Manual for Courts-Martial; Proposed Amendments, 1877-1881 [05-457]
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[FR Doc. 05–526 Filed 1–10–05; 8:45 am]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed
Amendments
Joint Service Committee on
Military Justice (JSC).
ACTION: Notice of summary of public
comment received regarding proposed
amendments to the Manual for CourtsMartial, United States (2002 ed.).
AGENCY:
SUMMARY: The JSC is forwarding final
proposed amendments to the Manual for
Courts-Martial, United States (2002 ed.)
(MCM) to the Department of Defense.
The proposed changes, resulting from
the JSC’s 2004 annual review of the
MCM, concern the rules of procedure
applicable in trials by courts-martial.
The proposed changes have not been
coordinated within the Department of
Defense under DoD Directive 5500.1,
‘‘Preparation and Processing of
Legislation, Executive Orders,
Proclamations, and Reports and
Comments Thereon,’’ May 21, 1964, and
do not constitute the official position of
the Department of Defense, the Military
Departments, or any other government
agency.
This notice is provided in accordance
with DoD Directive 5500.17, ‘‘Role and
Responsibilities of the Joint Service
Committee (JSC) on Military Justice,’’
May 3, 2003. This notice is intended
only to improve the internal
management of the Federal Government.
It is not intended to create any right or
benefit, substantive or procedural,
enforceable at law by any party against
the United States, its agencies, its
officers, or any person.
In accordance with paragraph III.B.4
of the Internal Organization and
Operating Procedures of the JSC, the
committee also invites members of the
public to suggest changes to the Manual
for Courts-Martial in accordance with
the described format.
ADDRESSES: Comments and materials
received from the public are available
for inspection or copying at the Office
of the Judge Advocate General (Code
20), 716 Sicard St., SE., Suite 1000,
Washington, DC 20374–5047, between 8
a.m. and 3:30 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander James Carsten,
Executive Secretary, Joint Service
Committee on Military Justice, Office of
the Judge Advocate General, 716 Sicard
St., SE., Suite 1000, Washington, DC
20374–5047, (202) 685–7298, (202) 685–
7687 fax.
SUPPLEMENTARY INFORMATION:
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Background
On 15 September 2004, the JSC
published a Notice of Proposed
Amendments to the Manual for CourtsMartial and a Notice of Public Meeting
to receive comment on its 2004 draft
annual review of the Manual for CourtsMartial. On 15 October 2004, the public
meeting was held. Five individuals
attended the public meeting and
provided oral comment. The JSC
received sixteen letters commenting on
the proposed amendments.
Purpose
The proposed changes concern the
rules of procedure applicable in trials by
courts-martial. More specifically, the
proposed changes: Amend Rules of
Court-Martial and other provisions of
the Manual to allow for remote
testimony for certain Article 39(a),
UCMJ sessions and presentencing
witnesses; add the Manual for CourtsMartial provisions for newly enacted
Article 119a, Death or Injury to an
Unborn Child, enacted on 1 April 2004
in the Unborn Victims of Violence Act
of 2004; and the addition of a new
Article 134 offense of Patronizing a
Prostitute.
Discussion of Comments and Changes
In response to the request for public
comment the JSC received oral and
written comments. The JSC considered
the public comments and, after making
some minor amendments, is satisfied
that the proposed amendments are
appropriate to implement without
additional modification. The JSC will
forward the public comments and the
proposed amendments to the
Department of Defense.
Summaries of the oral and written
comments regarding the proposed
substantive changes follow:
a. In two submissions, one
commentator objected to the remote
testimony amendments to the Rules of
Courts-Martial. The commentator
objected, in part, because the
commentator perceived that no rationale
was provided for the proposed
amendments. The commentator also
considered the proposed amendments to
be deleterious to the military justice
system.
b. Three comments were received
regarding the JSC proposed Manual
provisions for the new Article 119a,
Death or Injury to an Unborn Child.
Most of the comments highlighted the
fact that the statutory language may
create some practical difficulties when
an actual prosecution takes place under
this provision. Other comments
suggested creating a definition of
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‘‘woman’’ for this specific article and
adding certain language to the draft
elements to make them more consistent
with current practices. The JSC agreed
and made amendments consistent with
the comment on a definition of the term
‘‘woman’’ and to add Manual-consistent
language to the draft specifications. One
comment indicated that the JSC has
proposed MCM provisions for this new
criminal statute which are not
completely consistent with the
legislative language and intent.
c. The majority of comments received
addressed the ‘‘Patronizing a Prostitute’’
offense which the JSC is recommending
be added to paragraph 97 of Article 134,
UCMJ. Those opposed to the JSC
recommendation questioned the need
for such an offense, for a variety of
reasons including the impact on morale,
the negative effects on the health of the
service members, and the potential for
this offense to be exploited by
adversaries of the United States. In
addition, some expressed concern
regarding the manner in which the
offense might ultimately be enforced.
Those supporting the JSC
recommendation believed it was both
appropriate and long overdue. Neither
those opposed to the JSC
recommendation, nor those in support,
provided specific technical amendments
to the recommendation. One comment
did indicate that no rationale was
provided for the proposed amendments
and thus it was difficult to ascertain
why the amendments were being
proposed.
Proposed Amendments After
Consideration of Public Comment
Received
The proposed amendments to the
Manual for Courts-Martial are as
follows:
Amend RCM 703(b)(1) by inserting
the following three sentences after the
last sentence in RCM 703(b)(1):
With the consent of both the accused
and Government, the military judge may
authorize any witness to testify via
remote means. Over a party’s objection,
the military judge may authorize any
witness to testify on interlocutory
questions via remote means or similar
technology if the practical difficulties of
producing the witness outweigh the
significance of the witness’ personal
appearance. Factors to be considered
include, but are not limited to the costs
of producing the witness, the timing of
the request for production of the
witness, the potential delay in the
interlocutory proceeding that may be
caused by the production of the witness,
the willingness of the witness to testify
in person, and the likelihood of
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significant interference with military
operational deployment, mission
accomplishment, or essential training,
and for child witnesses the traumatic
effect of providing in-court testimony.
Add a new paragraph to the end of the
Discussion which follows R.C.M. (b)(1)
that reads:
The procedures for receiving
testimony via remote means and the
definition thereof are contained in
R.C.M. 914B.
Amend the Analysis accompanying
R.C.M. 703(b) by inserting the following
paragraph:
‘‘200l Amendment: Subsection (b)(1)
was amended to allow, under certain
circumstances, the utilization of various
types of remote testimony in lieu of the
personal appearance of the witness.’’
