[Title 3 CFR 13086]
[Code of Federal Regulations (annual edition) - January 1, 1999 Edition]
[Title 3 - Presidential Documents]
[Executive Order 13086 - Executive Order 13086 of May 27, 1998]
[From the U.S. Government Printing Office]
3Presidential Documents11999-01-011999-01-01falseExecutive Order 13086 of May 27, 199813086Executive Order 13086Presidential Documents
Executive Order 13086 of May 27, 1998
1998 Amendments to the Manual for Courts-Martial, United States
By the authority vested in me as President by the Constitution and the
laws of the United States of America, including chapter 47 of title 10,
United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-
946), in order to prescribe amendments to the Manual for Courts-Martial,
United States, prescribed by Executive Order No. 12473, as amended by
Executive Order No. 12484, Executive Order No. 12550, Executive Order
No. 12586, Executive Order No. 12708, Executive Order No. 12767,
Executive Order No. 12888, Executive Order No. 12936, and Executive
Order No. 12960, it is hereby ordered as follows:
Section 1. Part II of the Manual for Courts-Martial, United States, is
amended as follows:
a. R.C.M. 305(g) through 305(k) are amended to read as follows:
``(g) Who may direct release from confinement. Any commander of a
prisoner, an officer appointed under regulations of the Secretary
concerned to conduct the review under subsections (i) and/or (j) of this
rule or, once charges have been referred, a military judge detailed to
the court-martial to which the charges against the accused have been
referred, may direct release from pretrial confinement. For the purposes
of this subsection, ``any commander'' includes the immediate or higher
commander of the prisoner and the commander of the installation on which
the confinement facility is located.
(h) Notification and action by commander.
(1) Report. Unless the commander of the prisoner ordered the
pretrial confinement, the commissioned, warrant, noncommissioned, or
petty officer into whose charge the prisoner was committed shall, within
24 hours after that commitment, cause a report to be made to the
commander that shall contain the name of the prisoner, the offenses
charged against the prisoner, and the name of the person who ordered or
authorized confinement.
(2) Action by commander.
(A) Decision. Not later than 72 hours after the commander's
ordering of a prisoner into pretrial confinement or, after receipt of a
report that a member of the commander's unit or organization has been
confined, whichever situation is applicable, the commander shall decide
whether pretrial
[[Page 156]]
confinement will continue. A commander's compliance with this subsection
may also satisfy the 48-hour probable cause determination of subsection
R.C.M. 305(i)(1) below, provided the commander is a neutral and detached
officer and acts within 48 hours of the imposition of confinement under
military control. Nothing in subsections R.C.M. 305(d), R.C.M.
305(i)(1), or this subsection prevents a neutral and detached commander
from completing the 48-hour probable cause determination and the 72-hour
commander's decision immediately after an accused is ordered into
pretrial confinement.
(B) Requirements for confinement. The commander shall direct the
prisoner's release from pretrial confinement unless the commander
believes upon probable cause, that is, upon reasonable grounds, that:
(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) The prisoner will not appear at trial, pretrial hearing,
or investigation, or
(b) The prisoner will engage in serious criminal misconduct;
and
(iv) Less severe forms of restraint are inadequate.
Serious criminal misconduct includes intimidation of witnesses
or other obstruction of justice, serious injury to others, or other
offenses that pose a serious threat to the safety of the community or to
the effectiveness, morale, discipline, readiness, or safety of the
command, or to the national security of the United States. As used in
this rule, ``national security'' means the national defense and foreign
relations of the United States and specifically includes: military or
defense advantage over any foreign nation or group of nations; a
favorable foreign relations position; or a defense posture capable of
successfully resisting hostile or destructive action from within or
without, overt or covert.
(C) 72-hour memorandum. If continued pretrial confinement is
approved, the commander shall prepare a written memorandum that states
the reasons for the conclusion that the requirements for confinement in
subsection (h)(2)(B) of this rule have been met. This memorandum may
include hearsay and may incorporate by reference other documents, such
as witness statements, investigative reports, or official records. This
memorandum shall be forwarded to the 7-day reviewing officer under
subsection (i)(2) of this rule. If such a memorandum was prepared by the
commander before ordering confinement, a second memorandum need not be
prepared; however, additional information may be added to the memorandum
at any time.
(i) Procedures for review of pretrial confinement.
(1) 48-hour probable cause determination. Review of the adequacy
of probable cause to continue pretrial confinement shall be made by a
neutral and detached officer within 48 hours of imposition of
confinement under military control. If the prisoner is apprehended by
civilian authorities and remains in civilian custody at the request of
military authorities, reasonable efforts will be made to bring the
prisoner under military control in a timely fashion.
[[Page 157]]
(2) 7-day review of pretrial confinement. Within 7 days of the
imposition of confinement, a neutral and detached officer appointed in
accordance with regulations prescribed by the Secretary concerned shall
review the probable cause determination and necessity for continued
pretrial confinement. In calculating the number of days of confinement
for purposes of this rule, the initial date of confinement under
military control shall count as one day and the date of the review shall
also count as one day.
(A) Nature of the 7-day review.
(i) Matters considered. The review under this subsection shall
include a review of the memorandum submitted by the prisoner's commander
under subsection (h)(2)(C) of this rule. Additional written matters may
be considered, including any submitted by the accused. The prisoner and
the prisoner's counsel, if any, shall be allowed to appear before the 7-
day reviewing officer and make a statement, if practicable. A
representative of the command may also appear before the reviewing
officer to make a statement.
(ii) Rules of evidence. Except for Mil. R. Evid., Section V
(Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of
Evidence shall not apply to the matters considered.
(iii) Standard of proof. The requirements for confinement
under subsection (h)(2)(B) of this rule must be proved by a
preponderance of the evidence.
(B) Extension of time limit. The 7-day reviewing officer may,
for good cause, extend the time limit for completion of the review to 10
days after the imposition of pretrial confinement.
(C) Action by 7-day reviewing officer. Upon completion of
review, the reviewing officer shall approve continued confinement or
order immediate release.
(D) Memorandum. The 7-day reviewing officer's conclusions,
including the factual findings on which they are based, shall be set
forth in a written memorandum. A copy of the memorandum and of all
documents considered by the 7-day reviewing officer shall be maintained
in accordance with regulations prescribed by the Secretary concerned and
provided to the accused or the Government on request.
(E) Reconsideration of approval of continued confinement. The 7-
day reviewing officer shall upon request, and after notice to the
parties, reconsider the decision to confine the prisoner based upon any
significant information not previously considered.
(j) Review by military judge. Once the charges for which the accused
has been confined are referred to trial, the military judge shall review
the propriety of the pretrial confinement upon motion for appropriate
relief.
(1) Release. The military judge shall order release from pretrial
confinement only if:
(A) The 7-day reviewing officer's decision was an abuse of
discretion, and there is not sufficient information presented to the
military judge justifying continuation of pretrial confinement under
subsection (h)(2)(B) of this rule;
[[Page 158]]
(B) Information not presented to the 7-day reviewing officer
establishes that the prisoner should be released under subsection
(h)(2)(B) of this rule; or
(C) The provisions of subsection (i)(1) or (2) of this rule have
not been complied with and information presented to the military judge
does not establish sufficient grounds for continued confinement under
subsection (h)(2)(B) of this rule.
