concerned to conduct the review under subsections (i) and/or (j) of this 
rule or, once charges have been referred, a military judge detailed to 
the court-martial to which the charges against the accused have been 
referred, may direct release from pretrial confinement. For the purposes 
of this subsection, ``any commander'' includes the immediate or higher 
commander of the prisoner and the commander of the installation on which 
the confinement facility is located.
    (h) Notification and action by commander.
      (1) Report. Unless the commander of the prisoner ordered the 
pretrial confinement, the commissioned, warrant, noncommissioned, or 
petty officer into whose charge the prisoner was committed shall, within 
24 hours after that commitment, cause a report to be made to the 
commander that shall contain the name of the prisoner, the offenses 
charged against the prisoner, and

[[Page 974]]

the name of the person who ordered or authorized confinement.
      (2) Action by commander.
        (A) Decision. Not later than 72 hours after the commander's 
ordering of a prisoner into pretrial confinement or, after receipt of a 
report that a member of the commander's unit or organization has been 
confined, whichever situation is applicable, the commander shall decide 
whether pretrial confinement will continue. A commander's compliance 
with this subsection may also satisfy the 48-hour probable cause 
determination of subsection R.C.M. 305(i)(1) below, provided the 
commander is a neutral and detached officer and acts within 48 hours of 
the imposition of confinement under military control. Nothing in 
subsections R.C.M. 305(d), R.C.M. 305(i)(1), or this subsection prevents 
a neutral and detached commander from completing the 48-hour probable 
cause determination and the 72-hour commander's decision immediately 
after an accused is ordered into pretrial confinement.
        (B) Requirements for confinement. The commander shall direct the 
prisoner's release from pretrial confinement unless the commander 
believes upon probable cause, that is, upon reasonable grounds, that:
          (i) An offense triable by a court-martial has been committed;
          (ii) The prisoner committed it; and
          (iii) Confinement is necessary because it is foreseeable that:
          (a) The prisoner will not appear at trial, pretrial hearing, 
            or investigation, or
          (b) The prisoner will engage in serious criminal misconduct; 
            and
          (iv) Less severe forms of restraint are inadequate.
    Serious criminal misconduct includes intimidation of witnesses or 
other obstruction of justice, serious injury to others, or other 
offenses that pose a serious threat to the safety of the community or to 
the effectiveness, morale, discipline, readiness, or safety of the 
command, or to the national security of the United States. As used in 
this rule, ``national security'' means the national defense and foreign 
relations of the United States and specifically includes: military or 
defense advantage over any foreign nation or group of nations; a 
favorable foreign relations position; or a defense posture capable of 
successfully resisting hostile or destructive action from within or 
without, overt or covert.
        (C) 72-hour memorandum. If continued pretrial confinement is 
approved, the commander shall prepare a written memorandum that states 
the reasons for the conclusion that the requirements for confinement in 
subsection (h)(2)(B) of this rule have been met. This memorandum may 
include hearsay and may incorporate by reference other documents, such 
as witness statements, investigative reports, or official records. This 
memorandum shall be forwarded to the 7-day reviewing officer under 
subsection (i)(2) of this rule. If such a memorandum was prepared by the 
commander before ordering confinement, a second memorandum need not be 
prepared; however, additional information may be added to the memorandum 
at any time.
    (i) Procedures for review of pretrial confinement.
      (1) 48-hour probable cause determination. Review of the adequacy 
of probable cause to continue pretrial confinement shall be made by a 
neutral and detached officer within 48 hours of imposition of 
confinement under military control. If the prisoner is apprehended by 
civilian authorities and remains in civilian custody at the request of 
military authorities, reasonable efforts will be made to bring the 
prisoner under military control in a timely fashion.
      (2) 7-day review of pretrial confinement. Within 7 days of the 
imposition of confinement, a neutral and detached officer appointed in 
accordance with regulations prescribed by the Secretary concerned shall 
review the probable cause

determination and necessity for continued pretrial confinement. In 
calculating the number of days of confinement for purposes of this rule, 
the initial date of confinement under military control shall count as one 
day and the date of the review shall also count as one day.

        (A) Nature of the 7-day review.
          (i) Matters considered. The review under this subsection shall 
include a review of the memorandum submitted by the prisoner's commander 
under subsection

[[Page 975]]

(h)(2)(C) of this rule. Additional written matters may be considered, 
including any submitted by the accused. The prisoner and the prisoner's 
counsel, if any, shall be allowed to appear before the 7-day reviewing 
officer and make a statement, if practicable. A representative of the 
command may also appear before the reviewing officer to make a 
statement.
          (ii) Rules of evidence. Except for Mil. R. Evid., Section V 
(Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of 
Evidence shall not apply to the matters considered.
          (iii) Standard of proof. The requirements for confinement 
under subsection (h)(2)(B) of this rule must be proved by a 
preponderance of the evidence.
        (B) Extension of time limit. The 7-day reviewing officer may, 
for good cause, extend the time limit for completion of the review to 10 
days after the imposition of pretrial confinement.
        (C) Action by 7-day reviewing officer. Upon completion of 
review, the reviewing officer shall approve continued confinement or 
order immediate release.
        (D) Memorandum. The 7-day reviewing officer's conclusions, 
including the factual findings on which they are based, shall be set 
forth in a written memorandum. A copy of the memorandum and of all 
documents considered by the 7-day reviewing officer shall be maintained 
in accordance with regulations prescribed by the Secretary concerned and 
provided to the accused or the Government on request.
        (E) Reconsideration of approval of continued confinement. The 7-
day reviewing officer shall upon request, and after notice to the 
parties, reconsider the decision to confine the prisoner based upon any 
significant information not previously considered.
    (j) Review by military judge. Once the charges for which the accused 
has been confined are referred to trial, the military judge shall review 
the propriety of the pretrial confinement upon motion for appropriate 
relief.
      (1) Release. The military judge shall order release from pretrial 
confinement only if:
        (A) The 7-day reviewing officer's decision was an abuse of 
discretion, and there is not sufficient information presented to the 
military judge justifying continuation of pretrial confinement under 
subsection (h)(2)(B) of this rule;
        (B) Information not presented to the 7-day reviewing officer 
establishes that the prisoner should be released under subsection 
(h)(2)(B) of this rule; or
        (C) The provisions of subsection (i)(1) or (2) of this rule have 
not been complied with and information presented to the military judge 
does not establish sufficient grounds for continued confinement under 
subsection (h)(2)(B) of this rule.
      (2) Credit. The military judge shall order administrative credit 
under subsection (k) of this rule for any pretrial confinement served as 
a result of an abuse of discretion or failure to comply with the 
provisions of subsections (f), (h), or (i) of this rule.
    (k) Remedy. The remedy for noncompliance with subsections (f), (h), 
(i), or (j) of this rule shall be an administrative credit against the 
sentence adjudged for any confinement served as the result of such 
noncompliance. Such credit shall be computed at the rate of 1 day credit 
for each day of confinement served as a result of such noncompliance. 
The military judge may order additional credit for each day of pretrial 
confinement that involves an abuse of discretion or unusually harsh 
circumstances. This credit is to be applied in addition to any other 
credit to which the accused may be entitled as a result of pretrial 
confinement served. This credit shall be applied first against any 
confinement adjudged. If no confinement is adjudged, or if the 
confinement adjudged is insufficient to offset all the credit to which 
the accused is entitled, the credit shall be applied against adjudged 
hard labor without confinement, restriction, fine, and forfeiture of 
pay, in that order, using the conversion formula under R.C.M. 1003(b)(6) 
and (7). For purposes of this subsection, 1 day of confinement shall be 
equal to 1 day of total forfeitures or a like amount of fine. The credit 
shall not be applied against any other form of punishment.''
b. R.C.M. 405(e) is amended to read as follows:
    ``(e) Scope of investigation. The investigating officer shall 
inquire into the truth and