Amend the discussion to R.C.M. 802
by amending the last sentence of the
discussion to read:
A conference may be conducted by
remote means or similar technology
consistent with the definition in R.C.M.
914B.
Amend R.C.M. 804(c)(2) to read:
(2) Procedure. The accused’s absence
will be conditional upon his being able
to view the witness’ testimony from a
remote location. Normally, transmission
of the testimony will include a system
which will transmit the accused’s image
and voice into the courtroom from a
remote location as well as transmission
of the child’s testimony from the
courtroom to the accused’s location. A
one-way transmission may be used if
deemed necessary by the military judge.
The accused will also be provided
private, contemporaneous
communication with his counsel. The
procedures described herein shall be
employed unless the accused has made
a knowing and affirmative waiver of
these procedures.
Amend the Analysis accompanying
R.C.M. 804(c) by inserting the following
paragraph:
‘‘200l Amendment: The specific
terminology of the manner in which
remote live testimony may be
transmitted was deleted to allow for
technological advances in the methods
used to transmit audio and visual
information.’’
Amend RCM 914A by deleting the
third sentence of paragraph (a), which
read, ‘‘However, such testimony should
normally be taken via a two-way closed
circuit television system’’ leaving the
remaining paragraph which reads:
(a) General procedures. A child shall
be allowed to testify out of the presence
of the accused after the military judge
has determined that the requirements of
Mil. R. Evid. 611(d)(3) have been
satisfied. The procedure used to take
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such testimony will be determined by
the military judge based upon the
exigencies of the situation. At a
minimum, the following procedures
shall be observed:
Amend RCM 914A by re-lettering
current paragraph ‘‘(b)’’ to paragraph
‘‘(c)’’ and inserting new paragraph (b)
which will read:
(b) Definition. As used in this rule,
‘‘remote live testimony’’ includes, but is
not limited to, testimony by videoteleconference, closed circuit television,
or similar techology.
Add a discussion section that reads:
For purposes of this rule, unlike
R.C.M. 914B, remote means or similar
technology does not include receiving
testimony by telephone where the
parties cannot see and hear each other.
Amend the Analysis accompanying
R.C.M. 914A by inserting the following
paragraph:
‘‘200l Amendment: The rule was
amended to allow for technological
advances in the methods used to
transmit audio and visual information.’’
Add new Rule R.C.M. 914B, which
will read:
Rule 914B. Use of Remote Testimony
(a) General procedure.The military
judge shall determine the procedures
used to take testimony via remote
means. At a minimum, all parties shall
be able to hear each other, those in
attendance at the remote site shall be
identified, and the accused shall be
permitted private, contemporaneous
communication with his counsel.
(b) Definition. As used in this rule,
testimony via ‘‘remote means’’ includes,
but is not limited to, testimony by
video-teleconference, closed circuit
television, telephone, or similar
technology.
Discussion
This rule applies for all witness
testimony other than child witness
testimony specifically covered by
M.R.E. 611(d) and R.C.M. 914A. When
utilizing testimony via remote means,
military justice practitioners are
encouraged to consult the procedure
used in In re San Juan Dupont Plaza
Hotel Fire Litigation, 129 F.R.D. 424
(D.P.R. 1989) and to read United States
v. Shabazz, 52 M.J. 585 (N.M.Ct. Crim.
App. 1999); and United States v.
Gigante, 166 F.3d 75 (2d Cir. 1999), cert
denied, 528 U.S. 1114 (2000).
Add a new analysis section for R.C.M.
914B by inserting the following title and
paragraph:
‘‘Rule 914B. Use of Remote Testimony
‘‘200lAmendment: This rule
describes the basic procedures that will
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be used when testimony of any
witnesses, other than child witnesses
pursuant to R.C.M. 914A, is received via
remote means.’’
Amend R.C.M 1001.(e)(2)(D) by
deleting the ‘‘or’’ before ‘‘former
testimony’’ and inserting ‘‘, or testimony
by remote means’’ after ‘‘former
testimony’’ so the paragraph reads as
follows:
(D) Other forms of evidence, such as
oral depositions, written interrogatories,
former testimony, or testimony by
remote means would not be sufficient to
meet the needs of the court-martial in
the determination of an appropriate
sentence; and
Add new Discussion paragraph
immediately following R.C.M.
1001(e)(2)(E) which will read:
The procedures for receiving
testimony via remote means and the
definition thereof are contained in
R.C.M. 914B.
Amend the Analysis accompanying
R.C.M. 1001(e) by inserting the
following paragraph:
‘‘200l Amendment: Subsection
(e)(2)(D) was amended to allow the
availability of various types of remote
testimony to be a factor to consider in
whether a presentencing witness must
be phyically produced.’’
Amend Part IV, Punitive Articles,
paragraph 4(c)(6) by inserting the
following new subparagraph (f) and
redesignating the existing subparagraph
(f) as (g):
‘‘(f) Article 119a—attempting to kill
an unborn child’’
Amend Appendix 23, Analysis of
Punitive Articles
‘‘200l Amendment: In 4(c)(6),
subparagraph (f) was redesignated as
subparagraph (g) and a new
subparagraph (f) was added to reflect
the offense of attempting to kill an
unborn child as established by the
Unforn Victims of Violence Act of 2004,
Pub. L. No. 108–212, § 3, l Stat. l, l
(2004) (art. 119a).
Amend Part IV, Punitive Articles, by
inserting the new paragraph 44a to read:
44a. Article 119a—Death or Injury of
an Unborn child
a. Text.
‘‘(a)(1) Any person subject to this
chapter who engages in conduct that
violates any of the provisions of law
listed in subsection (b) and thereby
causes the death of, or bodily injury (as
defined in section 1365 of title 18) to,
a child, who is in utero at the time the
conduct takes place, is guilty of a
separate offense under this section and
shall, upon conviction, be punished by
such punishment, other than death, as
court-martial may direct, which shall be
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consistent with the punishments
prescribed by the President for that
conduct had that injury or death
occurred to the unborn child’s mother.
(2) An offense under this section does
not require proof that—
(i) the person engage in the conduct
had knowledge or should have had
knowledge that the victim of the
underlying offense was pregnant; or
(ii) the accused intended to cause the
death of, or bodily injury to, the unborn
child.
(3) If the person engaging in the
conduct thereby intentionally kills or
attempts to kill the unborn child, that
person shall, instead of being punished
under paragraph (1), be punished as
provided under sections 880, 918, and
919(a) of this title (articles 80, 118, and
119(a)) for intentionally killing or
attempting to kill a human being.
