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: DD, TF, life without eligibility for parole, E-1. A dishonorable discharge or a dismissal is a mandatory minimum sentence for this offense. (Category 4)
b. SAMPLE SPECIFICATION:
By Force:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon ______, by [penetrating ______’s (vulva) (anus) (mouth) with ______’s penis] [causing contact between _______'s mouth and ________'s (penis) (vulva) (scrotum) (anus)] [penetrating _______'s (vulva) (penis) (anus) with (______'s body part) (an object) to wit: ________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of _________]], by using unlawful force.
By Force Likely to Cause Death or Grievous Bodily Harm:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon ______, by [penetrating ______’s (vulva) (anus) (mouth) with ______’s penis] [causing contact between _______'s mouth and ________'s (penis) (vulva) (scrotum) (anus)] [penetrating _______'s (vulva) (penis) (anus) with (______'s body part) (an object) to wit: ________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of _________]], by using force likely to cause death or grievous bodily harm to _____________, to wit: _______________.
By Threatening or Placing in Fear:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon ______, by [penetrating ______’s (vulva) (anus) (mouth) with ______’s penis] [causing contact between _______'s mouth and ________'s (penis) (vulva) (scrotum) (anus)] [penetrating _______'s (vulva) (penis) (anus) with (______'s body part) (an object) to wit: ________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of _________]], by (threatening _________) (placing _________ in fear) that _________ would be subjected to (death) (grievous bodily harm) (kidnapping).
By First Rendering Unconscious:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon ______, by [penetrating ______’s (vulva) (anus) (mouth) with ______’s penis] [causing contact between _______'s mouth and ________'s (penis) (vulva) (scrotum) (anus)] [penetrating _______'s (vulva) (penis) (anus) with (______'s body part) (an object) to wit: ________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of _________]], by first rendering ___________ unconscious by _______________.
By Administering Drug/Intoxicant/Other Similar Substance:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon ______, by [penetrating ______’s (vulva) (anus) (mouth) with ______’s penis] [causing contact between _______'s mouth and ________'s (penis) (vulva) (scrotum) (anus)] [penetrating _______'s (vulva) (penis) (anus) with (______'s body part) (an object) to wit: ________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of _________]], by administering to __________ (by force) (by threat of force) (without the knowledge or permission of __________) a (drug) (intoxicant) (list other similar substance), to wit: _____________, thereby substantially impairing the ability of _________ to appraise or control (his) (her) conduct.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state name of the alleged victim) by (state the alleged sexual act); and
(2) That the accused did so by
(a) using unlawful force against (state the name of the alleged victim).
(b) using force causing or likely to cause death or grievous bodily harm to (state the name of the person alleged), to wit: (state the alleged force).
(c) threatening or placing (state the name of the alleged victim) in fear that (state the name of the person alleged) would be subjected to death, grievous bodily harm, or kidnapping.
(d) first rendering (state the name of the alleged victim) unconscious.
(e) administering to (state the name of the alleged victim) a drug, intoxicant, or other similar substance (by force or threat of force) (without the knowledge or consent of (state the name of the alleged victim)), thereby substantially impairing the ability of (state the name of the alleged victim) to appraise or control his/her conduct.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Sexual act” means:
(A) the penetration, however slight, of the penis into the vulva or anus or mouth;
(B) contact between the mouth and the penis, vulva, scrotum, or anus; or
(C) the penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.
(The “vulva” is the external genital organs of the female, including the entrance of the vagina and the labia majora and labia minora. “Labia” is the Latin and medically correct term for “lips.”)
NOTE 2: By unlawful force. When the sexual act is alleged by unlawful force, include the following instruction:
“Unlawful force” means an act of force done without legal justification or excuse.
“Force” means the use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicting physical harm sufficient to coerce or compel submission by the victim.
NOTE 3: By force causing or likely to cause death or grievous bodily harm. When the sexual act is alleged by force causing or likely to cause death or grievous bodily harm, include the following instruction:
“Force” means the use of a weapon; the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a person; or inflicting physical harm sufficient to coerce or compel submission by the victim.
“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.
(The force causing or likely to cause death or grievous bodily harm which caused the victim to engage in the sexual act need not have been applied by the accused to the victim. It is sufficient if the accused applied such force to any person, which thereby caused the victim to engage in the sexual act.)
