[Weekly Compilation of Presidential Documents Volume 35, Number 40 (Monday, October 11, 1999)]
[Pages 1948-1953]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13140--1999 Amendments to the Manual for Courts-Martial, 
United States

October 6, 1999

    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 12473, as amended by 
Executive Order 12484, Executive Order 12550, Executive Order 12586, 
Executive Order 12708, Executive Order 12767, Executive Order 12888, 
Executive Order 12936, Executive Order 12960, and Executive Order 13086, 
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. 502(c) is amended to read as follows:
      ``(c) Qualifications of military judge. A military judge shall be 
      a commissioned officer of the armed forces who is a member of the 
      bar of a Federal court or a member of the bar of the highest court 
      of a State and who is certified to be qualified for duty as a 
      military judge by the Judge Advocate General of the armed force of 
      which such military judge is a member. In addition, the military 
      judge of a general court-martial shall be designated for such 
      duties by the Judge Advocate General or the Judge Advocate 
      General's designee, certified to be qualified for duty as a 
      military judge of a general court-martial, and assigned and 
      directly responsible to the Judge Advocate General or the Judge 
      Advocate General's designee. The Secretary concerned may prescribe 
      additional qualifications for military judges in special courts-
      martial. As used in this subsection ``military judge'' does not 
      include the president of a special court-martial without a 
      military judge.''
    b. R.C.M. 804 is amended by redesignating the current subsection (c) 
as subsection (d) and inserting after subsection (b) the following new 
subsection (c):
      ``(c) Voluntary absence for limited purpose of child testimony.
        (1) Election by accused. Following a determination by the 
      military judge that remote live testimony of a child is 
      appropriate pursuant to Mil. R. Evid. 611(d)(3), the accused may 
      elect to voluntarily absent himself from the courtroom in order to 
      preclude the use of procedures described in R.C.M. 914A.
        (2) Procedure. The accused's absence will be conditional upon 
      his being able to view the witness' testimony from a remote 
      location. Normally, a two-way closed circuit television system 
      will be used to transmit the child's testimony from the courtroom 
      to the accused's location. A one-way closed circuit television 
      system may be used if deemed necessary by the military judge. The 
      accused will also be provided private, contemporaneous 
      communication with his counsel. The procedures described herein 
      shall be employed unless the accused has made a knowing and 
      affirmative waiver of these procedures.
        (3) Effect on accused's rights generally. An election by the 
      accused to be absent pursuant to subsection (c)(1) shall not 
      otherwise affect the accused's right to be present at the 
      remainder of the trial in accordance with this rule.''
    c. The following new rule is inserted after R.C.M. 914:
      ``Rule 914A. Use of remote live testimony of a child
      (a) General procedures. A child shall be allowed to testify out of 
      the presence of the accused after the military judge has 
      determined that the requirements of Mil. R. Evid. 611(d)(3) have 
      been satisfied. The procedure used to take such testimony will be 
      determined by the military judge based upon the exigencies of the 
      situation. However, such testimony should normally be taken via a 
      two-way closed circuit television system.

[[Page 1949]]