(4) Notwithstanding any other
provision of law, the death penalty shall
not be imposed for an offense under this
section.
(b) The provisions referred to in
subsection (a)are sections 918, 919(a),
919(b) (2), 920(a), 922, 924, 926, and 928
of this title (articles 118, 119(a),
119(b)(2), 120(a), 122, 124, 126, and
128),
(c) Nothing in this section shall be
construed to permit the prosecution—
(1) of any person for conduct relating
to an abortion for which the consent of
the pregnant woman, or a person
authorized by law to act on her behalf,
has been obtained or for which such
consent is implied by law;
(2) of any person for any medical
treatment of the pregnant woman or her
unborn child; or
(3) of any woman with respect to her
unborn child.
(d) As used in this section, the term
‘unborn child’ means a child in utero,
and the term ‘child in utero’ or ‘child,
who is in utero’ means a member of the
species homo sapiens, at any stage of
development, who is carried in the
womb.’’
b. Elements.
(1) Injuring an unborn child.
(a) That the accused was engaged in
the [(murder (article 118)), (voluntary
manslaughter (article 119(a))),
(involuntary manslaughter (article
119(b) (2))), (rape (article 120)), (robbery
(article 122)), (maiming (article 124)),
(assault (article 128)) of] or [burning or
setting afire, as arson (article 126), of (a
dwelling inhabited by) (a structure or
property (known to be occupied by)
(belonging to))] a woman;
(b) That the woman was then
pregnant; and
(c) That the accused thereby caused
bodily injury to the unborn child of that
woman.
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(2) Killing an unborn child.
(a) That the accused was engaged in
the [(murder (article 118)), (voluntary
manslaughter (article 119(a))),
(involuntary manslaughter (article
119(b)(2))), (rape (article 120)), (robbery
(article 122)), (maiming (article 124)),
(assault (article 128)), of ] or [burning or
setting afire, as arson (article 126), of (a
dwelling inhabited by) (a structure or
property known to (be occupied by)
(belong to))] a woman; and
(b) That the woman was then
pregnant; and
(c) That the accused thereby caused
the death of the unborn child of that
woman.
(3) Attempting to kill an unborn child.
(a) That the accused was engaged in
the [(murder (article 118)), (voluntary
manslaughter (article 119(a))),
(involuntary manslaughter (article
119(b)(2))), (rape (article 120)), (robbery
(article 122)), (maiming (article 124)),
(assault (article 128)), of] or [burning or
setting afire, as arson (article 126), of (a
dwelling inhabited by) (a structure or
property (known to be occupied by)
(belonging to))] a woman; and
(b) That the woman was then
pregnant; and
(c) That the accused thereby
attempted to kill the unborn child of
that woman.
(4) Intentionally killing an unborn
child.
(a) That the accused was engaged in
the [(murder (article 118)), (voluntary
manslaughter (article 119(b)(2))), (rape
(article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article
128)), of] or [burning or setting afire, as
arson (article 126), of (a dwelling
inhabited by) (a structure or property
(known to be occupied by) (belonging
to))] a woman; and
(b) That the woman was then
pregnant; and
(c) That the accused thereby
intentionally killed the unborn child of
that woman.
c. Explanation.
(1) Nature of offense. This article
makes it a separate, punishable crime to
cause the death of or bodily injury to an
unborn child while engaged in arson
(article 126, UCMJ) murder (article 118,
UCMJ); voluntary manslaughter (article
119(a), UCMJ); involuntary
manslaughter (article 119(b)(2), UCMJ;
rape (article 120(a), UCMJ); robbery
(article 122, UCMJ); maiming (article
124, UCMJ); or assault (article 128,
UCMJ) against a pregnant woman. For
all underlying offenses, except arson,
this article requires that the victim of
the underlying offense be the pregnant
mother. For purposes of arson, the
pregnant mother must have some nexus
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to the arson such that she sustained
some ‘‘bodily unjury’’ due to the arson.
For the purposes of this article the term
‘‘women’’ means a female of any age.
This article does not permit the
prosecution of any—
(i) person for conduct relating to an
abortion for which the consent of the
pregnant woman, or a person authorized
by law to act on her behalf, has been
obtained or for which such consent is
implied by law;
(ii) person for any medical treatment
of the pregnant woman or her unborn
child; or
(iii) woman with respect to her
unborn child.
The offenses of ‘‘injuring an unborn
child’’ and ‘‘killing an unborn child’’ do
not require proof that—
(i) the person engaging in the conduct
(the accused) had knowledge or should
have had knowledge that the victim of
the underlying offense was pregnant; or
(ii) the accused intended to cause the
death of, or bodily injury to, the unborn
child.
(2) Bodily injury. For the purpose of
this offense, the term ‘‘bodily injury’’ is
that which is provided by 18 U.S.C.
§ 1365, to wit: a cut, abrasion, bruise,
burn, or disfigurement; physical pain;
illness; impairment of the function of a
bodily member, organ, or mental
faculty; or any other injury to the body,
no matter how temporary.
(3) Unborn child. ‘‘Unborn child’’
means a child in utero or a member of
the species homo sapiens who is carried
in the womb, at any stage of
development, from conception to birth.
d. Lesser included offenses.
(1) Killing an unborn child.
(a) Article 119a—injuring an unborn
child
(2) Intentionally killing an unborn
child.
(a) Article 119a—killing an unborn
child
(b) Article 119a—injuring an unborn
child
(c) Article 119a—attempts (attempting
to kill an unborn child)
e. Maximum punishment.
The maximum punishment for (1)
Injuring an unborn child; (2) Killing an
unborn child; (3) Attempting to kill an
unborn child; or (4) Intentionally killing
an unborn child is such punishment,
other than death, as a court-martial may
direct, but shall be consistent with the
punishment had the injury, death,
attempt to kill or intentional killing
occurred to the unborn child’s mother.
f. Sample specifications.
(1) Injuring an unborn child.
In that llllllll (personal
jurisdiction data), did (at/on board—
location), (subject-matter jurisdiction
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data, if required), on or about
llllll 20 llllll, cause
bodily injury to the unborn child of
llllllll, a pregnant woman,
by engaging in the [(murder) (voluntary
manslaughter) (involuntary
manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited
by) (a structure or property known to (be
occupied by) (belong to))] that woman.
(2) Killing an unborn child.
In that llllllll (personal
jurisdiction data), did (at/on board—
location), (subject-matter jurisdiction
data, if required), on or about
llllll 20 llllll, cause the
death to the unborn child of
llllllll, a pregnant woman,
by engaging in the [(murder) (voluntary
manslaughter) (involuntary
manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited
by) (a structure or property known to (be
occupied by) (belong to))] that woman.