[[Page 976]]

form of the charges, and such other matters as may be necessary to make 
a recommendation as to the disposition of the charges. If evidence 
adduced during the investigation indicates that the accused committed an 
uncharged offense, the investigating officer may investigate the subject 
matter of such offense and make a recommendation as to its disposition, 
without the accused first having been charged with the offense. The 
accused's rights under subsection (f) are the same with regard to 
investigation of both charged and uncharged offenses.''
c. R.C.M. 706(c)(2)(D) is amended to read as follows:
        ``(D) Is the accused presently suffering from a mental disease 
or defect rendering the accused unable to understand the nature of the 
proceedings against the accused or to conduct or cooperate intelligently 
in the defense of the case?''
d. R.C.M. 707(b)(3) is amended by adding subsection (E) which reads as 
follows:
        ``(E) Commitment of the incompetent accused. If the accused is 
committed to the custody of the Attorney General for hospitalization as 
provided in R.C.M. 909(f), all periods of such commitment shall be 
excluded when determining whether the period in subsection (a) of this 
rule has run. If, at the end of the period of commitment, the accused is 
returned to the custody of the general court-martial convening 
authority, a new 120-day time period under this rule shall begin on the 
date of such return to custody.''
e. R.C.M. 707(c) is amended to read as follows:
    ``(c) Excludable delay. All periods of time during which appellate 
courts have issued stays in the proceedings, or the accused is 
hospitalized due to incompetence, or is otherwise in the custody of the 
Attorney General, shall be excluded when determining whether the period 
in subsection (a) of this rule has run. All other pretrial delays 
approved by a military judge or the convening authority shall be 
similarly excluded.''
f. R.C.M. 809(b)(1) is amended by deleting the last sentence, which 
reads:
    ``In such cases, the regular proceedings shall be suspended while 
the contempt is disposed of.''
g. R.C.M. 809(c) is amended to read as follows:
    ``(c) Procedure. The military judge shall in all cases determine 
whether to punish for contempt and, if so, what the punishment shall be. 
The military judge shall also determine when during the court-martial 
the contempt proceedings shall be conducted; however, if the court-
martial is composed of members, the military judge shall conduct the 
contempt proceedings outside the members' presence. The military judge 
may punish summarily under subsection (b)(1) only if the military judge 
recites the facts for the record and states that they were directly 
witnessed by the military judge in the actual presence of the court-
martial. Otherwise, the provisions of subsection (b)(2) shall apply.''
h. R.C.M. 908(a) is amended to read as follows:
    ``(a) In general. In a trial by a court-martial over which a 
military judge presides and in which a punitive discharge may be 
adjudged, the United States may appeal an order or ruling that 
terminates the proceedings with respect to a charge or specification, or 
excludes evidence that is substantial proof of a fact material in the 
proceedings, or directs the disclosure of classified information, or 
that imposes sanctions for nondisclosure of classified information. The 
United States may also appeal a refusal by the military judge to issue a 
protective order sought by the United States to prevent the disclosure 
of classified information or to enforce such an order that has 
previously been issued by the appropriate authority. However, the United 
States may not appeal an order or ruling that is, or amounts to, a 
finding of not guilty with respect to the charge or specification.''
i. R.C.M. 909 is amended to read as follows:
    ``(a) In general. No person may be brought to trial by court-martial 
if that person is presently suffering from a mental disease or defect 
rendering him or her mentally incompetent to the extent that he or she 
is unable to understand the nature of the proceedings against them or to 
conduct or cooperate intelligently in the defense of the case.
    (b) Presumption of capacity. A person is presumed to have the 
capacity to stand trial unless the contrary is established.

[[Page 977]]

    (c) Determination before referral. If an inquiry pursuant to R.C.M. 
706 conducted before referral concludes that an accused is suffering 
from a mental disease or defect that renders him or her mentally 
incompetent to stand trial, the convening authority before whom the 
charges are pending for disposition may disagree with the conclusion and 
take any action authorized under R.C.M. 401, including referral of the 
charges to trial. If that convening authority concurs with the 
conclusion, he or she shall forward the charges to the general court-
martial convening authority. If, upon receipt of the charges, the 
general court-martial convening authority similarly concurs, then he or 
she shall commit the accused to the custody of the Attorney General. If 
the general court-martial convening authority does not concur, that 
authority may take any action that he or she deems appropriate in 
accordance with R.C.M. 407, including referral of the charges to trial.
    (d) Determination after referral. After referral, the military judge 
may conduct a hearing to determine the mental capacity of the accused, 
either sua sponte or upon request of either party. If an inquiry 
pursuant to R.C.M. 706 conducted before or after referral concludes that 
an accused is suffering from a mental disease or defect that renders him 
or her mentally incompetent to stand trial, the military judge shall 
conduct a hearing to determine the mental capacity of the accused. Any 
such hearing shall be conducted in accordance with paragraph (e) of this 
rule.
    (e) Incompetence determination hearing.
      (1) Nature of issue. The mental capacity of the accused is an 
interlocutory question of fact.
      (2) Standard. Trial may proceed unless it is established by a 
preponderance of the evidence that the accused is presently suffering 
from a mental disease or defect rendering him or her mentally 
incompetent to the extent that he or she is unable to understand the 
nature of the proceedings or to conduct or cooperate intelligently in 
the defense of the case. In making this determination, the military 
judge is not bound by the rules of evidence except with respect to 
privileges.
      (3) If the military judge finds the accused is incompetent to 
stand trial, the judge shall report this finding to the general court-
martial convening authority, who shall commit the accused to the custody 
of the Attorney General.
    (f) Hospitalization of the accused. An accused who is found 
incompetent to stand trial under this rule shall be hospitalized by the 
Attorney General as provided in section 4241(d) of title 18, United 
States Code. If notified that the accused has recovered to such an 
extent that he or she is able to understand the nature of the 
proceedings and to conduct or cooperate intelligently in the defense of 
the case, then the general court-martial convening authority shall 
promptly take custody of the accused. If, at the end of the period of 
hospitalization, the accused's mental condition has not so improved, 
action shall be taken in accordance with section 4246 of title 18, 
United States Code.
    (g) Excludable delay. All periods of commitment shall be excluded as 
provided by R.C.M. 707(c). The 120-day time period under R.C.M. 707 
shall begin anew on the date the general court-martial convening 
authority takes custody of the accused at the end of any period of 
commitment.''
j. R.C.M. 916(b) is amended to read as follows:
    ``(b) Burden of proof. Except for the defense of lack of mental 
responsibility and the defense of mistake of fact as to age as described 
in Part IV, para. 45c.(2) in a prosecution for carnal knowledge, the 
prosecution shall have the burden of proving beyond a reasonable doubt 
that the defense did not exist. The accused has the burden of proving 
the defense of lack of mental responsibility by clear and convincing 
evidence, and has the burden of proving mistake of fact as to age in a 
carnal knowledge prosecution by a preponderance of the evidence.''
k. R.C.M. 916(j) is amended to read as follows:
    ``(j) Ignorance or mistake of fact.
      (1) Generally. Except as otherwise provided in this subsection, it 
is a defense to an offense that the accused held, as a result of 
ignorance or mistake, an incorrect belief of the true circumstances such 
that, if the circumstances were as the accused believed