      At a minimum, the following procedures shall be observed:
        (1) The witness shall testify from a remote location outside the 
      courtroom;
        (2) Attendance at the remote location shall be limited to the 
      child, counsel for each side (not including an accused pro se), 
      equipment operators, and other persons, such as an attendant for 
      the child, whose presence is deemed necessary by the military 
      judge;
        (3) Sufficient monitors shall be placed in the courtroom to 
      allow viewing and hearing of the testimony by the military judge, 
      the accused, the members, the court reporter and the public;
        (4) The voice of the military judge shall be transmitted into 
      the remote location to allow control of the proceedings; and
        (5) The accused shall be permitted private, contemporaneous 
      communication with his counsel.
      (b) Prohibitions. The procedures described above shall not be used 
      where the accused elects to absent himself from the courtroom 
      pursuant to R.C.M. 804(c).''
    d. R.C.M. 1001(b)(4) is amended by inserting the following sentences 
between the first and second sentences:
      ``Evidence is aggravation includes, but is not limited to, 
      evidence of financial, social, psychological, and medical impact 
      on or cost to any person or entity who was the victim of an 
      offense committed by the accused and evidence of significant 
      adverse impact on the mission, discipline, or efficiency of the 
      command directly and immediately resulting from the accused's 
      offense. In addition, evidence in aggravation may include evidence 
      that the accused intentionally selected any victim or any property 
      as the object of the offense because of the actual or perceived 
      race, color, religion, national origin, ethnicity, gender, 
      disability, or sexual orientation of any person.''
    e. R.C.M. 1003(b) is amended--
        (1) by striking subsection (4) and
        (2) by redesignating subsections (5), (6), (7), (8), (9), (10), 
      and (11) as subsections (4), (5), (6), (7), (8), (9), and (10), 
      respectively.
    f. R.C.M. 1004(c)(7) is amended by adding at end the following new 
subsection:
      ``(K) The victim of the murder was under 15 years of age.''
    Sec. 2. Part III of the Manual for Courts-Martial, United States, is 
amended as follows:
    a. Insert the following new rule after Mil. R. Evid. 512:
      ``Rule 513. Psychotherapist-patient privilege
      (a) General rule of privilege. A patient has a privilege to refuse 
      to disclose and to prevent any other person from disclosing a 
      confidential communication made between the patient and a 
      psychotherapist or an assistant to the psychotherapist, in a case 
      arising under the UCMJ, if such communication was made for the 
      purpose of facilitating diagnosis or treatment of the patient's 
      mental or emotional condition.
      (b) Definitions. As used in this rule of evidence:
        (1) A ``patient'' is a person who consults with or is examined 
      or interviewed by a psychotherapist for purposes of advice, 
      diagnosis, or treatment of a mental or emotional condition.
        (2) A ``psychotherapist'' is a psychiatrist, clinical 
      psychologist, or clinical social worker who is licensed in any 
      state, territory, possession, the District of Columbia or Puerto 
      Rico to perform professional services as such, or who holds 
      credentials to provide such services from any military health care 
      facility, or is a person reasonably believed by the patient to 
      have such license or credentials.
        (3) An ``assistant to a psychotherapist'' is a person directed 
      by or assigned to assist a psychotherapist in providing 
      professional services, or is reasonably believed by the patient to 
      be such.
        (4) A communication is ``confidential'' if not intended to be 
      disclosed to third persons other than those to whom disclosure is 
      in furtherance of the rendition of professional services to the 
      patient or those reasonably necessary for such transmission of the 
      communication.

[[Page 1950]]