(2) Credit. The military judge shall order administrative credit
under subsection (k) of this rule for any pretrial confinement served as
a result of an abuse of discretion or failure to comply with the
provisions of subsections (f), (h), or (i) of this rule.
(k) Remedy. The remedy for noncompliance with subsections (f), (h),
(i), or (j) of this rule shall be an administrative credit against the
sentence adjudged for any confinement served as the result of such
noncompliance. Such credit shall be computed at the rate of 1 day credit
for each day of confinement served as a result of such noncompliance.
The military judge may order additional credit for each day of pretrial
confinement that involves an abuse of discretion or unusually harsh
circumstances. This credit is to be applied in addition to any other
credit to which the accused may be entitled as a result of pretrial
confinement served. This credit shall be applied first against any
confinement adjudged. If no confinement is adjudged, or if the
confinement adjudged is insufficient to offset all the credit to which
the accused is entitled, the credit shall be applied against adjudged
hard labor without confinement, restriction, fine, and forfeiture of
pay, in that order, using the conversion formula under R.C.M. 1003(b)(6)
and (7). For purposes of this subsection, 1 day of confinement shall be
equal to 1 day of total forfeitures or a like amount of fine. The credit
shall not be applied against any other form of punishment.''
b. R.C.M. 405(e) is amended to read as follows:
``(e) Scope of investigation. The investigating officer shall
inquire into the truth and form of the charges, and such other matters
as may be necessary to make a recommendation as to the disposition of
the charges. If evidence adduced during the investigation indicates that
the accused committed an uncharged offense, the investigating officer
may investigate the subject matter of such offense and make a
recommendation as to its disposition, without the accused first having
been charged with the offense. The accused's rights under subsection (f)
are the same with regard to investigation of both charged and uncharged
offenses.''
c. R.C.M. 706(c)(2)(D) is amended to read as follows:
``(D) Is the accused presently suffering from a mental disease
or defect rendering the accused unable to understand the nature of the
proceedings against the accused or to conduct or cooperate intelligently
in the defense of the case?''
d. R.C.M. 707(b)(3) is amended by adding subsection (E) which reads as
follows:
``(E) Commitment of the incompetent accused. If the accused is
committed to the custody of the Attorney General for hospitalization as
provided in R.C.M. 909(f), all periods of such commitment shall be
excluded when determining whether the period in subsection (a) of this
rule has run. If, at the end of the period of commitment, the accused is
returned to the
[[Page 159]]
custody of the general court-martial convening authority, a new 120-day
time period under this rule shall begin on the date of such return to
custody.''
e. R.C.M. 707(c) is amended to read as follows:
``(c) Excludable delay. All periods of time during which appellate
courts have issued stays in the proceedings, or the accused is
hospitalized due to incompetence, or is otherwise in the custody of the
Attorney General, shall be excluded when determining whether the period
in subsection (a) of this rule has run. All other pretrial delays
approved by a military judge or the convening authority shall be
similarly excluded.''
f. R.C.M. 809(b)(1) is amended by deleting the last sentence, which
reads:
``In such cases, the regular proceedings shall be suspended while
the contempt is disposed of.''
g. R.C.M. 809(c) is amended to read as follows:
``(c) Procedure. The military judge shall in all cases determine
whether to punish for contempt and, if so, what the punishment shall be.
The military judge shall also determine when during the court-martial
the contempt proceedings shall be conducted; however, if the court-
martial is composed of members, the military judge shall conduct the
contempt proceedings outside the members' presence. The military judge
may punish summarily under subsection (b)(1) only if the military judge
recites the facts for the record and states that they were directly
witnessed by the military judge in the actual presence of the court-
martial. Otherwise, the provisions of subsection (b)(2) shall apply.''
h. R.C.M. 908(a) is amended to read as follows:
``(a) In general. In a trial by a court-martial over which a
military judge presides and in which a punitive discharge may be
adjudged, the United States may appeal an order or ruling that
terminates the proceedings with respect to a charge or specification, or
excludes evidence that is substantial proof of a fact material in the
proceedings, or directs the disclosure of classified information, or
that imposes sanctions for nondisclosure of classified information. The
United States may also appeal a refusal by the military judge to issue a
protective order sought by the United States to prevent the disclosure
of classified information or to enforce such an order that has
previously been issued by the appropriate authority. However, the United
States may not appeal an order or ruling that is, or amounts to, a
finding of not guilty with respect to the charge or specification.''
i. R.C.M. 909 is amended to read as follows:
``(a) In general. No person may be brought to trial by court-martial
if that person is presently suffering from a mental disease or defect
rendering him or her mentally incompetent to the extent that he or she
is unable to understand the nature of the proceedings against them or to
conduct or cooperate intelligently in the defense of the case.
(b) Presumption of capacity. A person is presumed to have the
capacity to stand trial unless the contrary is established.
(c) Determination before referral. If an inquiry pursuant to R.C.M.
706 conducted before referral concludes that an accused is suffering
from a mental disease or defect that renders him or her mentally
incompetent to stand trial, the convening authority before whom the
charges are pending for disposition may disagree with the conclusion and
take any action au
[[Page 160]]
thorized under R.C.M. 401, including referral of the charges to trial.
If that convening authority concurs with the conclusion, he or she shall
forward the charges to the general court-martial convening authority.
If, upon receipt of the charges, the general court-martial convening
authority similarly concurs, then he or she shall commit the accused to
the custody of the Attorney General. If the general court-martial
convening authority does not concur, that authority may take any action
that he or she deems appropriate in accordance with R.C.M. 407,
including referral of the charges to trial.
(d) Determination after referral. After referral, the military judge
may conduct a hearing to determine the mental capacity of the accused,
either sua sponte or upon request of either party. If an inquiry
pursuant to R.C.M. 706 conducted before or after referral concludes that
an accused is suffering from a mental disease or defect that renders him
or her mentally incompetent to stand trial, the military judge shall
conduct a hearing to determine the mental capacity of the accused. Any
such hearing shall be conducted in accordance with paragraph (e) of this
rule.
(e) Incompetence determination hearing.
(1) Nature of issue. The mental capacity of the accused is an
interlocutory question of fact.
(2) Standard. Trial may proceed unless it is established by a
preponderance of the evidence that the accused is presently suffering
from a mental disease or defect rendering him or her mentally
incompetent to the extent that he or she is unable to understand the
nature of the proceedings or to conduct or cooperate intelligently in
the defense of the case. In making this determination, the military
judge is not bound by the rules of evidence except with respect to
privileges.
(3) If the military judge finds the accused is incompetent to
stand trial, the judge shall report this finding to the general court-
martial convening authority, who shall commit the accused to the custody
of the Attorney General.
(f) Hospitalization of the accused. An accused who is found
incompetent to stand trial under this rule shall be hospitalized by the
Attorney General as provided in section 4241(d) of title 18, United
States Code. If notified that the accused has recovered to such an
extent that he or she is able to understand the nature of the
proceedings and to conduct or cooperate intelligently in the defense of
the case, then the general court-martial convening authority shall
promptly take custody of the accused. If, at the end of the period of
hospitalization, the accused's mental condition has not so improved,
action shall be taken in accordance with section 4246 of title 18,
United States Code.