[[Page 978]]

them, the accused would not be guilty of the offense. If the ignorance 
or mistake goes to an element requiring premeditation, specific intent, 
willfulness, or knowledge of a particular fact, the ignorance or mistake 
need only have existed in the mind of the accused. If the ignorance or 
mistake goes to any other element requiring only general intent or 
knowledge, the ignorance or mistake must have existed in the mind of the 
accused and must have been reasonable under all the circumstances. 
However, if the accused's knowledge or intent is immaterial as to an 
element, then ignorance or mistake is not a defense.
      (2) Carnal knowledge. It is a defense to a prosecution for carnal 
knowledge that, at the time of the sexual intercourse, the person with 
whom the accused had sexual intercourse was at least 12 years of age, 
and the accused reasonably believed the person was at least 16 years of 
age. The accused must prove this defense by a preponderance of the 
evidence.''
l. 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 as to age in a carnal knowledge 
prosecution is raised, add: The burden of proving the defense of mistake 
of fact as to age in carnal knowledge by a preponderance of the evidence 
is upon the accused.]''
m. R.C.M. 1005(e) is amended to read as follows:
    ``(e) Required Instructions. Instructions on sentence shall include:
      (1) A statement of the maximum authorized punishment that may be 
adjudged and of the mandatory minimum punishment, if any;
      (2) A statement of the effect any sentence announced including a 
punitive discharge and confinement, or confinement in excess of six 
months, will have on the accused's entitlement to pay and allowances;
      (3) A statement of the procedures for deliberation and voting on 
the sentence set out in R.C.M. 1006;
      (4) A statement informing the members that they are solely 
responsible for selecting an appropriate sentence and may not rely on 
the possibility of any mitigating action by the convening or higher 
authority; and
      (5) A statement that the members should consider all matters in 
extenuation, mitigation, and aggravation, whether introduced before or 
after findings, and matters introduced under R.C.M. 1001(b) (1), (2), 
(3), and (5).''
n. The heading for R.C.M. 1101 is amended as follows:
``Rule 1101. Report of result of trial; post-trial restraint; deferment 
of confinement, forfeitures and reduction in grade; waiver of Article 
58b forfeitures''
o. R.C.M. 1101(c) is amended as follows:
    ``(c) Deferment of confinement, forfeitures or reduction in grade.
      (1) In general. Deferment of a sentence to confinement, 
forfeitures, or reduction in grade is a postponement of the running of a 
sentence.
      (2) Who may defer. The convening authority or, if the accused is 
no longer in the convening authority's jurisdiction, the officer 
exercising general court-martial jurisdiction over the command to which 
the accused is assigned, may, upon written application of the accused at 
any time after the adjournment of the court-martial, defer the accused's 
service of a sentence to confinement, forfeitures, or reduction in grade 
that has not been ordered executed.
      (3) Action on deferment request. The authority acting on the 
deferment request may, in that authority's discretion, defer service of 
a sentence to confinement, forfeitures, or reduction in grade. The 
accused shall have the burden of showing that the interests of the 
accused and the community in deferral outweigh the community's interest 
in imposition of the punishment on its effective date. Factors that the 
authority acting on a deferment request may consider in determining 
whether to grant the deferment request include, where applicable: the 
probability of the accused's flight; the probability of the

[[Page 979]]

accused's commission of other offenses, intimidation of witnesses, or 
interference with the administration of justice; the nature of the 
offenses (including the effect on the victim) of which the accused was 
convicted; the sentence adjudged; the command's immediate need for the 
accused; the effect of deferment on good order and discipline in the 
command; the accused's character, mental condition, family situation, 
and service record. The decision of the authority acting on the 
deferment request shall be subject to judicial review only for abuse of 
discretion. The action of the authority acting on the deferment request 
shall be in writing and a copy shall be provided to the accused.
      (4) Orders. The action granting deferment shall be reported in the 
convening authority's action under R.C.M. 1107(f)(4)(E) and shall 
include the date of the action on the request when it occurs prior to or 
concurrently with the action. Action granting deferment after the 
convening authority's action under R.C.M. 1107 shall be reported in 
orders under R.C.M. 1114 and included in the record of trial.
      (5) Restraint when deferment is granted. When deferment of 
confinement is granted, no form of restraint or other limitation on the 
accused's liberty may be ordered as a substitute form of punishment. An 
accused may, however, be restricted to specified limits or conditions 
may be placed on the accused's liberty during the period of deferment 
for any other proper reason, including a ground for restraint under 
R.C.M. 304.
      (6) End of deferment. Deferment of a sentence to confinement, 
forfeitures, or reduction in grade ends when:
        (A) The convening authority takes action under R.C.M. 1107, 
unless the convening authority specifies in the action that service of 
confinement after the action is deferred;
        (B) The confinement, forfeitures, or reduction in grade are 
suspended;
        (C) The deferment expires by its own terms; or
        (D) The deferment is otherwise rescinded in accordance with 
subsection (c)(7) of this rule. Deferment of confinement may not 
continue after the conviction is final under R.C.M. 1209.
      (7) Rescission of deferment.
        (A) Who may rescind. The authority who granted the deferment or, 
if the accused is no longer within that authority's jurisdiction, the 
officer exercising general court-martial jurisdiction over the command 
to which the accused is assigned, may rescind the deferment.
        (B) Action. Deferment of confinement, forfeitures, or reduction 
in grade may be rescinded when additional information is presented to a 
proper authority which, when considered with all other information in 
the case, that authority finds, in that authority's discretion, is 
grounds for denial of deferment under subsection (c)(3) of this rule. 
The accused shall promptly be informed of the basis for the rescission 
and of the right to submit written matters on the accused's behalf and 
to request that the rescission be reconsidered. However, the accused may 
be required to serve the sentence to confinement, forfeitures, or 
reduction in grade pending this action.
        (C) Execution. When deferment of confinement is rescinded after 
the convening authority's action under R.C.M. 1107, the confinement may 
be ordered executed. However, no such order to rescind a deferment of 
confinement may be issued within 7 days of notice of the rescission of a 
deferment of confinement to the accused under subsection (c)(7)(B) of 
this rule, to afford the accused an opportunity to respond. The 
authority rescinding the deferment may extend this period for good cause 
shown. The accused shall be credited with any confinement actually 
served during this period.
        (D) Orders. Rescission of a deferment before or concurrently 
with the initial action in the case shall be reported in the action 
under R.C.M. 1107(f)(4)(E), which action shall include the dates of the 
granting of the deferment and the rescission. Rescission of a deferment 
of confinement after the convening authority's action shall be reported 
in supplementary orders in accordance with R.C.M. 1114 and shall state 
whether the approved period of confinement is to be executed or whether 
all or part of it is to be suspended.''