        (5) ``Evidence of a patient's records or communications'' is 
      testimony of a psychotherapist, or assistant to the same, or 
      patient records that pertain to communications by a patient to a 
      psychotherapist, or assistant to the same for the purposes of 
      diagnosis or treatment of the patient's mental or emotional 
      condition.
      (c) Who may claim the privilege. The privilege may be claimed by 
      the patient or the guardian or conservator of the patient. A 
      person who may claim the privilege may authorize trial counsel or 
      defense counsel to claim the privilege on his or her behalf. The 
      psychotherapist or assistant to the psychotherapist who received 
      the communication may claim the privilege on behalf of the 
      patient. The authority of such a psychotherapist, assistant, 
      guardian, or conservator to so assert the privilege is presumed in 
      the absence of evidence to the contrary.
      (d) Exceptions. There is no privilege under this rule:
        (1) when the patient is dead;
        (2) when the communication is evidence of spouse abuse, child 
      abuse, or neglect or in a proceeding in which one spouse is 
      charged with a crime against the person of the other spouse or a 
      child of either spouse;
        (3) when federal law, state law, or service regulation imposes a 
      duty to report information contained in a communication;
        (4) when a psychotherapist or assistant to a psychotherapist 
      believes that a patient's mental or emotional condition makes the 
      patient a danger to any person, including the patient;
        (5) if the communication clearly contemplated the future 
      commission of a fraud or crime or if the services of the 
      psychotherapist are sought or obtained to enable or aid anyone to 
      commit or plan to commit what the patient knew or reasonably 
      should have known to be a crime or fraud;
        (6) when necessary to ensure the safety and security of military 
      personnel, military dependents, military property, classified 
      information, or the accomplishment of a military mission;
        (7) when an accused offers statements or other evidence 
      concerning his mental condition in defense, extenuation, or 
      mitigation, under circumstances not covered by R.C.M. 706 or Mil. 
      R. Evid. 302. In such situations, the military judge may, upon 
      motion, order disclosure of any statement made by the accused to a 
      psychotherapist as may be necessary in the interests of justice; 
      or
        (8) when admission or disclosure of a communication is 
      constitutionally required.
      (e) Procedure to determine admissibility of patient records or 
      communications.
        (1) In any case in which the production or admission of records 
      or communications of a patient other than the accused is a matter 
      in dispute, a party may seek an interlocutory ruling by the 
      military judge. In order to obtain such a ruling, the party shall:
        (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 sought or offered, or objected to, 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, the military judge 
      and, if practical, notify the patient or the patient's guardian, 
      conservator, or representative that the motion has been filed and 
      that the patient has an opportunity to be heard as set forth in 
      subparagraph (e)(2).
        (2) Before ordering the production or admission of evidence of a 
      patient's records or communication, the military judge shall 
      conduct a hearing. Upon the motion of counsel for either party and 
      upon good cause shown, the military judge may order the hearing 
      closed. At the hearing, the parties may call witnesses, including 
      the patient, and offer other relevant evidence. The patient shall 
      be afforded a reasonable opportunity to attend the hearing and be

[[Page 1951]]

      heard at the patient's own expense unless the patient has been 
      otherwise subpoenaed or ordered to appear at the hearing. However, 
      the proceedings shall not be unduly delayed for this purpose. 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.
        (3) The military judge shall examine the evidence or a proffer 
      thereof in camera, if such examination is necessary to rule on the 
      motion.
        (4) To prevent unnecessary disclosure of evidence of a patient's 
      records or communications, the military judge may issue protective 
      orders or may admit only portions of the evidence.
        (5) The motion, related papers, and the record of the hearing 
      shall be sealed and shall remain under seal unless the military 
      judge or an appellate court orders otherwise.''
    b. Mil. R. Evid. 611 is amended by inserting the following new 
subsection at the end:
        (d) Remote live testimony of a child.
        (1) In a case involving abuse of a child or domestic violence, 
      the military judge shall, subject to the requirements of 
      subsection (3) of this rule, allow a child victim or witness to 
      testify from an area outside the courtroom as prescribed in R.C.M. 
      914A.
        (2) The term ``child'' means a person who is under the age of 16 
      at the time of his or her testimony. The term ``abuse of a child'' 
      means the physical or mental injury, sexual abuse or exploitation, 
      or negligent treatment of a child. The term ``exploitation'' means 
      child pornography or child prostitution. The term ``negligent 
      treatment'' means the failure to provide, for reasons other than 
      poverty, adequate food, clothing, shelter, or medical care so as 
      to endanger seriously the physical health of the child. The term 
      ``domestic violence'' means an offense that has as an element the 
      use, attempted use, or threatened use of physical force against a 
      person and is committed by a current or former spouse, parent, or 
      guardian of the victim; by a person with whom the victim shares a 
      child in common; by a person who is cohabiting with or has 
      cohabited with the victim as a spouse, parent, or guardian; or by 
      a person similarly situated to a spouse, parent, or guardian of 
      the victim.
        (3) Remote live testimony will be used only where the military 
      judge makes a finding on the record that a child is unable to 
      testify in open court in the presence of the accused, for any of 
      the following reasons:
        (A) The child is unable to testify because of fear;
        (B) There is substantial likelihood, established by expert 
      testimony, that the child would suffer emotional trauma from 
      testifying;
        (C) The child suffers from a mental or other infirmity; or
        (D) Conduct by an accused or defense counsel causes the child to 
      be unable to continue testifying.
        (4) Remote live testimony of a child shall not be utilized where 
      the accused elects to absent himself from the courtroom in 
      accordance with R.C.M. 804(c).''
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    a. Insert the following new paragraph after paragraph 100:
      100a. Article 134--(Reckless endanger-
      ment)
      a. Text. See paragraph 60.
      b. Elements.
        (1) That the accused did engage in conduct;
        (2) That the conduct was wrongful and reckless or wanton;
        (3) That the conduct was likely to produce death or grievous 
      bodily harm to another person; and
        (4) 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 is intended to prohibit and 
      therefore deter