(g) Excludable delay. All periods of commitment shall be excluded as
provided by R.C.M. 707(c). The 120-day time period under R.C.M. 707
shall begin anew on the date the general court-martial convening
authority takes custody of the accused at the end of any period of
commitment.''
j. R.C.M. 916(b) is amended to read as follows:
``(b) Burden of proof. Except for the defense of lack of mental
responsibility and the defense of mistake of fact as to age as described
in Part IV, para. 45c.(2) in a prosecution for carnal knowledge, the
prosecution shall
[[Page 161]]
have the burden of proving beyond a reasonable doubt that the defense
did not exist. The accused has the burden of proving the defense of lack
of mental responsibility by clear and convincing evidence, and has the
burden of proving mistake of fact as to age in a carnal knowledge
prosecution by a preponderance of the evidence.''
k. R.C.M. 916(j) is amended to read as follows:
``(j) Ignorance or mistake of fact.
(1) Generally. Except as otherwise provided in this subsection, it
is a defense to an offense that the accused held, as a result of
ignorance or mistake, an incorrect belief of the true circumstances such
that, if the circumstances were as the accused believed them, the
accused would not be guilty of the offense. If the ignorance or mistake
goes to an element requiring premeditation, specific intent,
willfulness, or knowledge of a particular fact, the ignorance or mistake
need only have existed in the mind of the accused. If the ignorance or
mistake goes to any other element requiring only general intent or
knowledge, the ignorance or mistake must have existed in the mind of the
accused and must have been reasonable under all the circumstances.
However, if the accused's knowledge or intent is immaterial as to an
element, then ignorance or mistake is not a defense.
(2) Carnal knowledge. It is a defense to a prosecution for carnal
knowledge that, at the time of the sexual intercourse, the person with
whom the accused had sexual intercourse was at least 12 years of age,
and the accused reasonably believed the person was at least 16 years of
age. The accused must prove this defense by a preponderance of the
evidence.''
l. R.C.M. 920(e)(5)(D) is amended to read as follows:
``(D) The burden of proof to establish the guilt of the accused
is upon the Government. [When the issue of lack of mental responsibility
is raised, add: The burden of proving the defense of lack of mental
responsibility by clear and convincing evidence is upon the accused.
When the issue of mistake of fact as to age in a carnal knowledge
prosecution is raised, add: The burden of proving the defense of mistake
of fact as to age in carnal knowledge by a preponderance of the evidence
is upon the accused.]''
m. R.C.M. 1005(e) is amended to read as follows:
``(e) Required Instructions. Instructions on sentence shall include:
(1) A statement of the maximum authorized punishment that may be
adjudged and of the mandatory minimum punishment, if any;
(2) A statement of the effect any sentence announced including a
punitive discharge and confinement, or confinement in excess of six
months, will have on the accused's entitlement to pay and allowances;
(3) A statement of the procedures for deliberation and voting on
the sentence set out in R.C.M. 1006;
(4) A statement informing the members that they are solely
responsible for selecting an appropriate sentence and may not rely on
the possibility of any mitigating action by the convening or higher
authority; and
(5) A statement that the members should consider all matters in
extenuation, mitigation, and aggravation, whether introduced before or
after findings, and matters introduced under R.C.M. 1001(b)(1), (2),
(3), and (5).''
[[Page 162]]
n. The heading for R.C.M. 1101 is amended as follows:
``Rule 1101. Report of result of trial; post-trial restraint; deferment
of confinement, forfeitures and reduction in grade; waiver of Article
58b forfeitures''
o. R.C.M. 1101(c) is amended as follows:
``(c) Deferment of confinement, forfeitures or reduction in grade.
(1) In general. Deferment of a sentence to confinement,
forfeitures, or reduction in grade is a postponement of the running of a
sentence.
(2) Who may defer. The convening authority or, if the accused is
no longer in the convening authority's jurisdiction, the officer
exercising general court-martial jurisdiction over the command to which
the accused is assigned, may, upon written application of the accused at
any time after the adjournment of the court-martial, defer the accused's
service of a sentence to confinement, forfeitures, or reduction in grade
that has not been ordered executed.
(3) Action on deferment request. The authority acting on the
deferment request may, in that authority's discretion, defer service of
a sentence to confinement, forfeitures, or reduction in grade. The
accused shall have the burden of showing that the interests of the
accused and the community in deferral outweigh the community's interest
in imposition of the punishment on its effective date. Factors that the
authority acting on a deferment request may consider in determining
whether to grant the deferment request include, where applicable: the
probability of the accused's flight; the probability of the accused's
commission of other offenses, intimidation of witnesses, or interference
with the administration of justice; the nature of the offenses
(including the effect on the victim) of which the accused was convicted;
the sentence adjudged; the command's immediate need for the accused; the
effect of deferment on good order and discipline in the command; the
accused's character, mental condition, family situation, and service
record. The decision of the authority acting on the deferment request
shall be subject to judicial review only for abuse of discretion. The
action of the authority acting on the deferment request shall be in
writing and a copy shall be provided to the accused.
(4) Orders. The action granting deferment shall be reported in the
convening authority's action under R.C.M. 1107(f)(4)(E) and shall
include the date of the action on the request when it occurs prior to or
concurrently with the action. Action granting deferment after the
convening authority's action under R.C.M. 1107 shall be reported in
orders under R.C.M. 1114 and included in the record of trial.
(5) Restraint when deferment is granted. When deferment of
confinement is granted, no form of restraint or other limitation on the
accused's liberty may be ordered as a substitute form of punishment. An
accused may, however, be restricted to specified limits or conditions
may be placed on the accused's liberty during the period of deferment
for any other proper reason, including a ground for restraint under
R.C.M. 304.
(6) End of deferment. Deferment of a sentence to confinement,
forfeitures, or reduction in grade ends when:
[[Page 163]]
(A) The convening authority takes action under R.C.M. 1107,
unless the convening authority specifies in the action that service of
confinement after the action is deferred;
(B) The confinement, forfeitures, or reduction in grade are
suspended;
(C) The deferment expires by its own terms; or
(D) The deferment is otherwise rescinded in accordance with
subsection (c)(7) of this rule. Deferment of confinement may not
continue after the conviction is final under R.C.M. 1209.
(7) Rescission of deferment.
(A) Who may rescind. The authority who granted the deferment or,
if the accused is no longer within that authority's jurisdiction, the
officer exercising general court-martial jurisdiction over the command
to which the accused is assigned, may rescind the deferment.
(B) Action. Deferment of confinement, forfeitures, or reduction
in grade may be rescinded when additional information is presented to a
proper authority which, when considered with all other information in
the case, that authority finds, in that authority's discretion, is
grounds for denial of deferment under subsection (c)(3) of this rule.
The accused shall promptly be informed of the basis for the rescission
and of the right to submit written matters on the accused's behalf and
to request that the rescission be reconsidered. However, the accused may
be required to serve the sentence to confinement, forfeitures, or
reduction in grade pending this action.
(C) Execution. When deferment of confinement is rescinded after
the convening authority's action under R.C.M. 1107, the confinement may
be ordered executed. However, no such order to rescind a deferment of
confinement may be issued within 7 days of notice of the rescission of a
deferment of confinement to the accused under subsection (c)(7)(B) of
this rule, to afford the accused an opportunity to respond. The
authority rescinding the deferment may extend this period for good cause
shown. The accused shall be credited with any confinement actually
served during this period.
