Manual for Courts-Martial; Proposed Amendments, 78137-78155 [E6-22107]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Notices]
[Pages 78137-78155]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22107]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[DoD-2006-OS-0177]


Manual for Courts-Martial; Proposed Amendments

AGENCY: Department of Defense, 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 (2005 ed.).

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SUMMARY: The JSC is forwarding final proposed amendments to the Manual 
for Courts-Martial, United States (2005 ed.) (MCM) to the Department of 
Defense. The proposed changes, resulting from the JSC's 2005 and 2006 
annual reviews of the MCM, concern the rules of procedure applicable in 
trials by courts-martial and offenses that may be charged under the 
Uniform Code of Military Justice (UCMJ). 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.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the Office of The Judge Advocate 
General of the Army, Criminal Law Division, 1777 N. Kent Street, 10th 
Floor, Rosslyn, Virginia 22209-2194 between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Pete Yob, Executive 
Secretary, Joint Service Committee on Military Justice, 1777 N. Kent 
Street, Rosslyn, Virginia 22209-2194, (703) 588-6744, (703) 588-0144 
fax.

SUPPLEMENTARY INFORMATION: 

Background

    On August 10, 2006 (71 FR 45780), the JSC published a notice of 
Proposed Amendments to the Manual for Courts-Martial and a Notice of 
Public Meeting to receive comment on this proposal. The public meeting 
was held on 18 September 2006. One individual provided oral comment at 
the public meeting. The JSC received three sets of written comments 
from one individual, and two documents containing written comments from 
an organization. One anonymous poster submitted a comment through the 
Federal Docket Management System (FDMS) (DoD-2006-OS-0177).

Purpose

    The proposed changes concern the rules of procedure applicable in 
trials by courts-martial and offenses that can be charged under the 
UCMJ. More specifically, the proposed changes: Allow a military judge 
to sua sponte enter a finding of not guilty to an offense at any time 
prior to authentication of the record of trial, if prior to entering 
such finding the military judge holds an Article 39(a) session giving 
the parties an opportunity to be heard on the matter; require any 
sentence that must be approved by the President of the United States to 
be forwarded from the Service Secretary concerned through the Secretary 
of Defense; provide a definition of ``clergyman's assistant'' as used 
in the Military Rule of Evidence concerning communications to clergy; 
provide definitions of the terms ``child of either'' and ``temporary 
physical custody'' as used in the Military Rule of Evidence concerning 
the husband-wife privilege; amend Article 120 to incorporate some sex 
offenses currently charged under Article 134 of the UCMJ, change the 
elements of rape and add other sexual assault offenses, include all sex 
offenses against children, change the offense of carnal knowledge to 
aggravated sexual assault of a child, and change all Rules for Courts-
Martial and Military Evidence to be consistent with the new Article 120 
offense; and adds a new offense of child endangerment under Article 
134;

Discussion of Comments and Changes

    In response to request for public comment the JSC received oral 
comments from one individual and written comments from this same 
individual, one organization, and one anonymous person posting to FDMS. 
The JSC considered the public comments and is satisfied that the 
proposed amendments are appropriate to implement without modification. 
The JSC will forward the public comments and proposed amendments to the 
Department of Defense.

[[Page 78138]]

    The oral and written comments provided by members of the public 
regarding the proposed changes follow:
    a. Several comments included suggestions for changes to the MCM 
that were outside the scope of the proposed amendments. These proposals 
will be considered for inclusion in the 2007 JSC annual review. They do 
not affect the proposed amendment currently under consideration.
    b. Raised a concern about the public having a meaningful ability to 
comment because there was no summary, no explanation as to the 
``extent, substance, impact, or motivation,'' for the proposed changes, 
and because changed portions were not indicated in highlighting or in 
bold, when the text of the proposal stated they would be. Requested 
that the proposed changes be republished in the Federal Register with a 
summary and explanation and requested release of minutes from the 
internal JSC meetings where the JSC discussed these issues. In 
addition, objected to a 60 day time period from the date of publication 
for public comment and recommended that this period be at least 75 
days.
    In answer, the JSC has considered these comments and has determined 
that the rulemaking process is adequate, satisfies statutory 
requirements, and provides sufficient opportunity for public 
participation. The JSC has concluded that the public had a meaningful 
opportunity for comment. A supplemental notice in the Federal Register 
explained that changed portions were not highlighted in the initial 
publication, as intended, but the proposed changes as published were in 
the format that would be forwarded to the Department of Defense. The 
supplement noted that a copy of the proposal with highlighted portions 
was available to anyone upon request to the Executive Secretary of the 
JSC. An explanation as to the meaning and intent of this proposed 
change is more appropriate for Congressional action, as the basis for 
this change is statutory. Any detailed summary published could 
inadvertently fail to convey all the nuances of this complex change and 
could lead to confusion about the actual wording and effect of the 
proposed change. The JSC does not release minutes of its internal, 
deliberative meetings. The typical period for public comment in the 
Federal Register is 60 days and the DoD Directive regulating the JSC 
requires a 60 day publication period.
    c. Observed that the new Article 120 would not contain any offenses 
that could charge any criminal conduct that cannot be charged under 
existing provisions of the UCMJ.
    In answer, while the new Article 120 arguably does not criminalize 
any acts that could not have been charged prior to the change, there 
was a legislative decision to define more categories of offenses to be 
charged according to more specific facts involved in sex crimes.
    d. Opposed making ``indecent exposure'' an offense under Article 
120 without an element that would require the conduct charged to be 
service discrediting or without an element that would exclude 
situations in which situations where those witnessing the exposure were 
consenting adults or the situation in which the exposure occurred made 
it the norm.
    In answer, indecent exposure has an element requiring that the 
exposure be done in an indecent manner. One factor in determining 
whether exposure is indecent is the time, manner and place in which a 
person exposes himself or herself. Commanders will have the discretion 
to consider all surrounding factors before deciding if conduct 
involving exposure is actionable and whether action is appropriate.
    e. Expressed a desire that state statutes, state court decisions, 
and official guidance to prosecutors be consulted as these proposed 
amendments are implemented.
    In answer, a variety of sources, including Federal and state 
material, were consulted as these provisions were drafted. These 
sources will continue to be consulted during implementation.
    f. Recommended that forcible sodomy be abolished as an offense 
chargeable under Article 125 because it could now be charged under 
Article 120, and recommended that the consensual sodomy no longer be an 
offense under the code or that it be moved to Article 134 and require 
an element that it be service discrediting.
    In answer, this is a matter subject to legislative action. Congress 
did not include these changes as part of its legislative action in FY 
2006.
    g. Requested that the affirmative defense for marriage applicable 
to certain offenses be narrowed or eliminated.
    In answer, the affirmative defenses were contained in the 
legislation passed by Congress. The affirmative defense for marriage 
only applies to some of the offenses under Article 120. Most of these 
offenses involve conduct that would otherwise be deemed as consensual 
but for the fact that they involved children under the age of 16. A 
number of states allow marriage to children under the age of 16 under 
certain circumstances.
    h. Requested that the definition of ``child'' in the new Child 
Endangerment offense include a ``child in utero,'' to permit an 
expectant mother to be charged under this offense if her behavior 
endangers her unborn child.
    In answer, Congress recently passed legislation that became law 
creating a UCMJ offense for causing the death or injury of an unborn 
child. Within this offense, it expressly exempts the mother of the 
child in utero from prosecution. Therefore, expanding the definition of 
child in the new child endangerment offense for the purpose of 
criminalizing conduct by an expectant mother would appear to be 
contrary to established Congressional intent.