(2) Killing an unborn child.
In that llllllll (personal
jurisdiction data), did (at/on board—
location), (subject-matter jurisdiction
data, if required), on or about
llllll 20 llllll, cause the
death to the unborn child of
llllllll, a pregnant woman,
by engaging in the [(murder) (voluntary
manslaughter) (involuntary
manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited
by) (a structure or property known to (be
occupied by) (belong to))] that woman.
(3) Attempting to kill an unborn child.
In that llllllll (personal
jurisdiction data), did (at/on board—
location), (subject-matter jurisdiction
data, if required), on or about
llllll 20 llllll, attempt
to kill the unborn child of
llllllll, a pregnant woman,
by engaging in the [(murder) (voluntary
manslaughter) (involuntary
manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited
by) (a structure or property known to (be
occupied by) (belong to))] that woman.
(4) Intentionally killing an unborn
child.
In that llllllll (personal
jurisdiction data), did (at/on board—
location), (subject-matter jurisdiction
data, if required), on or about
llllll 20 llllll,
intentionally kill the unborn child of
llllllll, a pregnant woman,
by engaging in the [(murder) (voluntary
manslaughter) (involuntary
manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning)
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(setting afire) of (a dwelling inhabited
by) (a structure or property known to (be
occupied by) (belong to))] that woman.
Amend Appendix 12, maximum
Punishment Chart by inserting the
following before Article 120, rape:
119a Death or Injury of an Unborn
Child
Injuring or killing an unborn child
Article 119a * * * Such punishment,
other than death, as a court-martial may
direct but such punishment shall be
consistent with the punishment had the
bodily injury or death occurred to the
unborn child’s mother.
Attempting to kill an unborn child
Article 119a * * * Such punishment,
other than death, as a court-martial may
direct but such punishment shall be
consistent with the punishment had the
attempt been made to kill the unborn
child’s mother.
Intentional killing an unborn child
Article 119a * * * Such punishment,
other than death, as a court-martial may
direct but such punishment shall be
consistent with the punishment had the
killing occurred to the unborn child’s
mother.
Amend Appendix 23, Analysis of
Punitive Articles by adding the
following new analysis:
44a. Article 119a—(Death or Injury of
an Unborn Child)
(c) Explanation. This paragraph is
new and is based on Public Law 108–
212, 18 U.S.C. 1841 and 10 U.S.C. 919a
(Unborn Victims of Violence Act of
2004) enacted on 1 April 2004.
Amend paragraph 97, Article 134—
(Pandering and prostitution) to add the
new offense of patronizing a prostitute.
The Article as amended will read:
a. Text. See paragraph 60.
b. Elements.
(1) Prostitution.
(a) That the accused had sexual
intercourse with another person not the
accused’s spouse;
(b) That the accused did so for the
purpose of receiving money or other
compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the
conduct of the accused was to the
prejudice of good order and discipline
in the armed forces or was of a nature
to bring discredit upon the armed
forces.
(2) Patronizing a prostitute.
(a) That the accused had sexual
intercourse with another person not the
accused’s spouse;
(b) That the accused compelled,
induced, enticed, or procured such
person to engage in an act of sexual
intercourse in exchange for money or
other compensation; and
E:\FR\FM\11JAN1.SGM
11JAN1
Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Notices
(c) That this act was wrongful; and
(d) That, under the circumstances, the
conduct of the accused was to the
prejudice of good order and discipline
in the armed forces or was of a nature
to bring discredit upon the armed
forces.
(3) Pandering by compelling,
inducing, enticing, or procuring act of
prostitution.
(a) That the accused compelled,
induced, enticed, or procured a certain
person to engage in an act of sexual
intercourse for hire and reward with a
person to be directed to said person by
the accused;
(b) That this compelling, inducing,
enticing, or procuring was wrongful;
and
(c) That, under the circumstances, the
conduct of the accused was to the
prejudice of good order and discipline
in the armed forces or was of a nature
to bring discredit upon the armed
forces.
(4) Pandering by arranging or
receiving consideration for arranging for
sexual intercourse or sodomy.
(a) That the accused arranged for, or
received valuable consideration for
arranging for, a certain person to engage
in sexual intercourse or sodomy with
another person;
(b) That the arranging (and receipt of
consideration) was wrongful; and
(c) That, under the circumstances, the
conduct of the accused was to the
prejudice of good order and discipline
in the armed forces or was of a nature
to bring discredit upon the armed
forces.
c. Explanation. Prostitution may be
committed by males or females. Sodomy
for money or compensation is not
included in subparagraph b(1). Sodomy
may be charged under paragraph 51.
Evidence that sodomy was for money or
compensation may be a matter in
aggravation. See R.C.M. 1001(b)(4).
d. Lesser included offense. Article
80—attempts
e. Maximum punishment.
(1) Prostitution and patronizing a
prostitute. Dishonorable discharge,
forfeiture of all pay and allowances, and
confinement for 1 year.
(2) Pandering. Dishonorable
discharge, forfeiture of all pay and
allowances, and confinement for 5
years.
f. Sample specifications.
(1) Prostitution.
In that llllllll (personal
jurisdiction data), did, (at/on board—
location) (subject-matter jurisdiction
data, if required), on or about
llllll 20 l, wrongfully engage
in (an act) (acts) of sexual intercourse
with llllllll, a person not his/
VerDate jul<14>2003
19:56 Jan 10, 2005
Jkt 205001
her spouse, for the purpose of receiving
(money) (llll).
(2) Patronizing a prostitute.
In that llllllll (personal
jurisdiction data), did, (at/on board—
location) (subject-matter jurisdiction
data, if required), on or about
llllll 20 l, wrongfully (compel)
(induce) (entice) (procure
llllllll, a person not his/her
spouse, to engage in (an act) (acts) of
sexual intercourse with the accused in
exchange for (money)
(llllllll).
(3) Compelling, inducing, enticing, or
procuring act of prostitution.
In that llllllll (personal
jurisdiction data), did, (at/on board—
location) (subject-matter jurisdiction
data, if required), on or about
llllllll 20 l, wrongfully
(compel) (induce) (entice) (procure)
llllllll to engage in (an act)
(acts) of (sexual intercourse for hire and
reward with persons to be directed to
him/her by the said llllllll.
(4) Arranging, or receiving
consideration for arranging for sexual
intercourse or sodomy.