(D) Orders. Rescission of a deferment before or concurrently
with the initial action in the case shall be reported in the action
under R.C.M. 1107(f)(4)(E), which action shall include the dates of the
granting of the deferment and the rescission. Rescission of a deferment
of confinement after the convening authority's action shall be reported
in supplementary orders in accordance with R.C.M. 1114 and shall state
whether the approved period of confinement is to be executed or whether
all or part of it is to be suspended.''
p. R.C.M. 101 is amended by adding the following new subparagraph (d):
``(d) Waiving forfeitures resulting from a sentence to confinement
to provide for dependent support.
(1) With respect to forfeiture of pay and allowances resulting
only by operation of law and not adjudged by the court, the convening
authority may waive, for a period not to exceed six months, all or part
of the forfeitures for the purpose of providing support to the accused's
dependent(s).
[[Page 164]]
The convening authority may waive and direct payment of any such
forfeitures when they become effective by operation of Article 57(a).
(2) Factors that may be considered by the convening authority in
determining the amount of forfeitures, if any, to be waived include, but
are not limited to, the length of the accused's confinement, the number
and age(s) of the accused's family members, whether the accused
requested waiver, any debts owed by the accused, the ability of the
accused's family members to find employment, and the availability of
transitional compensation for abused dependents permitted under 10
U.S.C. 1059.
(3) For the purposes of this Rule, a ``dependent'' means any
person qualifying as a ``dependent'' under 37 U.S.C. 401.''
q. The following new rule is added after R.C.M. 1102:
``Rule 1102A. Post-trial hearing for person found not guilty only by
reason of lack of mental responsibility
(a) In general. The military judge shall conduct a hearing not later
than forty days following the finding that an accused is not guilty only
by reason of a lack of mental responsibility.
(b) Psychiatric or psychological examination and report. Prior to
the hearing, the military judge or convening authority shall order a
psychiatric or psychological examination of the accused, with the
resulting psychiatric or psychological report transmitted to the
military judge for use in the post-trial hearing.
(c) Post-trial hearing.
(1) The accused shall be represented by defense counsel and shall
have the opportunity to testify, present evidence, call witnesses on his
or her behalf, and to confront and cross-examine witnesses who appear at
the hearing.
(2) The military judge is not bound by the rules of evidence
except with respect to privileges.
(3) An accused found not guilty only by reason of a lack of mental
responsibility of an offense involving bodily injury to another, or
serious damage to the property of another, or involving a substantial
risk of such injury or damage, has the burden of proving by clear and
convincing evidence that his or her release would not create a
substantial risk of bodily injury to another person or serious damage to
property of another due to a present mental disease or defect. With
respect to any other offense, the accused has the burden of such proof
by a preponderance of the evidence.
(4) If, after the hearing, the military judge finds the accused
has satisfied the standard specified in subsection (3) of this section,
the military judge shall inform the general court-martial convening
authority of this result and the accused shall be released. If, however,
the military judge finds after the hearing that the accused has not
satisfied the standard specified in subsection (3) of this section, then
the military judge shall inform the general court-martial convening
authority of this result and that authority may commit the accused to
the custody of the Attorney General.''
r. R.C.M. 1105(b) is amended to read as follows:
``(b) Matters that may be submitted.
[[Page 165]]
(1) The accused may submit to the convening authority any matters
that may reasonably tend to affect the convening authority's decision
whether to disapprove any findings of guilt or to approve the sentence.
The convening authority is only required to consider written
submissions.
(2) Submissions are not subject to the Military Rules of Evidence
and may include:
(A) Allegations of errors affecting the legality of the findings
or sentence;
(B) Portions or summaries of the record and copies of
documentary evidence offered or introduced at trial;
(C) Matters in mitigation that were not available for
consideration at the court-martial; and
(D) Clemency recommendations by any member, the military judge,
or any other person. The defense may ask any person for such a
recommendation.''
s. R.C.M. 1107(b)(4) is amended to read as follows:
``(4) When proceedings resulted in a finding of not guilty or not
guilty only by reason of lack of mental responsibility, or there was a
ruling amounting to a finding of not guilty. The convening authority
shall not take action disapproving a finding of not guilty, a finding of
not guilty only by reason of lack of mental responsibility, or a ruling
amounting to a finding of not guilty. When an accused is found not
guilty only by reason of lack of mental responsibility, the convening
authority, however, shall commit the accused to a suitable facility
pending a hearing and disposition in accordance with R.C.M. 1102A.''
t. The subheading for R.C.M. 1107(d)(3) is amended to read as follows:
``(3) Deferring service of a sentence to confinement.''
u. R.C.M. 1107(d)(3)(A) is amended to read as follows:
``(A) In a case in which a court-martial sentences an accused
referred to in subsection (B), below, to confinement, the convening
authority may defer service of a sentence to confinement by a court-
martial, without the consent of the accused, until after the accused has
been permanently released to the armed forces by a state or foreign
country.''
v. R.C.M. 1109 is amended to read as follows:
``Rule 1109. Vacation of suspension of sentence
(a) In general. Suspension of execution of the sentence of a court-
martial may be vacated for violation of the conditions of the suspension
as provided in this rule.
(b) Timeliness.
(1) Violation of conditions. Vacation shall be based on a
violation of the conditions of suspension that occurs within the period
of suspension.
(2) Vacation proceedings. Vacation proceedings under this rule
shall be completed within a reasonable time.
(3) Order vacating the suspension. The order vacating the
suspension shall be issued before the expiration of the period of
suspension.
[[Page 166]]
(4) Interruptions to the period of suspension. Unauthorized
absence of the probationer or the commencement of proceedings under this
rule to vacate suspension interrupts the running of the period of
suspension.
(c) Confinement of probationer pending vacation proceedings.
(1) In general. A probationer under a suspended sentence to
confinement may be confined pending action under subsection (d)(2) of
this rule, in accordance with the procedures in this subsection.
(2) Who may order confinement. Any person who may order pretrial
restraint under R.C.M. 304(b) may order confinement of a probationer
under a suspended sentence to confinement.
(3) Basis for confinement. A probationer under a suspended
sentence to confinement may be ordered into confinement upon probable
cause to believe the probationer violated any conditions of the
suspension.
(4) Review of confinement. Unless proceedings under subsection
(d)(1), (e), (f), or (g) of this rule are completed within 7 days of
imposition of confinement of the probationer (not including any delays
requested by probationer), a preliminary hearing shall be conducted by a
neutral and detached officer appointed in accordance with regulations of
the Secretary concerned.
(A) Rights of accused. Before the preliminary hearing, the
accused shall be notified in writing of:
(i) The time, place, and purpose of the hearing, including the
alleged violation(s) of the conditions of suspension;
(ii) The right to be present at the hearing;
(iii) The right to be represented at the hearing by civilian
counsel provided by the probationer or, upon request, by military
counsel detailed for this purpose; and
(iv) The opportunity to be heard, to present witnesses who are
reasonably available and other evidence, and the right to confront and
cross-examine adverse witnesses unless the hearing officer determines
that this would subject these witnesses to risk or harm. For purposes of
this subsection, a witness is not reasonably available if the witness
requires reimbursement by the United States for cost incurred in
appearing, cannot appear without unduly delaying the proceedings or, if
a military witness, cannot be excused from other important duties.