[[Page 980]]

p. R.C.M. 101 is amended by adding the following new subparagraph (d):
    ``(d) Waiving forfeitures resulting from a sentence to confinement 
to provide for dependent support.
      (1) With respect to forfeiture of pay and allowances resulting 
only by operation of law and not adjudged by the court, the convening 
authority may waive, for a period not to exceed six months, all or part 
of the forfeitures for the purpose of providing support to the accused's 
dependent(s). The convening authority may waive and direct payment of 
any such forfeitures when they become effective by operation of Article 
57(a).
      (2) Factors that may be considered by the convening authority in 
determining the amount of forfeitures, if any, to be waived include, but 
are not limited to, the length of the accused's confinement, the number 
and age(s) of the accused's family members, whether the accused 
requested waiver, any debts owed by the accused, the ability of the 
accused's family members to find employment, and the availability of 
transitional compensation for abused dependents permitted under 10 
U.S.C. 1059.
      (3) For the purposes of this Rule, a ``dependent'' means any 
person qualifying as a ``dependent'' under 37 U.S.C. 401.''
q. The following new rule is added after R.C.M. 1102:
``Rule 1102A. Post-trial hearing for person found not guilty only by 
reason of lack of mental responsibility
    (a) In general. The military judge shall conduct a hearing not later 
than forty days following the finding that an accused is not guilty only 
by reason of a lack of mental responsibility.
    (b) Psychiatric or psychological examination and report. Prior to 
the hearing, the military judge or convening authority shall order a 
psychiatric or psychological examination of the accused, with the 
resulting psychiatric or psychological report transmitted to the 
military judge for use in the post-trial hearing.
    (c) Post-trial hearing.
      (1) The accused shall be represented by defense counsel and shall 
have the opportunity to testify, present evidence, call witnesses on his 
or her behalf, and to confront and cross-examine witnesses who appear at 
the hearing.
      (2) The military judge is not bound by the rules of evidence 
except with respect to privileges.
      (3) An accused found not guilty only by reason of a lack of mental 
responsibility of an offense involving bodily injury to another, or 
serious damage to the property of another, or involving a substantial 
risk of such injury or damage, has the burden of proving by clear and 
convincing evidence that his or her release would not create a 
substantial risk of bodily injury to another person or serious damage to 
property of another due to a present mental disease or defect. With 
respect to any other offense, the accused has the burden of such proof 
by a preponderance of the evidence.
      (4) If, after the hearing, the military judge finds the accused 
has satisfied the standard specified in subsection (3) of this section, 
the military judge shall inform the general court-martial convening 
authority of this result and the accused shall be released. If, however, 
the military judge finds after the hearing that the accused has not 
satisfied the standard specified in subsection (3) of this section, then 
the military judge shall inform the general court-martial convening 
authority of this result and that authority may commit the accused to 
the custody of the Attorney General.''
r. R.C.M. 1105(b) is amended to read as follows:
    ``(b) Matters that may be submitted.
      (1) The accused may submit to the convening authority any matters 
that may reasonably tend to affect the convening authority's decision 
whether to disapprove any findings of guilt or to approve the sentence. 
The convening authority is only required to consider written 
submissions.
      (2) Submissions are not subject to the Military Rules of Evidence 
and may include:
        (A) Allegations of errors affecting the legality of the findings 
or sentence;
        (B) Portions or summaries of the record and copies of 
documentary evidence offered or introduced at trial;
        (C) Matters in mitigation that were not available for 
consideration at the court-martial; and

[[Page 981]]

        (D) Clemency recommendations by any member, the military judge, 
or any other person. The defense may ask any person for such a 
recommendation.''
s. R.C.M. 1107(b)(4) is amended to read as follows:
      ``(4) When proceedings resulted in a finding of not guilty or not 
guilty only by reason of lack of mental responsibility, or there was a 
ruling amounting to a finding of not guilty. The convening authority 
shall not take action disapproving a finding of not guilty, a finding of 
not guilty only by reason of lack of mental responsibility, or a ruling 
amounting to a finding of not guilty. When an accused is found not 
guilty only by reason of lack of mental responsibility, the convening 
authority, however, shall commit the accused to a suitable facility 
pending a hearing and disposition in accordance with R.C.M. 1102A.''
t. The subheading for R.C.M. 1107(d)(3) is amended to read as follows:
      ``(3) Deferring service of a sentence to confinement.''
u. R.C.M. 1107(d)(3)(A) is amended to read as follows:
        ``(A) In a case in which a court-martial sentences an accused 
referred to in subsection (B), below, to confinement, the convening 
authority may defer service of a sentence to confinement by a court-
martial, without the consent of the accused, until after the accused has 
been permanently released to the armed forces by a state or foreign 
country.''
v. R.C.M. 1109 is amended to read as follows:
``Rule 1109. Vacation of suspension of sentence
    (a) In general. Suspension of execution of the sentence of a court-
martial may be vacated for violation of the conditions of the suspension 
as provided in this rule.
    (b) Timeliness.
      (1) Violation of conditions. Vacation shall be based on a 
violation of the conditions of suspension that occurs within the period 
of suspension.
      (2) Vacation proceedings. Vacation proceedings under this rule 
shall be completed within a reasonable time.
      (3) Order vacating the suspension. The order vacating the 
suspension shall be issued before the expiration of the period of 
suspension.
      (4) Interruptions to the period of suspension. Unauthorized 
absence of the probationer or the commencement of proceedings under this 
rule to vacate suspension interrupts the running of the period of 
suspension.
    (c) Confinement of probationer pending vacation proceedings.
      (1) In general. A probationer under a suspended sentence to 
confinement may be confined pending action under subsection (d)(2) of 
this rule, in accordance with the procedures in this subsection.
      (2) Who may order confinement. Any person who may order pretrial 
restraint under R.C.M. 304(b) may order confinement of a probationer 
under a suspended sentence to confinement.
      (3) Basis for confinement. A probationer under a suspended 
sentence to confinement may be ordered into confinement upon probable 
cause to believe the probationer violated any conditions of the 
suspension.
      (4) Review of confinement. Unless proceedings under subsection 
(d)(1), (e), (f), or (g) of this rule are completed within 7 days of 
imposition of confinement of the probationer (not including any delays 
requested by probationer), a preliminary hearing shall be conducted by a 
neutral and detached officer appointed in accordance with regulations of 
the Secretary concerned.
        (A) Rights of accused. Before the preliminary hearing, the 
accused shall be notified in writing of:
          (i) The time, place, and purpose of the hearing, including the 
alleged violation(s) of the conditions of suspension;
          (ii) The right to be present at the hearing;
          (iii) The right to be represented at the hearing by civilian 
counsel provided by the probationer or, upon request, by military 
counsel detailed for this purpose; and
          (iv) The opportunity to be heard, to present witnesses who are 
reasonably available and other evidence, and the right to confront and 
cross-examine adverse witnesses unless the hearing officer determines 
that this would subject these witnesses to risk or harm. For purposes of 
this subsection, a

[[Page 982]]