In that llllllll (personal
jurisdiction data), did, (at/on board—
location) (subject-matter jurisdiction
data, if required), on or about
llllll 20 l wrongfully (arrange
for) (receive valuable consideration, to
wit: llllll on account of
arranging for—) llllllll to
engage in (an act) (acts) of (sexual
intercourse) (sodomy) with
llllllll.
Amend Appendix 12, Maximum
Punishment Chart by substituting
‘‘Prostitution and patronizing a
prostitute’’ for ‘‘Prostitution.’’
Amend Appendix 23, Analysis of
Punitive Articles by amending the
Analysis accompanying paragraph 97 by
adding the following:
‘‘200lAmendment: b. Elements.
Subparagraph (2) defines the elements
of the offense of patronizing a prostitute.
Old subparagraphs (2) and (3) are now
(3) and (4) respectively.’’
Dated: January 5, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 05–457 Filed 1–10–05; 8:45 am]
BILLING CODE 5001–06–M
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
1881
DEPARTMENT OF EDUCATION
[CFDA 84.060A]
Indian Education Formula Grants to
Local Education Agencies—Notice
Inviting Applications for Fiscal Year
(FY) 2005
Office of Indian Education.
Purpose: The Indian Education
Formula Grant program provides grants
to support local educational agencies
(LEAs) and other eligible entities
(described elsewhere in this notice) in
their efforts to reform and improve
elementary and secondary school
programs that serve Indian students.
The programs funded are to be based on
challenging State academic content and
student academic achievement
standards used for all students, and be
designed to assist Indian students to
meet those standards. Section 7116 of
the Elementary and Secondary
Education Act of 1965, as amended
(ESEA), also authorizes, upon the
Secretary’s receipt of an acceptable plan
for the integration of education and
related services, the consolidation of
funds for any Federal program
exclusively serving Indian children, or
the funds reserved under any Federal
program to exclusively serve Indian
children, that are awarded under a
statutory or administrative formula, for
the purposes of providing education and
related services that would be used to
serve Indian students. Instructions for
submitting an integration of services
plan are included in the application
package.
Eligible Applicants: LEAs, certain
schools funded by the Bureau of Indian
Affairs and Indian tribes under certain
conditions, as prescribed by section
7112(c) of the ESEA.
Applications Available: January 12,
2005.
Deadline for Transmittal of
Applications: February 28, 2005.
Applications not meeting the deadline
will not be considered for funding in the
initial allocation of awards. However, if
funds become available after the initial
allocation of funds, applications not
meeting the deadline may be considered
for funding if the Secretary determines,
under section 7118(d) of the ESEA, that
reallocation of those funds to applicants
filing after the deadline would best
assist in advancing the purposes of the
program. However, the amount and date
of an individual award, if any, may be
less than the applicant would have
received had the application been
submitted on time.
Deadline for Intergovernmental
Review: May 11, 2005.
Available Funds: $95,165,536.
AGENCY:
E:\FR\FM\11JAN1.SGM
11JAN1
]]>Agencies
[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Notices]
[Pages 1877-1881]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-457]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of summary of public comment received regarding proposed
amendments to the Manual for Courts-Martial, United States (2002 ed.).
-----------------------------------------------------------------------
SUMMARY: The JSC is forwarding final proposed amendments to the Manual
for Courts-Martial, United States (2002 ed.) (MCM) to the Department of
Defense. The proposed changes, resulting from the JSC's 2004 annual
review of the MCM, concern the rules of procedure applicable in trials
by courts-martial. The proposed changes have not been coordinated
within the Department of Defense under DoD Directive 5500.1,
``Preparation and Processing of Legislation, Executive Orders,
Proclamations, and Reports and Comments Thereon,'' May 21, 1964, and do
not constitute the official position of the Department of Defense, the
Military Departments, or any other government agency.
This notice is provided in accordance with DoD Directive 5500.17,
``Role and Responsibilities of the Joint Service Committee (JSC) on
Military Justice,'' May 3, 2003. This notice is intended only to
improve the internal management of the Federal Government. It is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by any party against the United States, its
agencies, its officers, or any person.
In accordance with paragraph III.B.4 of the Internal Organization
and Operating Procedures of the JSC, the committee also invites members
of the public to suggest changes to the Manual for Courts-Martial in
accordance with the described format.
ADDRESSES: Comments and materials received from the public are
available for inspection or copying at the Office of the Judge Advocate
General (Code 20), 716 Sicard St., SE., Suite 1000, Washington, DC
20374-5047, between 8 a.m. and 3:30 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James Carsten,
Executive Secretary, Joint Service Committee on Military Justice,
Office of the Judge Advocate General, 716 Sicard St., SE., Suite 1000,
Washington, DC 20374-5047, (202) 685-7298, (202) 685-7687 fax.
SUPPLEMENTARY INFORMATION:
Background
On 15 September 2004, the JSC published a Notice of Proposed
Amendments to the Manual for Courts-Martial and a Notice of Public
Meeting to receive comment on its 2004 draft annual review of the
Manual for Courts-Martial. On 15 October 2004, the public meeting was
held. Five individuals attended the public meeting and provided oral
comment. The JSC received sixteen letters commenting on the proposed
amendments.
Purpose
The proposed changes concern the rules of procedure applicable in
trials by courts-martial. More specifically, the proposed changes:
Amend Rules of Court-Martial and other provisions of the Manual to
allow for remote testimony for certain Article 39(a), UCMJ sessions and
presentencing witnesses; add the Manual for Courts-Martial provisions
for newly enacted Article 119a, Death or Injury to an Unborn Child,
enacted on 1 April 2004 in the Unborn Victims of Violence Act of 2004;
and the addition of a new Article 134 offense of Patronizing a
Prostitute.
Discussion of Comments and Changes
In response to the request for public comment the JSC received oral
and written comments. The JSC considered the public comments and, after
making some minor amendments, is satisfied that the proposed amendments
are appropriate to implement without additional modification. The JSC
will forward the public comments and the proposed amendments to the
Department of Defense.