(B) Rules of evidence. Except for Mil. R. Evid. Section V
(Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of
Evidence shall not apply to matters considered at the preliminary
hearing under this rule.
(C) Decision. The hearing officer shall determine whether there
is probable cause to believe that the probationer violated the
conditions of the probationer's suspension. If the hearing officer
determines that probable cause is lacking, the hearing officer shall
issue a written order directing that the probationer be released from
confinement. If the hearing officer determines that there is probable
cause to believe that the probationer violated the conditions of
suspension, the hearing officer shall set forth that decision in a
written memorandum, detailing therein the evidence relied upon and
reasons for making the decision. The hearing officer shall forward the
original memorandum or release order to the probationer's com
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mander and forward a copy to the probationer and the officer in charge
of the confinement facility.
(d) Vacation of suspended general court-martial sentence.
(1) Action by officer having special court-martial jurisdiction
over probationer.
(A) In general. Before vacation of the suspension of any general
court-martial sentence, the officer having special court-martial
jurisdiction over the probationer shall personally hold a hearing on the
alleged violation of the conditions of suspension. If there is no
officer having special court-martial jurisdiction over the probationer
who is subordinate to the officer having general court-martial
jurisdiction over the probationer, the officer exercising general court-
martial jurisdiction over the probationer shall personally hold a
hearing under subsection (d)(1) of this rule. In such cases, subsection
(d)(1)(D) of this rule shall not apply.
(B) Notice to probationer. Before the hearing, the officer
conducting the hearing shall cause the probationer to be notified in
writing of:
(i) The time, place, and purpose of the hearing;
(ii) The right to be present at the hearing;
(iii) The alleged violation(s) of the conditions of suspension
and the evidence expected to be relied on;
(iv) The right to be represented at the hearing by civilian
counsel provided by the probationer or, upon request, by military
counsel detailed for this purpose; and
(v) The opportunity to be heard, to present witnesses and
other evidence, and the right to confront and cross-examine adverse
witnesses, unless the hearing officer determines that there is good
cause for not allowing confrontation and cross-examination.
(C) Hearing. The procedure for the vacation hearing shall follow
that prescribed in R.C.M. 405(g), (h)(1), and (i).
(D) Record and recommendation. The officer who conducts the
vacation proceeding shall make a summarized record of the proceeding and
forward the record and that officer's written recommendation concerning
vacation to the officer exercising general court-martial jurisdiction
over the probationer.
(E) Release from confinement. If the special court-martial
convening authority finds there is not probable cause to believe that
the probationer violated the conditions of the suspension, the special
court-martial convening authority shall order the release of the
probationer from confinement ordered under subsection (c) of this rule.
The special court-martial convening authority shall, in any event,
forward the record and recommendation under subsection (d)(1)(D) of this
rule.
(2) Action by officer exercising general court-martial
jurisdiction over probationer.
(A) In general. The officer exercising general court-martial
jurisdiction over the probationer shall review the record produced by
and the recommendation of the officer exercising special court-martial
jurisdiction over the probationer, decide whether the probationer
violated a condition
[[Page 168]]
of suspension, and, if so, decide whether to vacate the suspended
sentence. If the officer exercising general court-martial jurisdiction
decides to vacate the suspended sentence, that officer shall prepare a
written statement of the evidence relied on and the reasons for vacating
the suspended sentence.
(B) Execution. Any unexecuted part of a suspended sentence
ordered vacated under this subsection shall, subject to R.C.M. 1113(c),
be ordered executed.
(e) Vacation of a suspended special court-martial sentence wherein a
bad-conduct discharge was not adjudged.
(1) In general. Before vacating the suspension of a special court-
martial punishment that does not include a bad-conduct discharge, the
special court-martial convening authority for the command in which the
probationer is serving or assigned shall cause a hearing to be held on
the alleged violation(s) of the conditions of suspension.
(2) Notice to probationer. The person conducting the hearing shall
notify the probationer, in writing, before the hearing of the rights
specified in subsection (d)(1)(B) of this rule.
(3) Hearing. The procedure for the vacation hearing shall follow
that prescribed in R.C.M. 405(g), (h)(1), and (i).
(4) Authority to vacate suspension. The special court-martial
convening authority for the command in which the probationer is serving
or assigned shall have the authority to vacate any punishment that the
officer has the authority to order executed.
(5) Record and recommendation. If the hearing is not held by the
commander with authority to vacate the suspension, the person who
conducts the hearing shall make a summarized record of the hearing and
forward the record and that officer's written recommendation concerning
vacation to the commander with authority to vacate the suspension.
(6) Decision. The special court-martial convening authority shall
review the record produced by and the recommendation of the person who
conducted the vacation proceeding, decide whether the probationer
violated a condition of suspension, and, if so, decide whether to vacate
the suspended sentence. If the officer exercising jurisdiction decides
to vacate the suspended sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for vacating the
suspended sentence.
(7) Execution. Any unexecuted part of a suspended sentence ordered
vacated under this subsection shall be ordered executed.
(f) Vacation of a suspended special court-martial sentence that
includes a bad-conduct discharge.
(1) The procedure for the vacation of a suspended approved bad-
conduct discharge shall follow that set forth in subsection (d) of this
rule.
(2) The procedure for the vacation of the suspension of any lesser
special court-martial punishment shall follow that set forth in
subsection (e) of this rule.
(g) Vacation of a suspended summary court-martial sentence.
(1) Before vacation of the suspension of a summary court-martial
sentence, the summary court-martial convening authority for the command
in
[[Page 169]]
which the probationer is serving or assigned shall cause a hearing to be
held on the alleged violation(s) of the conditions of suspension.
(2) Notice to probationer. The person conducting the hearing shall
notify the probationer before the hearing of the rights specified in
subsections (d)(1)(B)(i), (ii), (iii), and (v) of this rule.
(3) Hearing. The procedure for the vacation hearing shall follow
that prescribed in R.C.M. 405(g), (h)(1), and (i).
(4) Authority to vacate suspension. The summary court-martial
convening authority for the command in which the probationer is serving
or assigned shall have the authority to vacate any punishment that the
officer had the authority to order executed.
(5) Record and recommendation. If the hearing is not held by the
commander with authority to vacate the suspension, the person who
conducts the vacation proceeding shall make a summarized record of the
proceeding and forward the record and that officer's written
recommendation concerning vacation to the commander with authority to
vacate the suspension.
(6) Decision. A commander with authority to vacate the suspension
shall review the record produced by and the recommendation of the person
who conducted the vacation proceeding, decide whether the probationer
violated a condition of suspension, and, if so, decide whether to vacate
the suspended sentence. If the officer exercising jurisdiction decides
to vacate the suspended sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for vacating the
suspended sentence.