Proposed Amendments After Consideration of Public Comment Received

    The proposed recommended amendments to the Manual for Courts-
Martial to be forwarded through the DoD for action by Executive Order 
of the President of the United States are as follows:
    Section 1. Part II of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) RCM 916(b) is amended to read:
    (b) Burden of proof.
    (1) General rule. Except as listed below in paragraphs (2), (3), 
and (4), the prosecution shall have the burden of proving beyond a 
reasonable doubt that the defense did not exist.
    (2) Lack of mental responsibility. The accused has the burden of 
proving the defense of lack of mental responsibility by clear and 
convincing evidence.
    (3) Mistake of fact as to age. In the defense of mistake of fact as 
to age as described in Part IV, para. 45a(o)(2) in a prosecution of a 
sexual offense with a child under Article 120, the accused has the 
burden of proving mistake of fact as to age by a preponderance of the 
evidence. After the defense meets its burden, the prosecution shall 
have the burden of proving beyond a reasonable doubt that the defense 
did not exist.
    (4) Mistake of fact as to consent. In the defense of mistake of 
fact as to consent in Article 120(a), rape, Article 120(c), aggravated 
sexual assault, Article 120(e), aggravated sexual contact, and Article 
120(h), abusive sexual contact, the accused has the burden of proving 
mistake of fact as to consent by a preponderance of the evidence. After 
the defense meets its burden, the prosecution shall have the burden of 
proving beyond a reasonable doubt that the defense did not exist.
    (b) RCM 916(j)(2) is amended to read:
    (2) Child Sexual Offenses. It is a defense to a prosecution for 
Article 120 (d), aggravated sexual assault of a child, Article 120(f), 
aggravated sexual abuse

[[Page 78139]]

of a child, Article 120(i), abusive sexual contact with a child, or 
Article 120 (j), indecent liberty with a child that, at the time of the 
offense, the child 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.
    (c) RCM 916(j) is amended by inserting new paragraph RCM 916(j)(3) 
after the Discussion section to RCM 916(j)(2):
    (j)(3) Sexual offenses. It is an affirmative defense to a 
prosecution for Article 120(a), rape, Article 120(c), aggravated sexual 
assault, Article 120(e), aggravated sexual contact, and Article 120(h), 
abusive sexual contact that the accused held, as a result of ignorance 
or mistake, an incorrect belief that the other person engaging in the 
sexual conduct consented. The ignorance or mistake must have existed in 
the mind of the accused and must have been reasonable under all the 
circumstances. To be reasonable the ignorance or mistake must have been 
based on information, or lack of it, which would indicate to a 
reasonable person that the other person consented. Additionally, the 
ignorance or mistake cannot be based on the negligent failure to 
discover the true facts. Negligence is the absence of due care. Due 
care is what a reasonably careful person would do under the same or 
similar circumstances. The accused's state of intoxication, if any, at 
the time of the offense is not relevant to mistake of fact. A mistaken 
belief that the other person consented must be that which is a 
reasonably careful, ordinary, prudent, sober adult would have had under 
the circumstances at the time of the offense.
    (d) RCM 920(e)(5)(D) is amended to read:
    (D) The burden of proof to establish the guilt of the accused is 
upon the Government. [When the issue of lack of mental responsibility 
is raised, add: The burden of proving the defense of lack of mental 
responsibility by clear and convincing evidence is upon the accused. 
When the issue of mistake of fact under RCM 916 (j)(2) or (j)(3) is 
raised, add: The accused has the burden of proving the defense of 
mistake of fact as to consent or age by a preponderance of the 
evidence.]
    (e) RCM 1004(c)(7)(B) is amended to read as follows:
    (B) The murder was committed: while the accused was engaged in the 
commission or attempted commission of any robbery, rape, rape of a 
child, aggravated sexual assault, aggravated sexual assault of a child, 
aggravated sexual contact, aggravated sexual abuse of a child, 
aggravated sexual contact with a child, aggravated arson, sodomy, 
burglary, kidnapping, mutiny, sedition, or privacy of an aircraft or 
vessel; or while the accused was engaged in the commission or attempted 
commission of any offense involving the wrongful distribution, 
manufacture, or introduction or possession, with intent to distribute, 
of a controlled substance; or, while the accused was engaged in flight 
or attempted flight after the commission or attempted commission of any 
such offense.
    (f) RCM 1004(c)(8) is amended to read:
    (8) That only in the case of a violation of Article 118(4), the 
accused was the actual perpetrator of the killing or was a principal 
whose participation in the burglary, sodomy, rape, rape of a child, 
aggravated sexual assault, aggravated sexual assault of a child, 
aggravated sexual contact, aggravated sexual abuse of a child, 
aggravated sexual contact with a child, robbery, or aggravated arson 
was major and who manifested a reckless indifference for human life.
    (g) RCM 1102(b)(2), is amended to read:
    (2) Article 39(a) sessions. An Article 39(a) session under this 
rule may be called, upon motion of either party or sua sponte by the 
military judge, for the purpose of inquiring into, and, when 
appropriate, resolving any matter which arises after trial and which 
substantially affects the legal sufficiency of any findings of guilty 
or the sentence. The military judge may also call an Article 39(a) 
session, upon motion of either party or sua sponte, to reconsider any 
trial ruling that substantially affects the legal sufficiency of any 
findings of guilty or the sentence. The military judge may, sua sponte, 
at any time prior to authentication of the record of trial, enter a 
finding of not guilty of one or more offenses charged, or may enter a 
finding of not guilty of a part of a specification as long as a lesser 
offense charged is alleged in the portion of the specification. Prior 
to entering such a finding or findings, the military judge shall give 
each party an opportunity to be heard on the matter in a post-trial 
Article 39(a) session.
    (h) R.C.M. 1102(d) is amended by deleting the last phrase of the 
second sentence which reads:
    ``,except that no proceeding in revision may be held when any part 
of the sentence has been ordered executed.''
    (i) R.C.M. 1102(e)(2) is amended by inserting the following 
sentence after the last sentence in RCM 1102(e)(2):
    ``Prior to the military judge, sua sponte, entering a finding of 
not guilty of one or more offenses charged or entering a finding of not 
guilty of a part of a specification as long as a lesser offense charged 
is alleged in the portion of the specification, the military judge 
shall give each party an opportunity to be heard on the matter.''
    (j) R.C.M. 1204(c)(2) is amended by inserting the following at the 
end of the sentence:
    (c) Action of decision by the Court of Appeals for the Armed 
Forces.
    (2) Sentence requiring approval of the President. If the Court of 
Appeals for the Armed Forces has affirmed a sentence which must be 
approved by the President before it may be executed, the Judge Advocate 
General shall transmit the record of trial, the decision of the Court 
of Criminal Appeals, the decision of the Court of Appeals for the Armed 
Forces, and the recommendation of the Judge Advocate General to the 
Secretary concerned, who, at his discretion, may provide a 
recommendation. All courts-martial transmitted by the Secretary 
concerned, other than the Secretary of the Department of Homeland 
Security with respect to the Coast Guard when it is not operating as a 
service in the Navy, for the action of the President shall be 
transmitted to the Secretary of Defense, who, at his discretion, may 
provide a recommendation.
    Sec. 2. Part III of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) MRE 412 is amended as follows:
    Rule 412. Sex offense cases; Relevance of alleged victim's sexual 
behavior or sexual predisposition
    (a) Evidence generally inadmissible. The following evidence is not 
admissible in any proceeding involving an alleged sexual offense except 
as provided in subdivisions (b) and (c):
    (1) Evidence offered to prove that any alleged victim engaged in 
other sexual behavior.
    (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.