Summaries of the oral and written comments regarding the proposed
substantive changes follow:
a. In two submissions, one commentator objected to the remote
testimony amendments to the Rules of Courts-Martial. The commentator
objected, in part, because the commentator perceived that no rationale
was provided for the proposed amendments. The commentator also
considered the proposed amendments to be deleterious to the military
justice system.
b. Three comments were received regarding the JSC proposed Manual
provisions for the new Article 119a, Death or Injury to an Unborn
Child. Most of the comments highlighted the fact that the statutory
language may create some practical difficulties when an actual
prosecution takes place under this provision. Other comments suggested
creating a definition of
[[Page 1878]]
``woman'' for this specific article and adding certain language to the
draft elements to make them more consistent with current practices. The
JSC agreed and made amendments consistent with the comment on a
definition of the term ``woman'' and to add Manual-consistent language
to the draft specifications. One comment indicated that the JSC has
proposed MCM provisions for this new criminal statute which are not
completely consistent with the legislative language and intent.
c. The majority of comments received addressed the ``Patronizing a
Prostitute'' offense which the JSC is recommending be added to
paragraph 97 of Article 134, UCMJ. Those opposed to the JSC
recommendation questioned the need for such an offense, for a variety
of reasons including the impact on morale, the negative effects on the
health of the service members, and the potential for this offense to be
exploited by adversaries of the United States. In addition, some
expressed concern regarding the manner in which the offense might
ultimately be enforced. Those supporting the JSC recommendation
believed it was both appropriate and long overdue. Neither those
opposed to the JSC recommendation, nor those in support, provided
specific technical amendments to the recommendation. One comment did
indicate that no rationale was provided for the proposed amendments and
thus it was difficult to ascertain why the amendments were being
proposed.
Proposed Amendments After Consideration of Public Comment Received
The proposed amendments to the Manual for Courts-Martial are as
follows:
Amend RCM 703(b)(1) by inserting the following three sentences
after the last sentence in RCM 703(b)(1):
With the consent of both the accused and Government, the military
judge may authorize any witness to testify via remote means. Over a
party's objection, the military judge may authorize any witness to
testify on interlocutory questions via remote means or similar
technology if the practical difficulties of producing the witness
outweigh the significance of the witness' personal appearance. Factors
to be considered include, but are not limited to the costs of producing
the witness, the timing of the request for production of the witness,
the potential delay in the interlocutory proceeding that may be caused
by the production of the witness, the willingness of the witness to
testify in person, and the likelihood of significant interference with
military operational deployment, mission accomplishment, or essential
training, and for child witnesses the traumatic effect of providing in-
court testimony.
Add a new paragraph to the end of the Discussion which follows
R.C.M. (b)(1) that reads:
The procedures for receiving testimony via remote means and the
definition thereof are contained in R.C.M. 914B.
Amend the Analysis accompanying R.C.M. 703(b) by inserting the
following paragraph:
``200-- Amendment: Subsection (b)(1) was amended to allow, under
certain circumstances, the utilization of various types of remote
testimony in lieu of the personal appearance of the witness.''
Amend the discussion to R.C.M. 802 by amending the last sentence of
the discussion to read:
A conference may be conducted by remote means or similar technology
consistent with the definition in R.C.M. 914B.
Amend R.C.M. 804(c)(2) to read:
(2) Procedure. The accused's absence will be conditional upon his
being able to view the witness' testimony from a remote location.
Normally, transmission of the testimony will include a system which
will transmit the accused's image and voice into the courtroom from a
remote location as well as transmission of the child's testimony from
the courtroom to the accused's location. A one-way transmission may be
used if deemed necessary by the military judge. The accused will also
be provided private, contemporaneous communication with his counsel.
The procedures described herein shall be employed unless the accused
has made a knowing and affirmative waiver of these procedures.
Amend the Analysis accompanying R.C.M. 804(c) by inserting the
following paragraph:
``200-- Amendment: The specific terminology of the manner in which
remote live testimony may be transmitted was deleted to allow for
technological advances in the methods used to transmit audio and visual
information.''
Amend RCM 914A by deleting the third sentence of paragraph (a),
which read, ``However, such testimony should normally be taken via a
two-way closed circuit television system'' leaving the remaining
paragraph which reads:
(a) General procedures. A child shall be allowed to testify out of
the presence of the accused after the military judge has determined
that the requirements of Mil. R. Evid. 611(d)(3) have been satisfied.
The procedure used to take such testimony will be determined by the
military judge based upon the exigencies of the situation. At a
minimum, the following procedures shall be observed:
Amend RCM 914A by re-lettering current paragraph ``(b)'' to
paragraph ``(c)'' and inserting new paragraph (b) which will read:
(b) Definition. As used in this rule, ``remote live testimony''
includes, but is not limited to, testimony by video-teleconference,
closed circuit television, or similar techology.
Add a discussion section that reads:
For purposes of this rule, unlike R.C.M. 914B, remote means or
similar technology does not include receiving testimony by telephone
where the parties cannot see and hear each other.
Amend the Analysis accompanying R.C.M. 914A by inserting the
following paragraph:
``200-- Amendment: The rule was amended to allow for technological
advances in the methods used to transmit audio and visual
information.''
Add new Rule R.C.M. 914B, which will read:
Rule 914B. Use of Remote Testimony
(a) General procedure.The military judge shall determine the
procedures used to take testimony via remote means. At a minimum, all
parties shall be able to hear each other, those in attendance at the
remote site shall be identified, and the accused shall be permitted
private, contemporaneous communication with his counsel.
(b) Definition. As used in this rule, testimony via ``remote
means'' includes, but is not limited to, testimony by video-
teleconference, closed circuit television, telephone, or similar
technology.
Discussion
This rule applies for all witness testimony other than child
witness testimony specifically covered by M.R.E. 611(d) and R.C.M.
914A. When utilizing testimony via remote means, military justice
practitioners are encouraged to consult the procedure used in In re San
Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D. 424 (D.P.R. 1989)
and to read United States v. Shabazz, 52 M.J. 585 (N.M.Ct. Crim. App.
1999); and United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), cert
denied, 528 U.S. 1114 (2000).
Add a new analysis section for R.C.M. 914B by inserting the
following title and paragraph:
``Rule 914B. Use of Remote Testimony
``200--Amendment: This rule describes the basic procedures that
will
[[Page 1879]]
be used when testimony of any witnesses, other than child witnesses
pursuant to R.C.M. 914A, is received via remote means.''
Amend R.C.M 1001.(e)(2)(D) by deleting the ``or'' before ``former
testimony'' and inserting ``, or testimony by remote means'' after
``former testimony'' so the paragraph reads as follows:
(D) Other forms of evidence, such as oral depositions, written
interrogatories, former testimony, or testimony by remote means would
not be sufficient to meet the needs of the court-martial in the
determination of an appropriate sentence; and
Add new Discussion paragraph immediately following R.C.M.
1001(e)(2)(E) which will read:
The procedures for receiving testimony via remote means and the
definition thereof are contained in R.C.M. 914B.
