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:
(1) When committed upon a child under 16 years of age: DD, TF, 15 years, E-1. (Category 3)
(2) All other cases: DD, TF, 10 years, E-1. (Category 3)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, by culpable negligence, unlawfully kill __________ (a child under 16 years of age) by __________ (him) (her) (in) (on) the __________ with a __________.
c. ELEMENTS:
(1) That (state the name or description of the alleged victim) is dead;
(2) That (his) (her) death resulted from the (act) (omission) of the accused in (state the act or omission alleged) at (state the time and place alleged);
(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; (and)
(4) That this (act) (omission) constituted culpable negligence; [and]
[(5)] That (state the name or description of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Killing a human being is unlawful when done without legal justification or excuse.
“Culpable negligence” is a degree of carelessness greater than simple negligence. ‘Simple negligence” is the absence of due care. The law requires everyone at all times to demonstrate the care for the safety of others that a reasonably careful person would demonstrate under the same or similar circumstances; this is what “due care” means. “Culpable negligence” is a negligent act or failure to act accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.
You may find the accused guilty of involuntary manslaughter, only if you are satisfied beyond a reasonable doubt that the (act) (omission) of the accused which caused the death amounted to “culpable negligence.”
NOTE 2: Proximate cause in issue. Use an appropriately tailored version of Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence, to instruct on proximate cause.
NOTE 3: Contributory negligence of victim. Use an appropriately tailored version of Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence, to instruct on contributory negligence, if applicable.
NOTE 4: Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that (state the name or description of the alleged victim) was under the age of 16 years is not an element of the offense.
Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to involuntary manslaughter upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.
NOTE 5: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 6: Legal Duty Required. When the evidence raises the question of whether the accused had a duty of care, the following instruction should be given
When there is no legal duty to act, there can be no neglect and therefore no duty no crime is committed. (For example, when a stranger makes no effort to save a drowning person, or a person allows a beggar to freeze or starve to death, they are not culpably negligent in allowing this to happen).