[[Page 78140]]

    (c) Procedure to determine admissibility.
    (1) A party intending to offer evidence under subdivision (b) 
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 hearing, which shall be closed. At this hearing, the 
parties may call witnesses, including the alleged victim, and offer 
relevant evidence. The alleged 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 for a purpose under subdivision 
(b) and that the probative value of such evidence outweighs the danger 
of unfair prejudice to the alleged victim's privacy, such evidence 
shall be admissible under this rule 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. 
Such evidence is still subject to challenge under MRE 403.
    (d) For purposes of this rule, the term ``sexual offense'' includes 
any sexual misconduct punishable under the Uniform Code of Military 
Justice, federal law or state law. ``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.
    (a) M.R.E. 503(b) is amended by renumbering the existing subsection 
(2) to subsection (3) and inserting the following new subsection (2) 
after current M.R.E. 503(b)(1) to read as follows:
    ``(2) A ``clergyman's assistant'' is a person employed by or 
assigned to assist a clergyman in his capacity as a spiritual 
advisor.''
    (b) M.R.E. 504 is amended by inserting new subsection (d) after 
M.R.E. 504(c):
    ``(d) Definitions. As used in this rule:
    (1) The term ``a child of either'' includes not only a biological 
child, adopted child, or ward of one of the spouses but also includes a 
child who is under the permanent or temporary physical custody of one 
of the spouses, regardless of the existence of a legal parent-child 
relationship. For purposes of this rule only, a child is: (i) an 
individual under the age of eighteen; or (ii) an individual with a 
mental handicap who functions under the age of eighteen.''
    (2) The term ``temporary physical custody'' includes instances 
where a parent entrusts his or her child with another. There is no 
minimum amount of time necessary to establish temporary physical 
custody nor must there be a written agreement. Rather, the focus is on 
the parent's agreement with another for assuming parental 
responsibility for the child. For example, temporary physical custody 
may include instances where a parent entrusts another with the care of 
their child for recurring care or during absences due to temporary duty 
or deployments.
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Paragraph 43, Article 118, Murder, paragraph (a)(4) is amended 
to read:
    (a)(4) is engaged in the perpetration or attempted perpetration of 
burglary, sodomy, rape, rape of a child, aggravated sexual assault, 
aggravated sexual assault of a child, aggravated sexual contact, 
aggravated sexual abuse of a child, aggravated sexual contact with a 
child, robbery or aggravated arson; is guilty of murder, and shall 
suffer such punishment as a court martial may direct, except that if 
found guilty under clause (1) or (4), he shall suffer death or 
imprisonment for life as a court martial may direct.
    (b) Paragraph 43, Article 118, Murder, paragraph (b)(4) is amended 
to read:
    (b)(4) That, at the time of the killing, the accused was engaged in 
the perpetration or attempted perpetration of burglary, sodomy, rape, 
rape of a child, aggravated sexual assault, aggravated sexual assault 
of a child, aggravated sexual contact, aggravated sexual abuse of a 
child, aggravated sexual contact with a child, robbery, or aggravated 
arson.
    (c) Paragraph 44, Article 119, Manslaughter, paragraph (b)(2)(d), 
is amended to read:
    (b)(2)(d) That this act or omission of the accused constituted 
culpable negligence, or occurred while the accused was perpetrating or 
attempting to perpetrate an offense directly affecting the person other 
than burglary, sodomy, rape, rape of a child, aggravated sexual 
assault, aggravated sexual assault of a child, aggravated sexual 
contact, aggravated sexual abuse of a child, aggravated sexual contact 
with a child, robbery, or aggravated arson.
    (d) Paragraph 45, Rape and Carnal Knowledge, is amended to read:
Article 120. Rape, Sexual Assault, and other Sexual Misconduct
    a. Text. See Article 120, UCMJ.
    (a) Rape. Any person subject to this chapter who causes another 
person of any age to engage in a sexual act by--
    (1) Using force against that other person;
    (2) Causing grievous bodily harm to any person;
    (3) Threatening or placing that other person in fear that any 
person will be subjected to death, grievous bodily harm, or kidnapping;
    (4) Rendering another person unconscious; or
    (5) Administering to another person by force or threat of force, or 
without the knowledge or permission of that person, a drug, intoxicant, 
or other similar substance and thereby substantially impairs the 
ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.
    (b) Rape of a child. Any person subject to this chapter who--
    (1) Engages in a sexual act with a child who has not attained the 
age of 12 years; or
    (2) Engages in a sexual act under the circumstances described in 
subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial 
may direct.
    (c) Aggravated sexual assault. Any person subject to this chapter 
who--
    (1) Causes another person of any age to engage in a sexual act by--
    (A) Threatening or placing that other person in fear (other than by 
threatening or placing that other person in fear that any person will 
be subjected to death, grievous bodily harm, or kidnapping); or
    (B) Causing bodily harm; or
    (2) Engages in a sexual act with another person of any age if that 
other person is substantially incapacitated or substantially incapable 
of--