Amend the Analysis accompanying R.C.M. 1001(e) by inserting the
following paragraph:
``200-- Amendment: Subsection (e)(2)(D) was amended to allow the
availability of various types of remote testimony to be a factor to
consider in whether a presentencing witness must be phyically
produced.''
Amend Part IV, Punitive Articles, paragraph 4(c)(6) by inserting
the following new subparagraph (f) and redesignating the existing
subparagraph (f) as (g):
``(f) Article 119a--attempting to kill an unborn child''
Amend Appendix 23, Analysis of Punitive Articles
``200-- Amendment: In 4(c)(6), subparagraph (f) was redesignated as
subparagraph (g) and a new subparagraph (f) was added to reflect the
offense of attempting to kill an unborn child as established by the
Unforn Victims of Violence Act of 2004, Pub. L. No. 108-212, Sec. 3,
-- Stat. --, -- (2004) (art. 119a).
Amend Part IV, Punitive Articles, by inserting the new paragraph
44a to read:
44a. Article 119a--Death or Injury of an Unborn child
a. Text.
``(a)(1) Any person subject to this chapter who engages in conduct
that violates any of the provisions of law listed in subsection (b) and
thereby causes the death of, or bodily injury (as defined in section
1365 of title 18) to, a child, who is in utero at the time the conduct
takes place, is guilty of a separate offense under this section and
shall, upon conviction, be punished by such punishment, other than
death, as court-martial may direct, which shall be consistent with the
punishments prescribed by the President for that conduct had that
injury or death occurred to the unborn child's mother.
(2) An offense under this section does not require proof that--
(i) the person engage in the conduct had knowledge or should have
had knowledge that the victim of the underlying offense was pregnant;
or
(ii) the accused intended to cause the death of, or bodily injury
to, the unborn child.
(3) If the person engaging in the conduct thereby intentionally
kills or attempts to kill the unborn child, that person shall, instead
of being punished under paragraph (1), be punished as provided under
sections 880, 918, and 919(a) of this title (articles 80, 118, and
119(a)) for intentionally killing or attempting to kill a human being.
(4) Notwithstanding any other provision of law, the death penalty
shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a)are sections 918,
919(a), 919(b) (2), 920(a), 922, 924, 926, and 928 of this title
(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128),
(c) Nothing in this section shall be construed to permit the
prosecution--
(1) of any person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by
law;
(2) of any person for any medical treatment of the pregnant woman
or her unborn child; or
(3) of any woman with respect to her unborn child.
(d) As used in this section, the term `unborn child' means a child
in utero, and the term `child in utero' or `child, who is in utero'
means a member of the species homo sapiens, at any stage of
development, who is carried in the womb.''
b. Elements.
(1) Injuring an unborn child.
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b) (2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)) of] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property (known to be occupied by) (belonging to))] a
woman;
(b) That the woman was then pregnant; and
(c) That the accused thereby caused bodily injury to the unborn
child of that woman.
(2) Killing an unborn child.
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of ] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property known to (be occupied by) (belong to))] a woman;
and
(b) That the woman was then pregnant; and
(c) That the accused thereby caused the death of the unborn child
of that woman.
(3) Attempting to kill an unborn child.
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(a))), (involuntary manslaughter
(article 119(b)(2))), (rape (article 120)), (robbery (article 122)),
(maiming (article 124)), (assault (article 128)), of] or [burning or
setting afire, as arson (article 126), of (a dwelling inhabited by) (a
structure or property (known to be occupied by) (belonging to))] a
woman; and
(b) That the woman was then pregnant; and
(c) That the accused thereby attempted to kill the unborn child of
that woman.
(4) Intentionally killing an unborn child.
(a) That the accused was engaged in the [(murder (article 118)),
(voluntary manslaughter (article 119(b)(2))), (rape (article 120)),
(robbery (article 122)), (maiming (article 124)), (assault (article
128)), of] or [burning or setting afire, as arson (article 126), of (a
dwelling inhabited by) (a structure or property (known to be occupied
by) (belonging to))] a woman; and
(b) That the woman was then pregnant; and
(c) That the accused thereby intentionally killed the unborn child
of that woman.
c. Explanation.
(1) Nature of offense. This article makes it a separate, punishable
crime to cause the death of or bodily injury to an unborn child while
engaged in arson (article 126, UCMJ) murder (article 118, UCMJ);
voluntary manslaughter (article 119(a), UCMJ); involuntary manslaughter
(article 119(b)(2), UCMJ; rape (article 120(a), UCMJ); robbery (article
122, UCMJ); maiming (article 124, UCMJ); or assault (article 128, UCMJ)
against a pregnant woman. For all underlying offenses, except arson,
this article requires that the victim of the underlying offense be the
pregnant mother. For purposes of arson, the pregnant mother must have
some nexus
[[Page 1880]]
to the arson such that she sustained some ``bodily unjury'' due to the
arson. For the purposes of this article the term ``women'' means a
female of any age. This article does not permit the prosecution of
any--
(i) person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by
law;
(ii) person for any medical treatment of the pregnant woman or her
unborn child; or
(iii) woman with respect to her unborn child.
The offenses of ``injuring an unborn child'' and ``killing an
unborn child'' do not require proof that--
(i) the person engaging in the conduct (the accused) had knowledge
or should have had knowledge that the victim of the underlying offense
was pregnant; or
(ii) the accused intended to cause the death of, or bodily injury
to, the unborn child.
(2) Bodily injury. For the purpose of this offense, the term
``bodily injury'' is that which is provided by 18 U.S.C. Sec. 1365, to
wit: a cut, abrasion, bruise, burn, or disfigurement; physical pain;
illness; impairment of the function of a bodily member, organ, or
mental faculty; or any other injury to the body, no matter how
temporary.
(3) Unborn child. ``Unborn child'' means a child in utero or a
member of the species homo sapiens who is carried in the womb, at any
stage of development, from conception to birth.
d. Lesser included offenses.
(1) Killing an unborn child.
(a) Article 119a--injuring an unborn child
(2) Intentionally killing an unborn child.
(a) Article 119a--killing an unborn child
(b) Article 119a--injuring an unborn child
(c) Article 119a--attempts (attempting to kill an unborn child)
e. Maximum punishment.
The maximum punishment for (1) Injuring an unborn child; (2)
Killing an unborn child; (3) Attempting to kill an unborn child; or (4)
Intentionally killing an unborn child is such punishment, other than
death, as a court-martial may direct, but shall be consistent with the
punishment had the injury, death, attempt to kill or intentional
killing occurred to the unborn child's mother.
f. Sample specifications.
