NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: Death or other lawful punishment. (Criteria)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, without proper authority, knowingly (communicate with) (correspond with) (hold intercourse with) the enemy (by writing and transmitting secretly through lines to one__________ whom (he) (she), the said __________, knew to be (an officer of the enemy’s armed forces) (__________) a communication in words and figures substantially as follows, to wit: __________) (indirectly by publishing in __________, a newspaper published at __________, a communication in words and figures as follows, to wit: __________, which communication was intended to reach the enemy) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused without proper authority, knowingly communicated, corresponded, or held intercourse with (a) certain person(s), namely: (state the name or description of the enemy alleged to have received the communication, correspondence, etc.);
(2) That the accused did so by (state the manner alleged);
(3) That (state the name or description of the enemy alleged to have received the communication, correspondence, etc.) was an enemy; and
(4) That the accused knew (he) (she) was communicating, corresponding, or holding intercourse with an enemy.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Communication, correspondence, or holding intercourse with the enemy does not necessarily mean a mutual exchange of communication. The law requires absolute non-intercourse, and any unauthorized communication, no matter what its meaning or intent, is prohibited. This prohibition applies to any method of intercourse or communication and may be direct or indirect. The offense is complete the moment the communication leaves the accused, whether or not it reaches its destination.
“Enemy” includes organized opposing forces in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and the citizens of the other.
Actual knowledge by the accused that he/she knowingly communicated, corresponded, or held intercourse with the enemy is required. That knowledge may be proved by circumstantial evidence.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.