[[Page 78141]]

    (A) Appraising the nature of the sexual act;
    (B) Declining participation in the sexual act; or
    (C) Communicating unwillingness to engage in the sexual act;

is guilty of aggravated sexual assault and shall be punished as a 
court-martial may direct.

    (d) Aggravated sexual assault of a child. Any person subject to 
this chapter who engages in a sexual act with a child who has attained 
the age of 12 years is guilty of aggravated sexual assault of a child 
and shall be punished as a court-martial may direct.
    (e) Aggravated sexual contact. Any person subject to this chapter 
who engages in or causes sexual contact with or by another person, if 
to do so would violate subsection (a) (rape) had the sexual contact 
been a sexual act, is guilty of aggravated sexual contact and shall be 
punished as a court-martial may direct.
    (f) Aggravated sexual abuse of a child. Any person subject to this 
chapter who engages in a lewd act with a child is guilty of aggravated 
sexual abuse of a child and shall be punished as a court-martial may 
direct.
    (g) Aggravated sexual contact with a child. Any person subject to 
this chapter who engages in or causes sexual contact with or by another 
person, if to do so would violate subsection (b) (rape of a child) had 
the sexual contact been a sexual act, is guilty of aggravated sexual 
contact with a child and shall be punished as a court-martial may 
direct.
    (h) Abusive sexual contact. Any person subject to this chapter who 
engages in or causes sexual contact with or by another person, if to do 
so would violate subsection (c) (aggravated sexual assault) had the 
sexual contact been a sexual act, is guilty of abusive sexual contact 
and shall be punished as a court-martial may direct.
    (i) Abusive sexual contact with a child. Any person subject to this 
chapter who engages in or causes sexual contact with or by another 
person, if to do so would violate subsection (d) (aggravated sexual 
assault of a child) had the sexual contact been a sexual act, is guilty 
of abusive sexual contact with a child and shall be punished as a 
court-martial may direct.
    (j) Indecent liberty with a child. Any person subject to this 
chapter who engages in indecent liberty in the physical presence of a 
child--
    (1) With the intent to arouse, appeal to, or gratify the sexual 
desire of any person; or
    (2) With the intent to abuse, humiliate, or degrade any person;

is guilty of indecent liberty with a child and shall be punished as a 
court-martial may direct.
    (k) Indecent act. Any person subject to this chapter who engages in 
indecent conduct is guilty of an indecent act and shall be punished as 
a court-martial may direct.
    (l) Forcible pandering. Any person subject to this chapter who 
compels another person to engage in an act of prostitution with another 
person to be directed to said person is guilty of forcible pandering 
and shall be punished as a court-martial may direct.
    (m) Wrongful sexual contact. Any person subject to this chapter 
who, without legal justification or lawful authorization, engages in 
sexual contact with another person without that other person's 
permission is guilty of wrongful sexual contact and shall be punished 
as a court-martial may direct.
    (n) Indecent exposure. Any person subject to this chapter who 
intentionally exposes, in an indecent manner, in any place where the 
conduct involved may reasonably be expected to be viewed by people 
other than members of the actor's family or household, the genitalia, 
anus, buttocks, or female areola or nipple is guilty of indecent 
exposure and shall by punished as a court-martial may direct.
    (o) Age of child.
    (1) Twelve years. In a prosecution under subsection (b) (rape of a 
child), subsection (g) (aggravated sexual contact with a child), or 
subsection (j) (indecent liberty with a child), it need not be proven 
that the accused knew that the other person engaging in the sexual act, 
contact, or liberty had not attained the age of 12 years. It is not an 
affirmative defense that the accused reasonably believed that the child 
had attained the age of 12 years.
    (2) Sixteen years. In a prosecution under subsection (d) 
(aggravated sexual assault of a child), subsection (f) (aggravated 
sexual abuse of a child), subsection (i) (abusive sexual contact with a 
child), or subsection (j) (indecent liberty with a child), it need not 
be proven that the accused knew that the other person engaging in the 
sexual act, contact, or liberty had not attained the age of 16 years. 
Unlike in paragraph (1), however, it is an affirmative defense that the 
accused reasonably believed that the child had attained the age of 16 
years.
    (p) Proof of threat. In a prosecution under this section, in 
proving that the accused made a threat, it need not be proven that the 
accused actually intended to carry out the threat.
    (q) Marriage.
    (1) In general. In a prosecution under paragraph (2) of subsection 
(c) (aggravated sexual assault), or under subsection (d) (aggravated 
sexual assault of a child), subsection (f) (aggravated sexual abuse of 
a child), subsection (i) (abusive sexual contact with a child), 
subsection (j) (indecent liberty with a child), subsection (m) 
(wrongful sexual contact), or subsection (n) (indecent exposure), it is 
an affirmative defense that the accused and the other person when they 
engaged in the sexual act, sexual contact, or sexual conduct are 
married to each other.
    (2) Definition. For purposes of this subsection, a marriage is a 
relationship, recognized by the laws of a competent State or foreign 
jurisdiction, between the accused and the other person as spouses. A 
marriage exists until it is dissolved in accordance with the laws of a 
competent State or foreign jurisdiction.
    (3) Exception. Paragraph (1) shall not apply if the accused's 
intent at the time of the sexual conduct is to abuse, humiliate, or 
degrade any person.
    (r) Consent and mistake of fact as to consent. Lack of permission 
is an element of the offense in subsection (m) (wrongful sexual 
contact). Consent and mistake of fact as to consent are not an issue, 
or an affirmative defense, in a prosecution under any other subsection, 
except they are an affirmative defense for the sexual conduct in issue 
in a prosecution under subsection (a) (rape), subsection (c) 
(aggravated sexual assault), subsection (e) (aggravated sexual 
contact), and subsection (h) (abusive sexual contact).
    (s) Other affirmative defenses not precluded. The enumeration in 
this section of some affirmative defenses shall not be construed as 
excluding the existence of others.
    (t) Definitions. In this section:
    (1) Sexual act. The term `sexual act' means--
    (A) Contact between the penis and the vulva, and for purposes of 
this subparagraph contact involving the penis occurs upon penetration, 
however slight; or
    (B) The penetration, however slight, of the genital opening of 
another by a hand or finger or by any object, with an intent to abuse, 
humiliate, harass, or degrade any person or to arouse or gratify the 
sexual desire of any person.
    (2) Sexual contact. 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 another person, or 
intentionally causing another person to touch, either directly or 
through the clothing, the genitalia, anus,