witness is not reasonably available if the witness requires 
reimbursement by the United States for cost incurred in appearing, 
cannot appear without unduly delaying the proceedings or, if a military 
witness, cannot be excused from other important duties.
        (B) Rules of evidence. Except for Mil. R. Evid. Section V 
(Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of 
Evidence shall not apply to matters considered at the preliminary 
hearing under this rule.
        (C) Decision. The hearing officer shall determine whether there 
is probable cause to believe that the probationer violated the 
conditions of the probationer's suspension. If the hearing officer 
determines that probable cause is lacking, the hearing officer shall 
issue a written order directing that the probationer be released from 
confinement. If the hearing officer determines that there is probable 
cause to believe that the probationer violated the conditions of 
suspension, the hearing officer shall set forth that decision in a 
written memorandum, detailing therein the evidence relied upon and 
reasons for making the decision. The hearing officer shall forward the 
original memorandum or release order to the probationer's commander and 
forward a copy to the probationer and the officer in charge of the 
confinement facility.
    (d) Vacation of suspended general court-martial sentence.
      (1) Action by officer having special court-martial jurisdiction 
over probationer.
        (A) In general. Before vacation of the suspension of any general 
court-martial sentence, the officer having special court-martial 
jurisdiction over the probationer shall personally hold a hearing on the 
alleged violation of the conditions of suspension. If there is no 
officer having special court-martial jurisdiction over the probationer 
who is subordinate to the officer having general court-martial 
jurisdiction over the probationer, the officer exercising general court-
martial jurisdiction over the probationer shall personally hold a 
hearing under subsection (d)(1) of this rule. In such cases, subsection 
(d)(1)(D) of this rule shall not apply.
        (B) Notice to probationer. Before the hearing, the officer 
conducting the hearing shall cause the probationer to be notified in 
writing of:
          (i) The time, place, and purpose of the hearing;
          (ii) The right to be present at the hearing;
          (iii) The alleged violation(s) of the conditions of suspension 
and the evidence expected to be relied on;
          (iv) The right to be represented at the hearing by civilian 
counsel provided by the probationer or, upon request, by military 
counsel detailed for this purpose; and
          (v) The opportunity to be heard, to present witnesses and 
other evidence, and the right to confront and cross-examine adverse 
witnesses, unless the hearing officer determines that there is good 
cause for not allowing confrontation and cross-examination.
        (C) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in R.C.M. 405(g), (h)(1), and (i).
        (D) Record and recommendation. The officer who conducts the 
vacation proceeding shall make a summarized record of the proceeding and 
forward the record and that officer's written recommendation concerning 
vacation to the officer exercising general court-martial jurisdiction 
over the probationer.
        (E) Release from confinement. If the special court-martial 
convening authority finds there is not probable cause to believe that 
the probationer violated the conditions of the suspension, the special 
court-martial convening authority shall order the release of the 
probationer from confinement ordered under subsection (c) of this rule. 
The special court-martial convening authority shall, in any event, 
forward the record and recommendation under subsection (d)(1)(D) of this 
rule.
      (2) Action by officer exercising general court-martial 
jurisdiction over probationer.
        (A) In general. The officer exercising general court-martial 
jurisdiction over the probationer shall review the record produced by 
and the recommendation of the officer exercising special court-martial 
jurisdiction over the probationer, decide whether the probationer 
violated a condition of suspension, and, if so, decide whether to vacate 
the

[[Page 983]]

suspended sentence. If the officer exercising general court-martial 
jurisdiction decides to vacate the suspended sentence, that officer 
shall prepare a written statement of the evidence relied on and the 
reasons for vacating the suspended sentence.
        (B) Execution. Any unexecuted part of a suspended sentence 
ordered vacated under this subsection shall, subject to R.C.M. 1113(c), 
be ordered executed.
    (e) Vacation of a suspended special court-martial sentence wherein a 
bad-conduct discharge was not adjudged.
      (1) In general. Before vacating the suspension of a special court-
martial punishment that does not include a bad-conduct discharge, the 
special court-martial convening authority for the command in which the 
probationer is serving or assigned shall cause a hearing to be held on 
the alleged violation(s) of the conditions of suspension.
      (2) Notice to probationer. The person conducting the hearing shall 
notify the probationer, in writing, before the hearing of the rights 
specified in subsection (d)(1)(B) of this rule.
      (3) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in R.C.M. 405(g), (h)(1), and (i).
      (4) Authority to vacate suspension. The special court-martial 
convening authority for the command in which the probationer is serving 
or assigned shall have the authority to vacate any punishment that the 
officer has the authority to order executed.
      (5) Record and recommendation. If the hearing is not held by the 
commander with authority to vacate the suspension, the person who 
conducts the hearing shall make a summarized record of the hearing and 
forward the record and that officer's written recommendation concerning 
vacation to the commander with authority to vacate the suspension.
      (6) Decision. The special court-martial convening authority shall 
review the record produced by and the recommendation of the person who 
conducted the vacation proceeding, decide whether the probationer 
violated a condition of suspension, and, if so, decide whether to vacate 
the suspended sentence. If the officer exercising jurisdiction decides 
to vacate the suspended sentence, that officer shall prepare a written 
statement of the evidence relied on and the reasons for vacating the 
suspended sentence.
      (7) Execution. Any unexecuted part of a suspended sentence ordered 
vacated under this subsection shall be ordered executed.
    (f) Vacation of a suspended special court-martial sentence that 
includes a bad-conduct discharge.
      (1) The procedure for the vacation of a suspended approved bad-
conduct discharge shall follow that set forth in subsection (d) of this 
rule.
      (2) The procedure for the vacation of the suspension of any lesser 
special court-martial punishment shall follow that set forth in 
subsection (e) of this rule.
    (g) Vacation of a suspended summary court-martial sentence.
      (1) Before vacation of the suspension of a summary court-martial 
sentence, the summary court-martial convening authority for the command 
in which the probationer is serving or assigned shall cause a hearing to 
be held on the alleged violation(s) of the conditions of suspension.
      (2) Notice to probationer. The person conducting the hearing shall 
notify the probationer before the hearing of the rights specified in 
subsections (d)(1)(B)(i), (ii), (iii), and (v) of this rule.
      (3) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in R.C.M. 405(g), (h)(1), and (i).
      (4) Authority to vacate suspension. The summary court-martial 
convening authority for the command in which the probationer is serving 
or assigned shall have the authority to vacate any punishment that the 
officer had the authority to order executed.
      (5) Record and recommendation. If the hearing is not held by the 
commander with authority to vacate the suspension, the person who 
conducts the vacation proceeding shall make a summarized record of the 
proceeding and forward the record and that officer's written 
recommendation concerning vacation to the commander with authority to 
vacate the suspension.
      (6) Decision. A commander with authority to vacate the suspension 
shall review the

[[Page 984]]

record produced by and the recommendation of the person who conducted 
the vacation proceeding, decide whether the probationer violated a 
condition of suspension, and, if so, decide whether to vacate the 
suspended sentence. If the officer exercising jurisdiction decides to 
vacate the suspended sentence, that officer shall prepare a written 
statement of the evidence relied on and the reasons for vacating the 
suspended sentence.
      (7) Execution. Any unexecuted part of a suspended sentence ordered 
vacated under this subsection shall be ordered executed.''
w. R.C.M. 1201(b)(3)(A) is amended to read as follows:
        ``(A) In general. Notwithstanding R.C.M. 1209, the Judge 
Advocate General may, sua sponte or upon application of the accused or a 
person with authority to act for the accused, vacate or modify, in whole 
or in part, the findings, sentence, or both of a court-martial that has 
been finally reviewed, but has not been reviewed either by a Court of 
Criminal Appeals or by the Judge Advocate General under subsection 
(b)(1) of this rule, on the ground of newly discovered evidence, fraud 
on the court-martial, lack of jurisdiction over the accused or the 
offense, error prejudicial to the substantial rights of the accused, or 
the appropriateness of the sentence.''
x. R.C.M. 1203(c)(1) is amended to read as follows:
      ``(1) Forwarding by the Judge Advocate General to the Court of 
Appeals for the Armed Forces. The Judge Advocate General may forward the 
decision of the Court of Criminal Appeals to the Court of Appeals for 
the Armed Forces for review with respect to any matter of law. In such a 
case, the Judge Advocate General shall cause a copy of the decision of 
the Court of Criminal Appeals and the order forwarding the case to be 
served on the accused and on appellate defense counsel. While a review 
of a forwarded case is pending, the Secretary concerned may defer 
further service of a sentence to confinement that has been ordered 
executed in such a case.''
y. R.C.M. 1210(a) is amended by adding at the end thereof the following 
sentence:

``A petition for a new trial of the facts may not be submitted on the 
basis of newly discovered evidence when the petitioner was found guilty 
of the relevant offense pursuant to a guilty plea.''