(7) Execution. Any unexecuted part of a suspended sentence ordered
vacated under this subsection shall be ordered executed.''
w. R.C.M. 1201(b)(3)(A) is amended to read as follows:
``(A) In general. Notwithstanding R.C.M. 1209, the Judge
Advocate General may, sua sponte or upon application of the accused or a
person with authority to act for the accused, vacate or modify, in whole
or in part, the findings, sentence, or both of a court-martial that has
been finally reviewed, but has not been reviewed either by a Court of
Criminal Appeals or by the Judge Advocate General under subsection
(b)(1) of this rule, on the ground of newly discovered evidence, fraud
on the court-martial, lack of jurisdiction over the accused or the
offense, error prejudicial to the substantial rights of the accused, or
the appropriateness of the sentence.''
x. R.C.M. 1203(c)(1) is amended to read as follows:
``(1) Forwarding by the Judge Advocate General to the Court of
Appeals for the Armed Forces. The Judge Advocate General may forward the
decision of the Court of Criminal Appeals to the Court of Appeals for
the Armed Forces for review with respect to any matter of law. In such a
case, the Judge Advocate General shall cause a copy of the decision of
the Court of Criminal Appeals and the order forwarding the case to be
served on the accused and on appellate defense counsel. While a review
of a forwarded case is pending, the Secretary concerned may defer
further service of a sentence to confinement that has been ordered
executed in such a case.''
y. R.C.M. 1210(a) is amended by adding at the end thereof the following
sentence:
[[Page 170]]
``A petition for a new trial of the facts may not be submitted on the
basis of newly discovered evidence when the petitioner was found guilty
of the relevant offense pursuant to a guilty plea.''
Sec. 2. Part III of the Manual for Courts-Martial, United States, is
amended as follows:
a. M.R.E. 412 is amended to read as follows:
``Rule 412. Nonconsensual sexual offenses; relevance of victim's
behavior or sexual predisposition
(a) Evidence generally inadmissible. The following evidence is not
admissible in any proceeding involving alleged sexual misconduct except
as provided in subdivisions (b) and (c) of this rule:
(1) Evidence offered to prove that any alleged victim engaged in
other sexual behavior; and
(2) Evidence offered to prove any alleged victim's sexual
predisposition.
(b) Exceptions.
(1) In a proceeding, the following evidence is admissible, if
otherwise admissible under these rules:
(A) Evidence of specific instances of sexual behavior by the
alleged victim offered to prove that a person other than the accused was
the source of semen, injury, or other physical evidence;
(B) Evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual
misconduct offered by the accused to prove consent or by the
prosecution; and
(C) Evidence the exclusion of which would violate the
constitutional rights of the accused.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) of
this rule must:
(A) file a written motion at least 5 days prior to entry of
pleas specifically describing the evidence and stating the purpose for
which it is offered unless the military judge, for good cause shown,
requires a different time for filing or permits filing during trial; and
(B) serve the motion on the opposing party and the military
judge and notify the alleged victim or, when appropriate, the alleged
victim's guardian or representative.
(2) Before admitting evidence under this rule, the military judge
must conduct a hearing, which shall be closed. At this hearing, the
parties may call witnesses, including the alleged victim, and offer
relevant evidence. The victim must be afforded a reasonable opportunity
to attend and be heard. In a case before a court-martial composed of a
military judge and members, the military judge shall conduct the hearing
outside the presence of the members pursuant to Article 39(a). The
motion, related papers, and the record of the hearing must be sealed and
remain under seal unless the court orders otherwise.
[[Page 171]]
(3) If the military judge determines on the basis of the hearing
described in paragraph (2) of this subdivision that the evidence that
the accused seeks to offer is relevant and that the probative value of
such evidence outweighs the danger of unfair prejudice, such evidence
shall be admissible in the trial to the extent an order made by the
military judge specifies evidence that may be offered and areas with
respect to which the alleged victim may be examined or cross-examined.
(d) For purposes of this rule, the term ``sexual behavior'' includes
any sexual behavior not encompassed by the alleged offense. The term
``sexual predisposition'' refers to an alleged victim's mode of dress,
speech, or lifestyle that does not directly refer to sexual activities
or thoughts but that may have a sexual connotation for the factfinder.
(e) A ``nonconsensual sexual offense'' is a sexual offense in which
consent by the victim is an affirmative defense or in which the lack of
consent is an element of the offense. This term includes rape, forcible
sodomy, assault with intent to commit rape or forcible sodomy, indecent
assault, and attempts to commit such offenses.''
b. M.R.E. 413 is added to read as follows:
``Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a court-martial in which the accused is charged with an
offense of sexual assault, evidence of the accused's commission of one
or more offenses of sexual assault is admissible and may be considered
for its bearing on any matter to which it is relevant.
(b) In a court-martial in which the Government intends to offer
evidence under this rule, the Government shall disclose the evidence to
the accused, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least 5
days before the scheduled date of trial, or at such later time as the
military judge may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule, ``offense of sexual assault'' means
an offense punishable under the Uniform Code of Military Justice, or a
crime under Federal law or the law of a State that involved--
(1) any sexual act or sexual contact, without consent, proscribed
by the Uniform Code of Military Justice, Federal law, or the law of a
State;
(2) contact, without consent of the victim, between any part of
the accused's body, or an object held or controlled by the accused, and
the genitals or anus of another person;
(3) contact, without consent of the victim, between the genitals
or anus of the accused and any part of another person's body;
(4) deriving sexual pleasure or gratification from the infliction
of death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in
paragraphs (1) through (4).
(e) For purposes of this rule, the term ``sexual act'' means:
[[Page 172]]
(1) contact between the penis and the vulva or the penis and the
anus, and for purposes of this rule, contact occurs upon penetration,
however slight, of the penis into the vulva or anus;
(2) contact between the mouth and the penis, the mouth and the
vulva, or the mouth and the anus;
(3) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any object, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person; or
(4) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16 years,
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
(f) For purposes of this rule, the term ``sexual contact'' means the
intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
(g) For purposes of this rule, the term ``State'' includes a State
of the United States, the District of Columbia, Puerto Rico, Guam, the
Virgin Islands, and any other territory or possession of the United
States.''
c. M.R.E. 414 is added to read as follows:
``Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a court-martial in which the accused is charged with an
offense of child molestation, evidence of the accused's commission of
one or more offenses of child molestation is admissible and may be
considered for its bearing on any matter to which it is relevant.
(b) In a court-martial in which the Government intends to offer
evidence under this rule, the Government shall disclose the evidence to
the accused, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least 5
days before the scheduled date of trial or at such later time as the
military judge may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule, ``child'' means a person below the
age of sixteen, and ``offense of child molestation'' means an offense
punishable under the Uniform Code of Military Justice, or a crime under
Federal law or the law of a State that involved--
(1) any sexual act or sexual contact with a child proscribed by
the Uniform Code of Military Justice, Federal law, or the law of a
State;
(2) any sexually explicit conduct with children proscribed by the
Uniform Code of Military Justice, Federal law, or the law of a State;
(3) contact between any part of the accused's body, or an object
controlled or held by the accused, and the genitals or anus of a child;
(4) contact between the genitals or anus of the accused and any
part of the body of a child;
[[Page 173]]
(5) deriving sexual pleasure or gratification from the infliction
of death, bodily injury, or physical pain on a child; or
(6) an attempt or conspiracy to engage in conduct described in
paragraphs (1) through (5) of this subdivision.