[[Page 78142]]

groin, breast, inner thigh, or buttocks of any person, with an intent 
to abuse, humiliate, or degrade any person or to arouse or gratify the 
sexual desire of any person.
    (3) Grievous bodily harm. The term `grievous bodily harm' means 
serious bodily injury. It includes fractured or dislocated bones, deep 
cuts, torn members of the body, serious damage to internal organs, and 
other severe bodily injuries. It does not include minor injuries such 
as a black eye or a bloody nose. It is the same level of injury as in 
section 928 (article 128) of this chapter, and a lesser degree of 
injury than in section 2246(4) of title 18.
    (4) Dangerous weapon or object. The term `dangerous weapon or 
object' means--
    (A) Any firearm, loaded or not, and whether operable or not;
    (B) Any other weapon, device, instrument, material, or substance, 
whether animate or inanimate, that in the manner it is used, or is 
intended to be used, is known to be capable of producing death or 
grievous bodily harm; or
    (C) Any object fashioned or utilized in such a manner as to lead 
the victim under the circumstances to reasonably believe it to be 
capable of producing death or grievous bodily harm.
    (5) Force. The term `force' means action to compel submission of 
another or to overcome or prevent another's resistance by--
    (A) The use or display of a dangerous weapon or object;
    (B) The suggestion of possession of a dangerous weapon or object 
that is used in a manner to cause another to believe it is a dangerous 
weapon or object; or
    (C) Physical violence, strength, power, or restraint applied to 
another person, sufficient that the other person could not avoid or 
escape the sexual conduct.
    (6) Threatening or placing that other person in fear. The term 
`threatening or placing that other person in fear' under paragraph (3) 
of subsection (a) (rape), or under subsection (e) (aggravated sexual 
contact), means a communication or action that is of sufficient 
consequence to cause a reasonable fear that non-compliance will result 
in the victim or another person being subjected to death, grievous 
bodily harm, or kidnapping.
    (7) Threatening or placing that other person in fear.
    (A) In general. The term `threatening or placing that other person 
in fear' under paragraph (1)(A) of subsection (c) (aggravated sexual 
assault), or under subsection (h) (abusive sexual contact), means a 
communication or action that is of sufficient consequence to cause a 
reasonable fear that non-compliance will result in the victim or 
another being subjected to a lesser degree of harm than death, grievous 
bodily harm, or kidnapping.
    (B) Inclusions. Such lesser degree of harm includes--
    (i) Physical injury to another person or to another person's 
property; or
    (ii) A threat--
    (I) To accuse any person of a crime;
    (II) To expose a secret or publicize an asserted fact, whether true 
or false, tending to subject some person to hatred, contempt or 
ridicule; or
    (III) Through the use or abuse of military position, rank, or 
authority, to affect or threaten to affect, either positively or 
negatively, the military career of some person.
    (8) Bodily harm. The term `bodily harm' means any offensive 
touching of another, however slight.
    (9) Child. The term `child' means any person who has not attained 
the age of 16 years.
    (10) Lewd act. The term `lewd act' means--
    (A) The intentional touching, not through the clothing, of the 
genitalia of another person, with an intent to abuse, humiliate, or 
degrade any person, or to arouse or gratify the sexual desire of any 
person; or
    (B) Intentionally causing another person to touch, not through the 
clothing, the genitalia of any person with an intent to abuse, 
humiliate or degrade any person, or to arouse or gratify the sexual 
desire of any person.
    (11) Indecent liberty. The term `indecent libert' means indecent 
conduct, but physical contact is not required. It includes one who with 
the requisite intent exposes one's genitalia, anus, buttocks, or female 
areola or nipple to a child. An indecent liberty may consist of 
communication of indecent language as long as the communication is made 
in the physical presence of the child. If words designed to excite 
sexual desire are spoken to a child, or a child is exposed to or 
involved in sexual conduct, it is an indecent liberty; the child's 
consent is not relevant.
    (12) Indecent conduct. The term ``indecent conduct'' means that 
form of immorality relating to sexual impurity which is grossly vulgar, 
obscene, and repugnant to common propriety, and tends to excite sexual 
desire or deprave morals with respect to sexual relations. Indecent 
conduct includes observing, or making a videotape, photograph, motion 
picture, print, negative, slide, or other mechanically, electronically, 
or chemically reproduced visual material, without another person's 
consent, and contrary to that other person's reasonable expectation of 
privacy, of--
    (A) That other person's genitalia, anus, or buttocks, or (if that 
other person is female) that person's areola or nipple; or
    (B) That other person while that other person is engaged in a 
sexual act, sodomy (under section 925 (article 125)), or sexual 
contact.
    (13) Act of prostitution. The term `act of prostitution' means a 
sexual act, sexual contact, or lewd act for the purpose of receiving 
money or other compensation.
    (14) Consent. The term `consent' means words or overt acts 
indicating a freely given agreement to the sexual conduct at issue by a 
competent person. An expression of lack of consent through words or 
conduct means there is no consent. Lack of verbal or physical 
resistance or submission resulting from the accused's use of force, 
threat of force, or placing another person in fear does not constitute 
consent. A current or previous dating relationship by itself or the 
manner of dress of the person involved with the accused in the sexual 
conduct at issue shall not constitute consent. A person cannot consent 
to sexual activity if--
    (A) Under 16 years of age; or
    (B) Substantially incapable of--
    (i) Appraising the nature of the sexual conduct at issue due to--
    (I) Mental impairment or unconsciousness resulting from consumption 
of alcohol, drugs, a similar substance, or otherwise; or
    (II) Mental disease or defect which renders the person unable to 
understand the nature of the sexual conduct at issue;
    (ii) Physically declining participation in the sexual conduct at 
issue; or
    (iii) Physically communicating unwillingness to engage in the 
sexual conduct at issue.
    (15) Mistake of fact as to consent. The term `mistake of fact as to 
consent' means the accused held, as a result of ignorance or mistake, 
an incorrect belief that the other person engaging in the sexual 
conduct consented. The ignorance or mistake must have existed in the 
mind of the accused and must have been reasonable under all the 
circumstances. To be reasonable the ignorance or mistake must have been 
based on information, or lack of it, which would indicate to a 
reasonable person that the other person consented. Additionally, the 
ignorance or mistake cannot be based on the negligent failure to 
discover the true facts. Negligence is the absence of due care. Due 
care is what a reasonably careful person would do under the same or 
similar