    Sec. 2. Part III of the Manual for Courts-Martial, United States, is 
amended as follows:
a. M.R.E. 412 is amended to read as follows:
``Rule 412. Nonconsensual sexual offenses; relevance of victim's 
behavior or sexual predisposition
    (a) Evidence generally inadmissible. The following evidence is not 
admissible in any proceeding involving alleged sexual misconduct except 
as provided in subdivisions (b) and (c) of this rule:
      (1) Evidence offered to prove that any alleged victim engaged in 
other sexual behavior; and
      (2) Evidence offered to prove any alleged victim's sexual 
predisposition.
    (b) Exceptions.
      (1) In a proceeding, the following evidence is admissible, if 
otherwise admissible under these rules:
        (A) Evidence of specific instances of sexual behavior by the 
alleged victim offered to prove that a person other than the accused was 
the source of semen, injury, or other physical evidence;
        (B) Evidence of specific instances of sexual behavior by the 
alleged victim with respect to the person accused of the sexual 
misconduct offered by the accused to prove consent or by the 
prosecution; and
        (C) Evidence the exclusion of which would violate the 
constitutional rights of the accused.
    (c) Procedure to determine admissibility.
      (1) A party intending to offer evidence under subdivision (b) of 
this rule must:
        (A) file a written motion at least 5 days prior to entry of 
pleas specifically describing the evidence and stating the purpose for 
which it is offered unless the military judge, for good cause shown, 
requires a different time for filing or permits filing during trial; and
        (B) serve the motion on the opposing party and the military 
judge and notify the alleged victim or, when appropriate, the alleged 
victim's guardian or representative.
      (2) Before admitting evidence under this rule, the military judge 
must conduct a

[[Page 985]]

hearing, which shall be closed. At this hearing, the parties may call 
witnesses, including the alleged victim, and offer relevant evidence. 
The victim must be afforded a reasonable opportunity to attend and be 
heard. In a case before a court-martial composed of a military judge and 
members, the military judge shall conduct the hearing outside the 
presence of the members pursuant to Article 39(a). The motion, related 
papers, and the record of the hearing must be sealed and remain under 
seal unless the court orders otherwise.
      (3) If the military judge determines on the basis of the hearing 
described in paragraph (2) of this subdivision that the evidence that 
the accused seeks to offer is relevant and that the probative value of 
such evidence outweighs the danger of unfair prejudice, such evidence 
shall be admissible in the trial to the extent an order made by the 
military judge specifies evidence that may be offered and areas with 
respect to which the alleged victim may be examined or cross-examined.
    (d) For purposes of this rule, the term ``sexual behavior'' includes 
any sexual behavior not encompassed by the alleged offense. The term 
``sexual predisposition'' refers to an alleged victim's mode of dress, 
speech, or lifestyle that does not directly refer to sexual activities 
or thoughts but that may have a sexual connotation for the factfinder.
    (e) A ``nonconsensual sexual offense'' is a sexual offense in which 
consent by the victim is an affirmative defense or in which the lack of 
consent is an element of the offense. This term includes rape, forcible 
sodomy, assault with intent to commit rape or forcible sodomy, indecent 
assault, and attempts to commit such offenses.''
b. M.R.E. 413 is added to read as follows:
``Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
    (a) In a court-martial in which the accused is charged with an 
offense of sexual assault, evidence of the accused's commission of one 
or more offenses of sexual assault is admissible and may be considered 
for its bearing on any matter to which it is relevant.
    (b) In a court-martial in which the Government intends to offer 
evidence under this rule, the Government shall disclose the evidence to 
the accused, including statements of witnesses or a summary of the 
substance of any testimony that is expected to be offered, at least 5 
days before the scheduled date of trial, or at such later time as the 
military judge may allow for good cause.
    (c) This rule shall not be construed to limit the admission or 
consideration of evidence under any other rule.
    (d) For purposes of this rule, ``offense of sexual assault'' means 
an offense punishable under the Uniform Code of Military Justice, or a 
crime under Federal law or the law of a State that involved--
      (1) any sexual act or sexual contact, without consent, proscribed 
by the Uniform Code of Military Justice, Federal law, or the law of a 
State;
      (2) contact, without consent of the victim, between any part of 
the accused's body, or an object held or controlled by the accused, and 
the genitals or anus of another person;
      (3) contact, without consent of the victim, between the genitals 
or anus of the accused and any part of another person's body;
      (4) deriving sexual pleasure or gratification from the infliction 
of death, bodily injury, or physical pain on another person; or
      (5) an attempt or conspiracy to engage in conduct described in 
paragraphs (1) through (4).
    (e) For purposes of this rule, the term ``sexual act'' means:
      (1) contact between the penis and the vulva or the penis and the 
anus, and for purposes of this rule, contact occurs upon penetration, 
however slight, of the penis into the vulva or anus;
      (2) contact between the mouth and the penis, the mouth and the 
vulva, or the mouth and the anus;
      (3) the penetration, however slight, of the anal or genital 
opening of another by a hand or finger or by any object, with an intent 
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual 
desire of any person; or
      (4) the intentional touching, not through the clothing, of the 
genitalia of another person who has not attained the age of 16 years, 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.

[[Page 986]]

    (f) For purposes of this rule, the term ``sexual contact'' means the 
intentional touching, either directly or through the clothing, of the 
genitalia, anus, groin, breast, inner thigh, or buttocks of any person 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (g) For purposes of this rule, the term ``State'' includes a State 
of the United States, the District of Columbia, Puerto Rico, Guam, the 
Virgin Islands, and any other territory or possession of the United 
States.''
c. M.R.E. 414 is added to read as follows:
``Rule 414. Evidence of Similar Crimes in Child Molestation Cases
    (a) In a court-martial in which the accused is charged with an 
offense of child molestation, evidence of the accused's commission of 
one or more offenses of child molestation is admissible and may be 
considered for its bearing on any matter to which it is relevant.
    (b) In a court-martial in which the Government intends to offer 
evidence under this rule, the Government shall disclose the evidence to 
the accused, including statements of witnesses or a summary of the 
substance of any testimony that is expected to be offered, at least 5 
days before the scheduled date of trial or at such later time as the 
military judge may allow for good cause.
    (c) This rule shall not be construed to limit the admission or 
consideration of evidence under any other rule.
    (d) For purposes of this rule, ``child'' means a person below the 
age of sixteen, and ``offense of child molestation'' means an offense 
punishable under the Uniform Code of Military Justice, or a crime under 
Federal law or the law of a State that involved--
      (1) any sexual act or sexual contact with a child proscribed by 
the Uniform Code of Military Justice, Federal law, or the law of a 
State;
      (2) any sexually explicit conduct with children proscribed by the 
Uniform Code of Military Justice, Federal law, or the law of a State;
      (3) contact between any part of the accused's body, or an object 
controlled or held by the accused, and the genitals or anus of a child;
      (4) contact between the genitals or anus of the accused and any 
part of the body of a child;
      (5) deriving sexual pleasure or gratification from the infliction 
of death, bodily injury, or physical pain on a child; or
      (6) an attempt or conspiracy to engage in conduct described in 
paragraphs (1) through (5) of this subdivision.
    (e) For purposes of this rule, the term ``sexual act'' means:
      (1) contact between the penis and the vulva or the penis and the 
anus, and for purposes of this rule contact occurs upon penetration, 
however slight, of the penis into the vulva or anus;
      (2) contact between the mouth and the penis, the mouth and the 
vulva, or the mouth and the anus;
      (3) the penetration, however slight, of the anal or genital 
opening of another by a hand or finger or by any object, with an intent 
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual 
desire of any person; or
      (4) the intentional touching, not through the clothing, of the 
genitalia of another person who has not attained the age of 16 years, 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (f) For purposes of this rule, the term ``sexual contact'' means the 
intentional touching, either directly or through the clothing, of the 
genitalia, anus, groin, breast, inner thigh, or buttocks of any person 
with an intent to abuse, humiliate, harass, degrade, or arouse or 
gratify the sexual desire of any person.
    (g) For purpose of this rule, the term ``sexually explicit conduct'' 
means actual or simulated:
        (1) sexual intercourse, including genital-genital, oral-genital, 
anal-genital, or oral-anal, whether between persons of the same or 
opposite sex;
        (2) bestiality;
        (3) masturbation;
        (4) sadistic or masochistic abuse; or
        (5) lascivious exhibition of the genitals or pubic area of any 
person.
    (h) For purposes of this rule, the term ``State'' includes a State 
of the United States, the District of Columbia, Puerto Rico,