(1) Injuring an unborn child.
In that ---------------- (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------------ 20 ------------, cause bodily injury to the
unborn child of ----------------, a pregnant woman, by engaging in the
[(murder) (voluntary manslaughter) (involuntary manslaughter) (rape)
(robbery) (maiming) (assault) of] [(burning) (setting afire) of (a
dwelling inhabited by) (a structure or property known to (be occupied
by) (belong to))] that woman.
(2) Killing an unborn child.
In that ---------------- (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------------ 20 ------------, cause the death to the unborn
child of ----------------, a pregnant woman, by engaging in the
[(murder) (voluntary manslaughter) (involuntary manslaughter) (rape)
(robbery) (maiming) (assault) of] [(burning) (setting afire) of (a
dwelling inhabited by) (a structure or property known to (be occupied
by) (belong to))] that woman.
(2) Killing an unborn child.
In that ---------------- (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------------ 20 ------------, cause the death to the unborn
child of ----------------, a pregnant woman, by engaging in the
[(murder) (voluntary manslaughter) (involuntary manslaughter) (rape)
(robbery) (maiming) (assault) of] [(burning) (setting afire) of (a
dwelling inhabited by) (a structure or property known to (be occupied
by) (belong to))] that woman.
(3) Attempting to kill an unborn child.
In that ---------------- (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------------ 20 ------------, attempt to kill the unborn child
of ----------------, a pregnant woman, by engaging in the [(murder)
(voluntary manslaughter) (involuntary manslaughter) (rape) (robbery)
(maiming) (assault) of] [(burning) (setting afire) of (a dwelling
inhabited by) (a structure or property known to (be occupied by)
(belong to))] that woman.
(4) Intentionally killing an unborn child.
In that ---------------- (personal jurisdiction data), did (at/on
board--location), (subject-matter jurisdiction data, if required), on
or about ------------ 20 ------------, intentionally kill the unborn
child of ----------------, a pregnant woman, by engaging in the
[(murder) (voluntary manslaughter) (involuntary manslaughter) (rape)
(robbery) (maiming) (assault) of] [(burning) (setting afire) of (a
dwelling inhabited by) (a structure or property known to (be occupied
by) (belong to))] that woman.
Amend Appendix 12, maximum Punishment Chart by inserting the
following before Article 120, rape:
119a Death or Injury of an Unborn Child
Injuring or killing an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the bodily
injury or death occurred to the unborn child's mother.
Attempting to kill an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the attempt been
made to kill the unborn child's mother.
Intentional killing an unborn child Article 119a * * * Such
punishment, other than death, as a court-martial may direct but such
punishment shall be consistent with the punishment had the killing
occurred to the unborn child's mother.
Amend Appendix 23, Analysis of Punitive Articles by adding the
following new analysis:
44a. Article 119a--(Death or Injury of an Unborn Child)
(c) Explanation. This paragraph is new and is based on Public Law
108-212, 18 U.S.C. 1841 and 10 U.S.C. 919a (Unborn Victims of Violence
Act of 2004) enacted on 1 April 2004.
Amend paragraph 97, Article 134--(Pandering and prostitution) to
add the new offense of patronizing a prostitute. The Article as amended
will read:
a. Text. See paragraph 60.
b. Elements.
(1) Prostitution.
(a) That the accused had sexual intercourse with another person not
the accused's spouse;
(b) That the accused did so for the purpose of receiving money or
other compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
(2) Patronizing a prostitute.
(a) That the accused had sexual intercourse with another person not
the accused's spouse;
(b) That the accused compelled, induced, enticed, or procured such
person to engage in an act of sexual intercourse in exchange for money
or other compensation; and
[[Page 1881]]
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
(3) Pandering by compelling, inducing, enticing, or procuring act
of prostitution.
(a) That the accused compelled, induced, enticed, or procured a
certain person to engage in an act of sexual intercourse for hire and
reward with a person to be directed to said person by the accused;
(b) That this compelling, inducing, enticing, or procuring was
wrongful; and
(c) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
(4) Pandering by arranging or receiving consideration for arranging
for sexual intercourse or sodomy.
(a) That the accused arranged for, or received valuable
consideration for arranging for, a certain person to engage in sexual
intercourse or sodomy with another person;
(b) That the arranging (and receipt of consideration) was wrongful;
and
(c) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.
c. Explanation. Prostitution may be committed by males or females.
Sodomy for money or compensation is not included in subparagraph b(1).
Sodomy may be charged under paragraph 51. Evidence that sodomy was for
money or compensation may be a matter in aggravation. See R.C.M.
1001(b)(4).
d. Lesser included offense. Article 80--attempts
e. Maximum punishment.
(1) Prostitution and patronizing a prostitute. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 1
year.
(2) Pandering. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
f. Sample specifications.
(1) Prostitution.
In that ---------------- (personal jurisdiction data), did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about ------------ 20 --, wrongfully engage in (an act) (acts) of
sexual intercourse with ----------------, a person not his/her spouse,
for the purpose of receiving (money) (--------).
(2) Patronizing a prostitute.
In that ---------------- (personal jurisdiction data), did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about ------------ 20 --, wrongfully (compel) (induce) (entice)
(procure ----------------, a person not his/her spouse, to engage in
(an act) (acts) of sexual intercourse with the accused in exchange for
(money) (----------------).
(3) Compelling, inducing, enticing, or procuring act of
prostitution.
In that ---------------- (personal jurisdiction data), did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about ---------------- 20 --, wrongfully (compel) (induce) (entice)
(procure) ---------------- to engage in (an act) (acts) of (sexual
intercourse for hire and reward with persons to be directed to him/her
by the said ----------------.
(4) Arranging, or receiving consideration for arranging for sexual
intercourse or sodomy.
In that ---------------- (personal jurisdiction data), did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about ------------ 20 -- wrongfully (arrange for) (receive valuable
consideration, to wit: ------------ on account of arranging for--) ----
------------ to engage in (an act) (acts) of (sexual intercourse)
(sodomy) with ----------------.
Amend Appendix 12, Maximum Punishment Chart by substituting
``Prostitution and patronizing a prostitute'' for ``Prostitution.''
Amend Appendix 23, Analysis of Punitive Articles by amending the
Analysis accompanying paragraph 97 by adding the following:
``200--Amendment: b. Elements. Subparagraph (2) defines the
elements of the offense of patronizing a prostitute. Old subparagraphs
(2) and (3) are now (3) and (4) respectively.''
Dated: January 5, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-457 Filed 1-10-05; 8:45 am]
BILLING CODE 5001-06-M