[[Page 78143]]

circumstances. The accused's state of intoxication, if any, at the time 
of the offense is not relevant to mistake of fact. A mistaken belief 
that the other person consented must be that which a reasonably 
careful, ordinary, prudent, sober adult would have had under the 
circumstances at the time of the offense.
    (16) Affirmative defense. The term `affirmative defense' means any 
special defense which, although not denying that the accused committed 
the objective acts constituting the offense charged, denies, wholly, or 
partially, criminal responsibility for those acts. The accused has the 
burden of proving the affirmative defense by a preponderance of 
evidence. After the defense meets this burden, the prosecution shall 
have the burden of proving beyond a reasonable doubt that the 
affirmative defense did not exist.''.
    b. Elements.
    (1) Rape.
    (a) Rape by using force.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act by using force against that other person.
    (b) Rape by causing grievous bodily harm.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act by causing grievous bodily harm to any person.
    (c) Rape by using threats or placing in fear.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act by threatening or placing that other person in 
fear that any person will be subjected to death, grievous bodily harm, 
or kidnapping.
    (d) Rape by rendering another unconscious.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act by rendering that other person unconscious.
    (e) Rape by administration of drug, intoxicant, or other similar 
substance.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act by administering to that other person a drug, 
intoxicant, or other similar substance;
    (ii) That the accused administered the drug, intoxicant or other 
similar substance by force or threat of force or without the knowledge 
or permission of that other person; and
    (iii) That, as a result, that other person's ability to appraise or 
control conduct was substantially impaired.
    (2) Rape of a child.
    (a) Rape of a child who has not attained the age of 12 years.
    (i) That the accused engaged in a sexual act with a child; and
    (ii) That at the time of the sexual act the child had not attained 
the age of twelve years.
    (b) Rape of a child who has attained the age of 12 years but has 
not attained the age of 16 years by using force.
    (i) That the accused engaged in a sexual act with a child;
    (ii) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years; and
    (iii) That the accused did so by using force against that child.
    (c) Rape of a child who has attained the age of 12 years but has 
not attained the age of 16 years by causing grievous bodily harm.
    (i) That the accused engaged in a sexual act with a child;
    (ii) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years; and
    (iii) That the accused did so by causing grievous bodily harm to 
any person.
    (d) Rape of a child who has attained the age of 12 years but has 
not attained the age of 16 years by using threats or placing in fear.
    (i) That the accused engaged in a sexual act with a child;
    (ii) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years; and
    (iii) That the accused did so by threatening or placing that child 
in fear that any person will be subjected to death, grievous bodily 
harm, or kidnapping.
    (e) Rape of a child who has attained the age of 12 years but has 
not attained the age of 16 years by rendering that child unconscious.
    (i) That the accused engaged in a sexual act with a child;
    (ii) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years; and
    (iii) That the accused did so by rendering that child unconscious.
    (f) Rape of a child who has attained the age of 12 years but has 
not attained the age of 16 years by administration of drug, intoxicant, 
or other similar substance.
    (i) That the accused engaged in a sexual act with a child;
    (ii) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years; and
    (iii) (a) That the accused did so by administering to that child a 
drug, intoxicant, or other similar substance;
    (b) That the accused administered the drug, intoxicant, or other 
similar substance by force or threat of force or without the knowledge 
or permission of that child; and
    (c) That, as a result, that child's ability to appraise or control 
conduct was substantially impaired.
    (3) Aggravated sexual assault.
    (a) Aggravated sexual assault by using threats or placing in fear.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act; and
    (ii) That the accused did so by threatening or placing that other 
person in fear that any person would be subjected to bodily harm or 
other harm (other than by threatening or placing that other person in 
fear that any person would be subjected to death, grievous bodily harm, 
or kidnapping).
    (b) Aggravated sexual assault by causing bodily harm.
    (i) That the accused caused another person, who is of any age, to 
engage in a sexual act; and
    (ii) That the accused did so by causing bodily harm to another 
person.
    (c) Aggravated sexual assault upon a person substantially 
incapacitated or substantially incapable of appraising the act, 
declining participation, or communicating unwillingness.
    (i) That the accused engaged in a sexual act with another person, 
who is of any age; and
    (Note: add one of the following elements)
    (ii) That the other person was substantially incapacitated;
    (iii) That the other person was substantially incapable of 
appraising the nature of the sexual act;
    (iv) That the other person was substantially incapable of declining 
participation in the sexual act; or
    (v) That the other person was substantially incapable of 
communicating unwillingness to engage in the sexual act.
    (4) Aggravated sexual assault of a child who has attained the age 
of 12 years but has not attained the age of 16 years.
    (a) That the accused engaged in a sexual act with a child; and
    (b) That at the time of the sexual act the child had attained the 
age of 12 years but had not attained the age of 16 years.
    (5) Aggravated sexual contact.
    (a) Aggravated sexual contact by using force.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by using force against that other 
person.
    (b) Aggravated sexual contact by causing grievous bodily harm.