(e) For purposes of this rule, the term ``sexual act'' means:
(1) contact between the penis and the vulva or the penis and the
anus, and for purposes of this rule contact occurs upon penetration,
however slight, of the penis into the vulva or anus;
(2) contact between the mouth and the penis, the mouth and the
vulva, or the mouth and the anus;
(3) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any object, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person; or
(4) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16 years,
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
(f) For purposes of this rule, the term ``sexual contact'' means the
intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
(g) For purpose of this rule, the term ``sexually explicit conduct''
means actual or simulated:
(1) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse; or
(5) lascivious exhibition of the genitals or pubic area of any
person.
(h) For purposes of this rule, the term ``State'' includes a State
of the United States, the District of Columbia, Puerto Rico, Guam, the
Virgin Islands, and any other territory or possession of the United
States.''
d. M.R.E. 1102 is amended to read as follows:
``Amendments to the Federal Rules of Evidence shall apply to the
Military Rules of Evidence 18 months after the effective date of such
amendments, unless action to the contrary is taken by the President.''
Sec. 3. Part IV of the Manual for Courts-Martial, United States, is
amended as follows:
a. Paragraph 19 is amended to read as follows:
``19. Article 95--Resistance, flight, breach of arrest, and escape
a. Text.
``Any person subject to this chapter who--
[[Page 174]]
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement shall be punished as a
court-martial may direct.''
b. Elements.
(1) Resisting apprehension.
(a) That a certain person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused;
and
(c) That the accused actively resisted the apprehension.
(2) Flight from apprehension.
(a) That a certain person attempted to apprehend the accused;
(b) That said person was authorized to apprehend the accused;
and
(c) That the accused fled from the apprehension.
(3) Breaking arrest.
(a) That a certain person ordered the accused into arrest;
(b) That said person was authorized to order the accused into
arrest; and
(c) That the accused went beyond the limits of arrest before
being released from that arrest by proper authority.
(4) Escape from custody.
(a) That a certain person apprehended the accused;
(b) That said person was authorized to apprehend the accused;
and
(c) That the accused freed himself or herself from custody
before being released by proper authority.
(5) Escape from confinement.
(a) That a certain person ordered the accused into confinement;
(b) That said person was authorized to order the accused into
confinement; and
(c) That the accused freed himself or herself from confinement
before being released by proper authority. [Note: If the escape was from
post-trial confinement, add the following element]
(d) That the confinement was the result of a court-martial
conviction.
c. Explanation.
(1) Resisting apprehension.
(a) Apprehension. Apprehension is the taking of a person into
custody. See R.C.M. 302.
(b) Authority to apprehend. See R.C.M. 302(b) concerning who may
apprehend. Whether the status of a person authorized that person to
appre
[[Page 175]]
hend the accused is a question of law to be decided by the military
judge. Whether the person who attempted to make an apprehension had such
a status is a question of fact to be decided by the factfinder.
(c) Nature of the resistance. The resistance must be active,
such as assaulting the person attempting to apprehend. Mere words of
opposition, argument, or abuse, and attempts to escape from custody
after the apprehension is complete, do not constitute the offense of
resisting apprehension although they may constitute other offenses.
(d) Mistake. It is a defense that the accused held a reasonable
belief that the person attempting to apprehend did not have authority to
do so. However, the accused's belief at the time that no basis existed
for the apprehension is not a defense.
(e) Illegal apprehension. A person may not be convicted of
resisting apprehension if the attempted apprehension is illegal, but may
be convicted of other offenses, such as assault, depending on all the
circumstances. An attempted apprehension by a person authorized to
apprehend is presumed to be legal in the absence of evidence to the
contrary. Ordinarily the legality of an apprehension is a question of
law to be decided by the military judge.
(2) Flight from apprehension. The flight must be active, such as
running or driving away.
(3) Breaking arrest.
(a) Arrest. There are two types of arrest: pretrial arrest under
Article 9 (see R.C.M. 304), and arrest under Article 15 (see paragraph
5c.(3), Part V, MCM). This article prohibits breaking any arrest.
(b) Authority to order arrest. See R.C.M. 304(b) and paragraphs
2 and 5b, Part V, MCM, concerning authority to order arrest.
(c) Nature of restraint imposed by arrest. In arrest, the
restraint is moral restraint imposed by orders fixing the limits of
arrest.
(d) Breaking. Breaking arrest is committed when the person in
arrest infringes the limits set by orders. The reason for the
infringement is immaterial. For example, innocence of the offense with
respect to which an arrest may have been imposed is not a defense.
(e) Illegal arrest. A person may not be convicted of breaking
arrest if the arrest is illegal. An arrest ordered by one authorized to
do so is presumed to be legal in the absence of some evidence to the
contrary. Ordinarily, the legality of an arrest is a question of law to
be decided by the military judge.
(4) Escape from custody.
(a) Custody. ``Custody'' is restraint of free locomotion imposed
by lawful apprehension. The restraint may be physical or, once there has
been a submission to apprehension or a forcible taking into custody, it
may consist of control exercised in the presence of the prisoner by
official acts or orders. Custody is temporary restraint intended to
continue until other restraint (arrest, restriction, confinement) is
imposed or the person is released.
(b) Authority to apprehend. See subparagraph (1)(b) above.
[[Page 176]]
(c) Escape. For a discussion of escape, see subparagraph
c(5)(c), below.
(d) Illegal custody. A person may not be convicted of this
offense if the custody was illegal. An apprehension effected by one
authorized to apprehend is presumed to be lawful in the absence of
evidence to the contrary. Ordinarily, the legality of an apprehension is
a question of law to be decided by the military judge.
(e) Correctional custody. See paragraph 70.
(5) Escape from confinement.
(a) Confinement. Confinement is physical restraint imposed under
R.C.M. 305, 1101, or paragraph 5b, Part V, MCM. For purposes of the
element of post-trial confinement (subparagraph b(5)(d), above) and
increased punishment therefrom (subparagraph e(4), below), the
confinement must have been imposed pursuant to an adjudged sentence of a
court-martial, and not as a result of pretrial restraint or nonjudicial
punishment.
(b) Authority to order confinement. See R.C.M. 304(b), 1101, and
paragraphs 2 and 5b, Part V, MCM, concerning who may order confinement.
(c) Escape. An escape may be either with or without force or
artifice, and either with or without the consent of the custodian.
However, where a prisoner is released by one with apparent authority to
do so, the prisoner may not be convicted of escape from confinement. See
also paragraph 20c.(l)(b). Any completed casting off of the restraint of
confinement, before release by proper authority, is an escape, and lack
of effectiveness of the restraint imposed is immaterial. An escape is
not complete until the prisoner is momentarily free from the restraint.
If the movement toward escape is opposed, or before it is completed, an
immediate pursuit follows, there is no escape until opposition is
overcome or pursuit is eluded.
(d) Status when temporarily outside confinement facility. A
prisoner who is temporarily escorted outside a confinement facility for
a work detail or other reason by a guard, who has both the duty and
means to prevent that prisoner from escaping, remains in confinement.
(e) Legality of confinement. A person may not be convicted of
escape from confinement if the confinement is illegal. Confinement
ordered by one authorized to do so is presumed to be lawful in the
absence of evidence to the contrary. Ordinarily, the legality of
confinement is a question of law to be decided by the military judge.
d. Lesser included offenses.
