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, 30 years, E-1. A dishonorable discharge or a dismissal is a mandatory minimum sentence for this offense. (Category 4)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, 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 __________]] [intentionally touching, not through the clothing, the genitalia of ___________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of __________]].
c. ELEMENTS:
(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state the name of the alleged victim), by (state the alleged sexual act); and
(2) That at the time of the sexual act (state the name of the alleged victim) had attained the age of 12 years, but had not attained the age of 16 years.
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;
(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; or
(D) 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.
“Child” means any person who has not attained the age of 16 years.
The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred.
(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: Mistake of fact as to age. Mistake of fact as to age is an affirmative defense to sexual assault of a child. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that mistake existed. When mistake of fact as to age has been raised, include the following instruction. The burden of proof in the instruction below is as provided in the statute.
The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age when the alleged sexual act(s) occurred.
The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).
“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)
The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused’s mistake was reasonable, the defense does not exist.
NOTE 3: Voluntary intoxication and mistake of fact as to age. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:
There is evidence in this case that indicates that, at the time of the alleged sexual assault of a child, the accused may have been under the influence of (alcohol) (drugs). The accused's state of voluntary intoxication, if any, at the time of the offense(s) is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.
NOTE 4: Marriage. It is a defense that the persons engaging in the sexual act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused. If raised by some evidence, the military judge must advise the members that the defense has the burden of proving by a preponderance of the evidence that a marriage existed. When marriage between the accused and the alleged victim of the sexual assault of a child has been raised, include the following instruction:
The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).
It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when they engaged in the sexual act(s). A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.
(The defense of marriage does not exist where the accused commits the alleged sexual act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she/he is asleep, unconscious or otherwise unaware that the sexual act(s) (is) (are) occurring or when she/he is incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.)
The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.
(Even if you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the sexual act(s) occurring) (incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.)