[[Page 78144]]

    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by causing grievous bodily harm to 
any person.
    (c) Aggravated sexual contact by using threats or placing in fear.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by threatening or placing that other 
person in fear that any person will be subjected to death, grievous 
bodily harm, or kidnapping.
    (d) Aggravated sexual contact by rendering another unconscious.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by rendering that other person 
unconscious.
    (e) Aggravated sexual contact by administration of drug, 
intoxicant, or other similar substance.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii)(a) That the accused did so by administering to that other 
person a drug, intoxicant, or other similar substance;
    (b) That the accused administered the drug, intoxicant, or other 
similar substance by force or threat of force or without the knowledge 
or permission of that other person; and
    (c) That, as a result, that other person's ability to appraise or 
control conduct was substantially impaired.
    (6) Aggravated sexual abuse of a child.
    (a) That the accused engaged in a lewd act; and
    (b) That the act was committed with a child who has not attained 
the age of 16 years.
    (7) Aggravated Sexual Contact with a Child.
    (a) Aggravated sexual contact with a child who has not attained the 
age of 12 years.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had not 
attained the age of twelve years.
    (b) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by using force.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years; and
    (iv) That the accused did so by using force against that child.
    (c) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by causing 
grievous bodily harm.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years; and
    (iv) That the accused did so by causing grievous bodily harm to any 
person.
    (d) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by using threats 
or placing in fear.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years; and
    (iv) That the accused did so by threatening or placing that child 
or that other person in fear that any person will be subjected to 
death, grievous bodily harm, or kidnapping.
    (e) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by rendering 
another or that child unconscious.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years; and
    (iv) That the accused did so by rendering that child or that other 
person unconscious.
    (f) Aggravated sexual contact with a child who has attained the age 
of 12 years but has not attained the age of 16 years by administration 
of drug, intoxicant, or other similar substance.
    (i) That the accused engaged in sexual contact with a child; or
    (ii) That the accused caused sexual contact with or by a child or 
by another person with a child; and
    (iii) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years; and
    (iv) (a) That the accused did so by administering to that child or 
that other person a drug, intoxicant, or other similar substance;
    (b) That the accused administered the drug, intoxicant, or other 
similar substance by force or threat of force or without the knowledge 
or permission of that child or that other person; and
    (c) That, as a result, that child's or that other person's ability 
to appraise or control conduct was substantially impaired.
    (8) Abusive sexual contact.
    (a) Abusive sexual contact by using threats or placing in fear.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by threatening or placing that other 
person in fear that any person would be subjected to bodily harm or 
other harm (other than by threatening or placing that other person in 
fear that any person would be subjected to death, grievous bodily harm, 
or kidnapping).
    (b) Abusive sexual contact by causing bodily harm.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (iii) That the accused did so by causing bodily harm to another 
person.
    (c) Abusive sexual contact upon a person substantially 
incapacitated or substantially incapable of appraising the act, 
declining participation, or communicating unwillingness.
    (i) That the accused engaged in sexual contact with another person; 
or
    (ii) That the accused caused sexual contact with or by another 
person; and
    (Note: add one of the following elements)
    (iii) That the other person was substantially incapacitated;
    (iv) That the other person was substantially incapable of 
appraising the nature of the sexual contact;
    (v) That the other person was substantially incapable of declining 
participation in the sexual contact; or
    (vi) That the other person was substantially incapable of 
communicating unwillingness to engage in the sexual contact.
    (9) Abusive sexual contact with a child.
    (a) That the accused engaged in sexual contact with a child; or

[[Page 78145]]