[[Page 1952]]

      reckless or wanton conduct that wrongfully creates a substantial 
      risk of death or serious injury to others.
        (2) Wrongfulness. Conduct is wrongful when it is without legal 
      justification or excuse.
        (3) Recklessness. ``Reckless'' conduct is conduct that exhibits 
      a culpable disregard of foreseeable consequences to others from 
      the act or omission involved. The accused need not intentionally 
      cause a resulting harm or know that his conduct is substantially 
      certain to cause that result. The ultimate question is whether, 
      under all the circumstances, the accused's conduct was of that 
      heedless nature that made it actually or imminently dangerous to 
      the rights or safety of others.
        (4) Wantonness. ``Wanton'' includes ``reckless,'' but may 
      connote willfulness, or a disregard of probable consequences, and 
      thus describe a more aggravated offense.
        (5) Likely to produce. When the natural or probable consequence 
      of particular conduct would be death or grievous bodily harm, it 
      may be inferred that the conduct is ``likely'' to produce that 
      result. See paragraph 54c(4)(a)(ii).
        (6) Grievous bodily harm. ``Grievous bodily harm'' means serious 
      bodily injury. It does not include minor injuries, such as a black 
      eye or a bloody nose, but does include fractured or dislocated 
      bones, deep cuts, torn members of the body, serious damage to 
      internal organs, and other serious bodily injuries.
        (7) Death or injury not required. It is not necessary that death 
      or grievous bodily harm be actually inflicted to prove reckless 
      endangerment.
      d. Lesser included offenses. None.
      e. Maximum punishment. Bad-conduct discharge, forfeiture of all 
      pay and allowances, and confinement for 1 year.
      f. Sample specification. In that ________ (personal jurisdiction 
      data), did, (at/on board--location)(subject-matter jurisdiction 
      data, if required), on or about __________ 19__, wrongfully and 
      recklessly engage in conduct, to wit: (he/she)(describe conduct) 
      and that the accused's conduct was likely to cause death or 
      serious bodily harm to ________.''
    Sec. 4. These amendments shall take effect on 1 November 1999, 
subject to the following:
    a. The amendments made to Military Rule of Evidence 611, shall apply 
only in cases in which arraignment has been completed on or after 1 
November 1999.
    b. Military Rule of Evidence 513 shall only apply to communications 
made after 1 November 1999.
    c. The amendments made to Rules for Courts-Martial 502, 804, and 
914A shall only apply in cases in which arraignment has been completed 
or on after 1 November 1999.
    d. The amendments made to Rules for Courts-Martial 1001(b)(4) and 
1004(c)(7) shall only apply to offenses committed after 1 November 1999.
    e. Nothing in these amendments shall be construed to make punishable 
any act done or omitted prior to 1 November 1999, which was not 
punishable when done or omitted.
    f. The maximum punishment for an offense committed prior to 1 
November 1999, shall not exceed the applicable maximum in effect at the 
time of the commission of such offense.
    g. 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 1 November 1999, and any such nonjudicial punishment, 
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,
October 6, 1999.

[Filed with the Office of the Federal Register, 8:45 a.m., October 8, 
1999]

Note: This Executive order was released by the Office of the Press 
Secretary on October 7, and it will be published in the Federal Register 
on October 12.

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