NOTE 4: By threat or placing in fear. When the sexual act is alleged by threat or by placing in fear, include the following instruction:
“Threatening or placing a person in fear” 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 the wrongful action contemplated by the communication or action.
(“Wrongful action,” as used here, includes an abuse of military rank, position, or authority in order to engage in a sexual act with a victim. This includes, but is not limited to, threats to initiate an adverse personnel action or withhold a favorable personnel action unless the victim submits to the accused's requested sexual act. Superiority in rank is a factor in, but not dispositive of, whether a reasonable person in the position of the victim would fear that his or her noncompliance with the accused's desired sexual act would result in the threatened wrongful action contemplated by the communication or action.)
In proving that the accused made a threat, it need not be proven that the accused actually intended to carry out the threat or had the ability to carry out the threat.
NOTE 5: By threat or placing in fear. In the context of a Stalking offense, the Supreme Court held that there is a greater mens rea requirement when an alleged threat involves ONLY speech. Counterman v. Colorado, 600 US 66 (2023). If the course of conduct alleged involves ONLY speech, then the judge should consider providing the below instruction in addition to the instruction following NOTE 4:
However, the government must prove beyond a reasonable doubt that the accused consciously disregarded a substantial risk that (state the name of alleged victim) would be placed in reasonable fear that (state the name of alleged victim’s) non-compliance would result in (state the name of alleged victim) or another person being subjected to the wrongful action contemplated by the communication.
(“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.)
(“Kidnapping” means the wrongful seizure or confinement and holding of a person against their will. “Wrongful” means without legal justification or excuse. “Holding” means detention. The detention must be more than a momentary or incidental detention. “Against their will” means that the person was held involuntarily. The involuntary nature of the detention may result from force, mental or physical coercion, or from other means, including false representations. (If the person is incapable of having a recognizable will, as in the case of a very young child or a mentally incompetent person, the holding must be against the will of the person’s parents or legal guardian.))
(The person to be (killed) (subjected to grievous bodily harm) (kidnapped) need not be the victim. It is sufficient if the accused threatened or placed the victim in fear that any person would be (killed) (subjected to grievous bodily harm) (kidnapped), which thereby caused the victim to engage in the sexual act.)
NOTE 6: Marriage. Marriage is not a defense to any offense in violation of Article 120. If necessary, include the following instruction:
Marriage is not a defense to this offense.
NOTE 7: Instructing on consent. The issue of “consent” may arise in two ways. First, lack of consent is an element when the accused is charged with rape by administering a drug, intoxicant, or similar substance without the consent of the alleged victim. Lack of consent is not an element when the accused is charged with rape by any other method (to include when the accused is charged with administering a drug, intoxicant, or similar substance by force or by threat of force). See US v. Neal, 68 MJ 289, 302-304 (CAAF 2010) (statutory definition of “force” does not imply an element of lack of consent). Second, evidence of the alleged victim’s consent to the sexual conduct might be introduced with respect to any rape allegation in order to negate the elements of the offense. Generally, the elements of an Article 120(a) offense require the accused to have committed sexual conduct “by” a certain method. Stated another way, “by” means the sexual conduct occurred because of that method. Consent to the sexual conduct logically precludes that causal link; when the alleged victim consented, the sexual conduct occurred because of the consent, not because of the charged method. Accordingly, evidence that the alleged victim consented to the sexual conduct may be relevant to negate an element, even though lack of consent may not be a separate element. If consent evidence has been introduced to negate other elements of the charged offense, give the second parenthetical below, along with the appropriately tailored definitions of consent. If lack of consent to the administration of a drug, intoxicant, or similar substance is an element of the charged offense, give the first parenthetical below, along with the appropriately tailored definitions of consent.
IF LACK OF CONSENT TO THE ADMINISTRATION OF A DRUG, INTOXICANT, OR SIMILAR SUBSTANCE IS AN ELEMENT, GIVE THE FOLLOWING INSTRUCTION: (As I previously advised you, in (The) Specification(s) (__________) of (The) (Additional) Charge (___), the accused is charged with the offense of rape by administering a drug, intoxicant, or other similar substance to (state the name of the alleged victim) without his/her knowledge or consent, thereby substantially impairing the ability of (state the name of the alleged victim) to appraise or control his/her conduct. For this offense, lack of consent to the administration of the drug, intoxicant, or other similar substance is an element of the offense.)