    (b) That the accused caused sexual contact with or by a child or by 
another person with a child; and
    (c) That at the time of the sexual contact the child had attained 
the age of 12 years but had not attained the age of 16 years.
    (10) Indecent liberty with a child.
    (a) That the accused committed a certain act or communication;
    (b) That the act or communication was indecent;
    (c) That the accused committed the act or communication in the 
physical presence of a certain child;
    (d) That the child was under 16 years of age; and
    (e) That the accused committed the act or communication with the 
intent to:
    (i) arouse, appeal to, or gratify the sexual desires of any person; 
or
    (ii) abuse, humiliate, or degrade any person.
    (11) Indecent act.
    (a) That the accused engaged in certain conduct; and
    (b) That the conduct was indecent conduct.
    (12) Forcible pandering.
    (a) That the accused compelled a certain person to engage in an act 
of prostitution; and
    (b) That the accused directed another person to said person, who 
then engaged in an act of prostitution.
    (13) Wrongful sexual contact.
    (a) That the accused had sexual contact with another person;
    (b) That the accused did so without that other person's permission; 
and
    (c) That the accused had no legal justification or lawful 
authorization for that sexual contact.
    (14) Indecent exposure.
    (a) That the accused exposed his or her genitalia, anus, buttocks, 
or female areola or nipple;
    (b) That the accused's exposure was in an indecent manner;
    (c) That the exposure occurred in a place where the conduct 
involved could reasonably be expected to be viewed by people other than 
the accused's family or household; and
    (d) That the exposure was intentional.
    c. Explanation.
    (1) Definitions. The terms are defined in ] 45a(t), supra.
    (2) Character of victim. See Military Rule of Evidence 412 
concerning rules of evidence relating to the character of the victim of 
an alleged sexual offense.
    (3) Indecent. In conduct cases, ``Indecent'' generally signifies 
that form of immorality relating to sexual impurity which is not only 
grossly vulgar, obscene, and repugnant to common propriety, but also 
tends to excite lust and deprave the morals with respect to sexual 
relations. Language is indecent if it tends reasonably to corrupt 
morals or incite libidinous thoughts. The language must violate 
community standards.
    d. Lesser included offenses. The following lesser included offenses 
are based on internal cross-references provided in the statutory text 
of Article 120. See subsection (e) for or a further listing of possible 
LIOs.
    (1) Rape.
    (a) Article 120--aggravated sexual contact
    (b) Article 134--assault with intent to commit rape
    (c) Article 128--aggravated assault, assault, assault consummated 
by a battery
    (d) Article 80--attempts
    (2) Rape of a Child.
    (a) Article 120--aggravated sexual contact with a child; indecent 
act
    (b) Article 134--assault with intent to commit rape
    (c) Article 128--aggravated assault; assault; assault consummated 
by a battery; assault consummated by a battery upon a child under 16
    (d) Article 80--attempts
    (3) Aggravated Sexual Assault.
    (a) Article 120--abusive sexual contact
    (b) Article 128--aggravated assault, assault, assault consummated 
by a battery
    (c) Article 80--attempts
    (4) Aggravated Sexual Assault of a Child.
    (a) Article 120--abusive sexual contact with a child; indecent act
    (b) Article 128--aggravated assault; assault; assault consummated 
by a battery; assault consummated by a battery upon a child under 16
    (c) Article 80--attempts
    (5) Aggravated Sexual Contact.
    (a) Article 128--aggravated assault; assault; assault consummated 
by a battery
    (b) Article 80--attempts
    (6) Aggravated Sexual Abuse of a Child.
    (a) Article 120--indecent act
    (b) Article 128--assault; assault consummated by a battery; assault 
consummated by a battery upon a child under 16
    (c) Article 80--attempts
    (7) Aggravated Sexual Contact with a Child.
    (a) Article 120--indecent act
    (b) Article 128--assault; assault consummated by a battery; assault 
consummated by a battery upon a child under 16
    (c) Article 80--attempts
    (8) Abusive Sexual Contact.
    (a) Article 128--assault; assault consummated by a battery
    (b) Article 80--attempts
    (9) Abusive Sexual Contact with a Child.
    (a) Article 120--indecent act
    (b) Article 128--assault; assault consummated by a battery; assault 
consummated by a battery upon a child under 16
    (c) Article 80--attempts
    (10) Indecent Liberty with a Child.
    (a) Article 120--indecent act
    (b) Article 80--attempts
    (11) Indecent Act. Article 80 attempts
    (12) Forcible Pandering. Article 80 attempts
    (13) Wrongful Sexual Contact. Article 80 attempts
    (14) Indecent Exposure. Article 80 attempts
    e. Additional Lesser Included Offenses. Depending on the factual 
circumstances in each case, to include the type of act and level of 
force involved, the following offenses may be considered lesser 
included in addition to those offenses listed in subsection d. (See 
subsection (d) for a listing of the offenses that are specifically 
cross-referenced within the statutory text of Article 120.) The 
elements of the proposed lesser included offense should be compared 
with the elements of the greater offense to determine if the elements 
of the lesser offense are derivative of the greater offense and vice 
versa. See Appendix 23 for further explanation of lesser included 
offenses.
    (1)(a) Rape by using force. Article 120--indecent act; wrongful 
sexual contact
    (1)(b) Rape by causing grievous bodily harm. Article 120 aggravated 
sexual assault by causing bodily harm; abusive sexual contact by 
causing bodily harm; indecent act; wrongful sexual contact
    (1)(c) Rape by using threats or placing in fear. Article 120 
aggravated sexual assault by using threats or placing in fear; abusive 
sexual contact by using threats or placing in fear; indecent act; 
wrongful sexual contact
    (1)(d) Rape by rendering another unconscious. Article 120 
aggravated sexual assault upon a person substantially incapacitated; 
abusive sexual contact upon a person substantially incapacitated; 
indecent act; wrongful sexual contact.
    (1)(e) Rape by administration of drug, intoxicant, or other similar 
substance. Article 120 aggravated sexual assault upon a person 
substantially incapacitated; abusive sexual contact upon a person 
substantially incapacitated; indecent act; wrongful sexual contact.
    (2)(a)-(f) Rape of a Child who has not attained 12 years; Rape of a 
child who has attained the age of 12 years but has

[[Page 78146]]

not attained the age of 16 years. Article 120--aggravated sexual 
assault of a child; aggravated sexual abuse of a child; abusive sexual 
contact with a child; indecent liberty with a child; wrongful sexual 
contact
    (3) Aggravated Sexual Assault. Article 120--wrongful sexual 
contact; indecent act
    (4) Aggravated Sexual Assault of a Child. Article 120--aggravated 
sexual abuse of a child; indecent liberty with a child; wrongful sexual 
contact
    (5)(a) Aggravated Sexual Contact by force. Article 120--indecent 
act; wrongful sexual contact
    (5)(b) Aggravated Sexual Contact by causing grievous bodily harm. 
Article 120--abusive sexual contact by causing bodily harm; indecent 
act; wrongful sexual contact
    (5)(c) Aggravated Sexual Contact by using threats or placing in 
fear. Article 120--abusive sexual contact by using threats or placing 
in fear; indecent act; wrongful sexual contact
    (5)(d) Aggravated Sexual Contact by rendering another unconscious. 
Article 120 abusive sexual contact upon a person substantially 
incapacitated; indecent act; wrongful sexual contact
    (5)(e) Aggravated Sexual Contact by administration of drug, 
intoxicant, or other similar substance. Article 120 abusive sexual 
contact upon a person substantially incapacitated; indecent act; 
wrongful sexual contact
    (6) Aggravated Sexual Abuse of a Child. Article 120--aggravated 
sexual contact with a child; aggravated sexual abuse of a child; 
indecent liberty with a child; wrongful sexual contact
    (7) Aggravated Sexual contact with a Child. Article 120--abusive 
sexual contact with a child; indecent liberty with a child; wrongful 
sexual contact
    (8) Abusive Sexual Contact. Article 120--wrongful sexual contact; 
indecent act
    (9) Abusive Sexual Contact with a Child. Article 120--indecent 
libe