[[Page 987]]

Guam, the Virgin Islands, and any other territory or possession of the 
United States.''
d. M.R.E. 1102 is amended to read as follows:
    ``Amendments to the Federal Rules of Evidence shall apply to the 
Military Rules of Evidence 18 months after the effective date of such 
amendments, unless action to the contrary is taken by the President.''
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
a. Paragraph 19 is amended to read as follows:
``19. Article 95--Resistance, flight, breach of arrest, and escape
    a. Text.
    ``Any person subject to this chapter who--
      (1) resists apprehension;
      (2) flees from apprehension;
      (3) breaks arrest; or
      (4) escapes from custody or confinement shall be punished as a 
court-martial may direct.''
    b. Elements.
      (1) Resisting apprehension.
        (a) That a certain person attempted to apprehend the accused;
        (b) That said person was authorized to apprehend the accused; 
and
        (c) That the accused actively resisted the apprehension.
      (2) Flight from apprehension.
        (a) That a certain person attempted to apprehend the accused;
        (b) That said person was authorized to apprehend the accused; 
and
        (c) That the accused fled from the apprehension.
      (3) Breaking arrest.
        (a) That a certain person ordered the accused into arrest;
        (b) That said person was authorized to order the accused into 
arrest; and
        (c) That the accused went beyond the limits of arrest before 
being released from that arrest by proper authority.
      (4) Escape from custody.
        (a) That a certain person apprehended the accused;
        (b) That said person was authorized to apprehend the accused; 
and
        (c) That the accused freed himself or herself from custody 
before being released by proper authority.
      (5) Escape from confinement.
        (a) That a certain person ordered the accused into confinement;
        (b) That said person was authorized to order the accused into 
confinement; and
        (c) That the accused freed himself or herself from confinement 
before being released by proper authority. [Note: If the escape was from 
post-trial confinement, add the following element]
        (d) That the confinement was the result of a court-martial 
conviction.
    c. Explanation.
      (1) Resisting apprehension.
        (a) Apprehension. Apprehension is the taking of a person into 
custody. See R.C.M. 302.
        (b) Authority to apprehend. See R.C.M. 302(b) concerning who may 
apprehend. Whether the status of a person authorized that person to 
apprehend the accused is a question of law to be decided by the military 
judge. Whether the person who attempted to make an apprehension had such 
a status is a question of fact to be decided by the factfinder.
        (c) Nature of the resistance. The resistance must be active, 
such as assaulting the person attempting to apprehend. Mere words of 
opposition, argument, or abuse, and attempts to escape from custody 
after the apprehension is complete, do not constitute the offense of 
resisting apprehension although they may constitute other offenses.
        (d) Mistake. It is a defense that the accused held a reasonable 
belief that the person attempting to apprehend did not have authority to 
do so. However, the accused's belief at the time that no basis existed 
for the apprehension is not a defense.
        (e) Illegal apprehension. A person may not be convicted of 
resisting apprehension if the attempted apprehension is illegal, but may 
be convicted of other offenses, such as assault, depending on all the 
circumstances. An attempted apprehension by a person authorized to 
apprehend is presumed to be legal in the absence of evidence to the 
contrary. Ordinarily the legality of an

[[Page 988]]

apprehension is a question of law to be decided by the military judge.
      (2) Flight from apprehension. The flight must be active, such as 
running or driving away.
      (3) Breaking arrest.
        (a) Arrest. There are two types of arrest: pretrial arrest under 
Article 9 (see R.C.M. 304), and arrest under Article 15 (see paragraph 
5c.(3), Part V, MCM). This article prohibits breaking any arrest.
        (b) Authority to order arrest. See R.C.M. 304(b) and paragraphs 
2 and 5b, Part V, MCM, concerning authority to order arrest.
        (c) Nature of restraint imposed by arrest. In arrest, the 
restraint is moral restraint imposed by orders fixing the limits of 
arrest.
        (d) Breaking. Breaking arrest is committed when the person in 
arrest infringes the limits set by orders. The reason for the 
infringement is immaterial. For example, innocence of the offense with 
respect to which an arrest may have been imposed is not a defense.
        (e) Illegal arrest. A person may not be convicted of breaking 
arrest if the arrest is illegal. An arrest ordered by one authorized to 
do so is presumed to be legal in the absence of some evidence to the 
contrary. Ordinarily, the legality of an arrest is a question of law to 
be decided by the military judge.
      (4) Escape from custody.
        (a) Custody. ``Custody'' is restraint of free locomotion imposed 
by lawful apprehension. The restraint may be physical or, once there has 
been a submission to apprehension or a forcible taking into custody, it 
may consist of control exercised in the presence of the prisoner by 
official acts or orders. Custody is temporary restraint intended to 
continue until other restraint (arrest, restriction, confinement) is 
imposed or the person is released.
        (b) Authority to apprehend. See subparagraph (1)(b) above.
        (c) Escape. For a discussion of escape, see subparagraph 
c(5)(c), below.
        (d) Illegal custody. A person may not be convicted of this 
offense if the custody was illegal. An apprehension effected by one 
authorized to apprehend is presumed to be lawful in the absence of 
evidence to the contrary. Ordinarily, the legality of an apprehension is 
a question of law to be decided by the military judge.
        (e) Correctional custody. See paragraph 70.
      (5) Escape from confinement.
        (a) Confinement. Confinement is physical restraint imposed under 
R.C.M. 305, 1101, or paragraph 5b, Part V, MCM. For purposes of the 
element of post-trial confinement (subparagraph b(5)(d), above) and 
increased punishment therefrom (subparagraph e(4), below), the 
confinement must have been imposed pursuant to an adjudged sentence of a 
court-martial, and not as a result of pretrial restraint or nonjudicial 
punishment.
        (b) Authority to order confinement. See R.C.M. 304(b), 1101, and 
paragraphs 2 and 5b, Part V, MCM, concerning who may order confinement.
        (c) Escape. An escape may be either with or without force or 
artifice, and either with or without the consent of the custodian. 
However, where a prisoner is released by one with apparent authority to 
do so, the prisoner may not be convicted of escape from confinement. See 
also paragraph 20c.(l)(b). Any completed casting off of the restraint of 
confinement, before release by proper authority, is an escape,

and lack of effectiveness of the restraint imposed is immaterial. An escape 
is not complete until the prisoner is momentarily free from the restraint. 
If the movement toward escape is opposed, or before it is completed, an 
immediate pursuit follows, there is no escape until opposition is overcome 
or pursuit is eluded.

        (d) Status when temporarily outside confinement facility. A 
prisoner who is temporarily escorted outside a confinement facility for 
a work detail or other reason by a guard, who has both the duty and 
means to prevent that prisoner from escaping, remains in confinement.
        (e) Legality of confinement. A person may not be convicted of 
escape from confinement if the confinement is illegal. Confinement 
ordered by one authorized to do so is presumed to be lawful in the 
absence of evidence to the contrary. Ordinarily, the legality of 
confinement is a question of law to be decided by the military judge.