IF CONSENT EVIDENCE HAS BEEN INTRODUCED TO NEGATE OTHER ELEMENTS OF THE CHARGED OFFENSE, GIVE THE FOLLOWING INSTRUCTION: (The evidence has (also) raised the issue of whether (state the name of the alleged victim) consented to the sexual conduct listed in (The) Specification(s) (__________) of (The) (Additional) Charge (___). All of the evidence concerning consent to the sexual conduct is relevant and must be considered in determining whether the government has proven (the elements of the offense) (that the sexual conduct was done by state the applicable element). Stated another way, evidence the alleged victim consented to the sexual conduct, either alone or in conjunction with the other evidence in this case, may cause you to have a reasonable doubt as to whether the government has proven (every element of the offense) (that the sexual conduct was done by state the applicable element).
“Consent” means a freely given agreement to the 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 does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.
(A sleeping, unconscious, or incompetent person cannot consent.)
(A person cannot consent to force causing or likely to cause death or grievous bodily harm.)
(A person cannot consent to being rendered unconscious.)
(A person cannot consent while under threat or in fear.)
(A “competent person” is a person who possesses the physical and mental ability to consent.)
(An “incompetent person” is a person who is incapable of appraising the nature of the conduct at issue, or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act at issue.)
All the surrounding circumstances are to be considered in determining whether a person gave consent.
NOTE 8: Mistake of Fact. The military judge must determine whether a mistake of fact has been raised by the evidence. See RCM 916(j). When the evidence has reasonably raised mistake of fact (e.g., mistake of fact as to consent to the sexual conduct or as to knowledge of or consent to the administration of a drug, intoxicant, or other substance), include the following instruction on honest and reasonable mistake of fact. The judge must carefully evaluate the evidence presented by both sides in such cases to determine the applicability of the following instruction. If instructing on an attempted offense, the honest mistake of fact instruction in Instruction 5-13-1 should be given instead of this instruction.
The evidence has raised the issue of mistake of fact in relation to the offense(s) of (state the alleged offense(s)), as alleged in (the) specification(s) (___) of (the) (additional) Charge (___).
There has been (evidence) (testimony) tending to show that, at the time of the alleged offense(s), the accused mistakenly believed that [(state the name of the victim) consented to the sexual conduct alleged] [(state the name of the victim) (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________] concerning (this) (these) offense(s).
Mistake of fact is a defense to (that) (those) charged offense(s). “Mistake of fact” means the accused held, as a result of ignorance or mistake, an incorrect belief that [the other person consented to the sexual conduct] [the other person (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________].
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, that would indicate to a reasonable person that [the other person consented to the sexual conduct] [the other person (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________]. (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.)
You should consider the inherent probability or improbability of the evidence presented on this matter. You should consider the accused’s (age) (education) (experience) (__________), along with the other evidence in this case (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
The prosecution has the burden of proving beyond a reasonable doubt that the defense of mistake of fact did not exist. If you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused did not believe that [the alleged victim consented to the sexual conduct] [the alleged victim (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________], the defense does not exist. Furthermore, even if you conclude the accused was under a mistaken belief that [the alleged victim consented to the sexual conduct] [the alleged victim (knew of) (consented to) the administration of the drug, intoxicant, or other similar substance] [__________], if you are convinced beyond a reasonable doubt that at the time of the charged offense(s) the accused’s mistake was unreasonable, the defense does not exist.
NOTE 9: Voluntary intoxication and mistake of fact. If the above mistake of fact instruction is given, and there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate.
There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense(s). On the question of whether the accused’s (ignorance) (belief) was reasonable, you may not consider the accused’s intoxication, if any, because a reasonable (ignorance) (belief) is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable (ignorance) (belief) in the mind of a sober person to be considered reasonable because the person is intoxicated.
e. REFERENCES: Definition of “vulva.” See US v Williams, 25 MJ 854 (AFCMR 1988) pet. denied, 27 MJ 166 (CMA 1988); Definition of “competent person.” See US v. Pease, 75 MJ 180 (CAAF 2016).