(1) Resisting apprehension. Article 128--assault; assault
consummated by a battery
(2) Breaking arrest.
(a) Article 134--breaking restriction
(b) Article 80--attempts
(3) Escape from custody. Article 80--attempts
(4) Escape from confinement. Article 80--attempts
e. Maximum punishment.
[[Page 177]]
(1) Resisting apprehension. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 1 year.
(2) Flight from apprehension. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 1 year.
(3) Breaking arrest. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 6 months.
(4) Escape from custody, pretrial confinement, or confinement on
bread and water or diminished rations imposed pursuant to Article 15.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(5) Escape from post-trial confinement. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 5 years.
f. Sample specifications.
(1) Resisting apprehension.
In that ______________ (personal jurisdiction data), did (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about __________, 19____, resist being apprehended by __________, (an
armed force policeman) (__________), a person authorized to apprehend
the accused.
(2) Flight from apprehension.
In that ______________ (personal jurisdiction data), did (at/on
board--location) (subject matter jurisdiction data, if required), on or
about __________________ 19____, flee apprehension by ________________
(an armed force policeman) (__________________), a person authorized to
apprehend the accused.
(3) Breaking arrest.
In that ______________ (personal jurisdiction data), having been
placed in arrest (in quarters) (in his/her company area) (
__________________ ) by a person authorized to order the accused into
arrest, did, (at/on board--location) on or about ____________________
19____, break said arrest.
(4) Escape from custody.
In that ______________________ (personal jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction data, if required),
on or about __________________ 19____, escape from the custody of
__________________, a person authorized to apprehend the accused.
(5) Escape from confinement.
In that __________________ (personal jurisdiction data), having been
placed in (post-trial) confinement in (place of confinement), by a
person authorized to order said accused into confinement did, (at/on
board--location) (subject-matter jurisdiction data, if required), on or
about ________________ 19____, escape from confinement.''
b. The following new paragraph is added after paragraph 97:
``97a. Article 134--(Parole, Violation of)
a. Text. See paragraph 60.
b. Elements.
[[Page 178]]
(1) That the accused was a prisoner as the result of a court-
martial conviction or other criminal proceeding;
(2) That the accused was on parole;
(3) That there were certain conditions of parole that the parolee
was bound to obey;
(4) That the accused violated the conditions of parole by doing an
act or failing to do an act; and
(5) That, under the circumstances, the conduct of the accused was
to the prejudice of good order and discipline in the armed forces or was
of a nature to bring discredit upon the armed forces.
c. Explanation.
(1) ``Prisoner'' refers only to those in confinement resulting
from conviction at a court-martial or other criminal proceeding.
(2) ``Parole'' is defined as ``word of honor.'' A prisoner on
parole, or parolee, has agreed to adhere to a parole plan and conditions
of parole. A ``parole plan'' is a written or oral agreement made by the
prisoner prior to parole to do or refrain from doing certain acts or
activities. A parole plan may include a residence requirement stating
where and with whom a parolee will live, and a requirement that the
prisoner have an offer of guaranteed employment. ``Conditions of
parole'' include the parole plan and other reasonable and appropriate
conditions of parole, such as paying restitution, beginning or
continuing treatment for alcohol or drug abuse, or paying a fine ordered
executed as part of the prisoner's court-martial sentence. In return for
giving his or her ``word of honor'' to abide by a parole plan and
conditions of parole, the prisoner is granted parole.
d. Lesser included offense. Article 80--attempts.
e. Maximum punishment. Bad-conduct discharge, confinement for 6
months, and forfeiture of two-thirds pay per month for 6 months.
f. Sample specification.
In that ____________________ (personal jurisdiction data), a
prisoner on parole, did, (at/on board--location), on or about
____________, 19____, violate the conditions of his/her parole by
______________________________.''
c. Paragraph 45.a and b are amended to read as follows:
``45. Article 120--Rape and carnal knowledge
a. Text.
``(a) Any person subject to this chapter who commits an act of
sexual intercourse by force and without consent, is guilty of rape and
shall be punished by death or such other punishment as a court-martial
may direct.
(b) Any person subject to this chapter who, under circumstances not
amounting to rape, commits an act of sexual intercourse with a person--
(1) who is not his or her spouse; and
(2) who has not attained the age of sixteen years; is guilty of
carnal knowledge and shall be punished as a court-martial may direct.
(c) Penetration, however slight, is sufficient to complete either of
these offenses.
[[Page 179]]
(d)(1) In a prosecution under subsection (b), it is an affirmative
defense that--
(A) the person with whom the accused committed the act of sexual
intercourse had at the time of the alleged offense attained the age of
twelve years; and
(B) the accused reasonably believed that the person had at the
time of the alleged offense attained the age of 16 years.
(2) The accused has the burden of proving a defense under
subparagraph (d)(1) by a preponderance of the evidence.''
b. Elements.
(1) Rape.
(a) That the accused committed an act of sexual intercourse;
and
(b) That the act of sexual intercourse was done by force and
without consent.
(2) Carnal knowledge.
(a) That the accused committed an act of sexual intercourse
with a certain person;
(b) That the person was not the accused's spouse; and
(c) That at the time of the sexual intercourse the person was
under 16 years of age.''
d. Paragraph 45c.(2) is amended to read as follows:
``(2) Carnal knowledge. ``Carnal knowledge'' is sexual intercourse
under circumstances not amounting to rape, with a person who is not the
accused's spouse and who has not attained the age of 16 years. Any
penetration, however slight, is sufficient to complete the offense. It
is a defense, however, which the accused must prove by a preponderance
of the evidence, that at the time of the act of sexual intercourse, the
person with whom the accused committed the act of sexual intercourse was
at least 12 years of age, and that the accused reasonably believed that
this same person was at least 16 years of age.''
e. Paragraph 54e.(l) is amended to read as follows:
``(1) Simple Assault.
(A) Generally. Confinement for 3 months and forfeiture of two-
thirds pay per month for 3 months.
(B) When committed with an unloaded firearm. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 3
years.''
Sec. 4. These amendments shall take effect on May 27, 1998, subject to
the following:
(a) The amendments made to Military Rules of Evidence 412, 413, and
414 shall apply only to courts-martial in which arraignment has been
completed on or after June 26, 1998.
(b) Nothing contained in these amendments shall be construed to make
punishable any act done or omitted prior to June 26, 1998, which was not
punishable when done or omitted.
[[Page 180]]
(c) The amendment made to Part IV, para. 45c.(2), authorizing a
mistake of fact defense as to age in carnal knowledge prosecutions is
effective in all cases in which the accused was arraigned on the offense
of carnal knowledge, or for a greater offense that is later reduced to
the lesser included offense of carnal knowledge, on or after February
10, 1996.
(d) Nothing in these amendments shall be construed to invalidate any
nonjudicial punishment proceeding, restraint, investigation, referral of
charges, trial in which arraignment occurred, or other action begun
prior to May 27, 1998, and any such nonjudicial punishment proceeding,
restraint, investigation, referral of charges, trial or other action may
proceed in the same manner and with the same effect as if these
amendments had not been prescribed.
WILLIAM J. CLINTON
THE WHITE HOUSE,
May 27, 1998.