[[Page 989]]

    d. Lesser included offenses.
      (1) Resisting apprehension. Article 128--assault; assault 
consummated by a battery
      (2) Breaking arrest.
        (a) Article 134--breaking restriction
        (b) Article 80--attempts
      (3) Escape from custody. Article 80--attempts
      (4) Escape from confinement. Article 80--attempts
    e. Maximum punishment.
      (1) Resisting apprehension. Bad-conduct discharge, forfeiture of 
all pay and allowances, and confinement for 1 year.
      (2) Flight from apprehension. Bad-conduct discharge, forfeiture of 
all pay and allowances, and confinement for 1 year.
      (3) Breaking arrest. Bad-conduct discharge, forfeiture of all pay 
and allowances, and confinement for 6 months.
      (4) Escape from custody, pretrial confinement, or confinement on 
bread and water or diminished rations imposed pursuant to Article 15. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 1 year.
      (5) Escape from post-trial confinement. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 5 years.
    f. Sample specifications.
      (1) Resisting apprehension.
      In that ____________ (personal jurisdiction data), did (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ______________, 19____, resist being apprehended by ________, (an 
armed force policeman) (________), a person authorized to apprehend the 
accused.
      (2) Flight from apprehension.
      In that ____________ (personal jurisdiction data), did (at/on 
board--location) (subject matter jurisdiction data, if required), on or 
about ____________ 19____, flee apprehension by ____________ (an armed 
force policeman) (____________), a person authorized to apprehend the 
accused.
      (3) Breaking arrest.
      In that ____________ (personal jurisdiction data), having been 
placed in arrest (in quarters) (in his/her company area) (____________) 
by a person authorized to order the accused into arrest, did, (at/on 
board--location) on or about ____________ 19____, break said arrest.
      (4) Escape from custody.
      In that ____________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____________ 19____, escape from the custody of ____________, a 
person authorized to apprehend the accused.
      (5) Escape from confinement.
      In that ____________ (personal jurisdiction data), having been 
placed in (post-trial) confinement in (place of confinement), by a 
person authorized to order said accused into confinement did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____________ 19____, escape from confinement.''
b. The following new paragraph is added after paragraph 97:

``97a. Article 134--(Parole, Violation of)
    a. Text. See paragraph 60.
    b. Elements.
      (1) That the accused was a prisoner as the result of a court-
martial conviction or other criminal proceeding;
      (2) That the accused was on parole;
      (3) That there were certain conditions of parole that the parolee 
was bound to obey;
      (4) That the accused violated the conditions of parole by doing an 
act or failing to do an act; and
      (5) 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) ``Prisoner'' refers only to those in confinement resulting 
from conviction at a court-martial or other criminal proceeding.
      (2) ``Parole'' is defined as ``word of honor.'' A prisoner on 
parole, or parolee, has agreed to adhere to a parole plan and conditions 
of parole. A ``parole plan'' is a written or oral agreement made by the 
prisoner prior to parole to do or refrain from doing certain acts or 
activities. A parole plan

may include a residence requirement stating where and with whom a parolee 
will live, and a requirement that the prisoner have an offer of guaranteed 
employment. ``Conditions of parole'' include the parole plan and other 
reasonable

[[Page 990]]

and appropriate conditions of parole, such as paying restitution, beginning 
or continuing treatment for alcohol or drug abuse, or paying a fine ordered 
executed as part of the prisoner's court-martial sentence. In return for 
giving his or her ``word of honor'' to abide by a parole plan and 
conditions of parole, the prisoner is granted parole.

    d. Lesser included offense. Article 80--attempts.
    e. Maximum punishment. Bad-conduct discharge, confinement for 6 
months, and forfeiture of two-thirds pay per month for 6 months.
    f. Sample specification.
    In that ____________ (personal jurisdiction data), a prisoner on 
parole, did, (at/on board--location), on or about __________, 19____, 
violate the conditions of his/her parole by ____________.''
c. Paragraph 45.a and b are amended to read as follows:
``45. Article 120--Rape and carnal knowledge
    a. Text.
    ``(a) Any person subject to this chapter who commits an act of 
sexual intercourse by force and without consent, is guilty of rape and 
shall be punished by death or such other punishment as a court-martial 
may direct.
    (b) Any person subject to this chapter who, under circumstances not 
amounting to rape, commits an act of sexual intercourse with a person--
      (1) who is not his or her spouse; and
      (2) who has not attained the age of sixteen years; is guilty of 
carnal knowledge and shall be punished as a court-martial may direct.
    (c) Penetration, however slight, is sufficient to complete either of 
these offenses.
    (d)(1) In a prosecution under subsection (b), it is an affirmative 
defense that--
        (A) the person with whom the accused committed the act of sexual 
intercourse had at the time of the alleged offense attained the age of 
twelve years; and
        (B) the accused reasonably believed that the person had at the 
time of the alleged offense attained the age of 16 years.
      (2) The accused has the burden of proving a defense under 
subparagraph (d)(1) by a preponderance of the evidence.''
    b. Elements.
      (1) Rape.
        (a) That the accused committed an act of sexual intercourse; and
        (b) That the act of sexual intercourse was done by force and 
without consent.
      (2) Carnal knowledge.
        (a) That the accused committed an act of sexual intercourse with 
a certain person;
        (b) That the person was not the accused's spouse; and
        (c) That at the time of the sexual intercourse the person was 
under 16 years of age.''
d. Paragraph 45c.(2) is amended to read as follows:
      ``(2) Carnal knowledge. ``Carnal knowledge'' is sexual intercourse 
under circumstances not amounting to rape, with a person who is not the 
accused's spouse and who has not attained the age of 16 years. Any 
penetration, however slight, is sufficient to complete the offense. It 
is a defense, however, which the accused must prove by a preponderance 
of the evidence, that at the time of the act of sexual intercourse, the 
person with whom the accused committed the act of sexual intercourse was 
at least 12 years of age, and that the accused reasonably believed that 
this same person was at least 16 years of age.''
e. Paragraph 54e.(1) is amended to read as follows:
      ``(1) Simple Assault.
        (A) Generally. Confinement for 3 months and forfeiture of two-
thirds pay per month for 3 months.
        (B) When committed with an unloaded firearm. Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 3 
years.''
    Sec. 4. These amendments shall take effect on May 27, 1998, subject 
to the following:
    (a) The amendments made to Military Rules of Evidence 412, 413, and 
414 shall apply only to courts-martial in which arraignment has been 
completed on or after June 26, 1998.
    (b) Nothing contained in these amendments shall be construed to make 
punishable any act done or omitted prior to June 26,

[[Page 991]]

1998, which was not punishable when done or omitted.
    (c) The amendment made to Part IV, para. 45c.(2), authorizing a 
mistake of fact defense as to age in carnal knowledge prosecutions is 
effective in all cases in which the accused was arraigned on the offense 
of carnal knowledge, or for a greater offense that is later reduced to 
the lesser included offense of carnal knowledge, on or after February 
10, 1996.
    (d) Nothing in these amendments shall be construed to invalidate any 
nonjudicial punishment proceeding, restraint, investigation, referral of 
charges, trial in which arraignment occurred, or other action begun 
prior to May 27, 1998, and any such nonjudicial punishment proceeding, 
restraint, investigation, referral of charges, trial or other action may 
proceed in the same manner and with the same effect as if these 
amendments had not been prescribed.
                                            William J. Clinton
The White House,
May 27, 1998.

[Filed with the Office of the Federal Register, 8:45 a.m., June 1, 1998]

Note: This Executive order was released by the Office of the Press 
Secretary on May 28, and it will be published in the Federal Register on 
June 2.