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) With a loaded firearm: DD, TF, 8 years, E-1. (Category 3)
(2) Committed upon a child under the age of 16 years: DD, TF, 6 years, E-1. (Category 3)
(3) Other cases: DD, TF, 3 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit an assault upon __________ (a child under the age of 16 years) by (shooting) (striking) (cutting) (__________) (him) (her) (on) the __________ with a (loaded firearm) (club) (rock) (brick) (__________) and did thereby inflict substantial bodily harm upon (him) (her), to wit: (severe bruising of the face) (head concussion) (temporary blindness) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (state the manner alleged); (and)
(2) That substantial bodily harm was thereby inflicted upon (state the name of the alleged victim), to wit: (_______); [and]
NOTE 2: Loaded firearm alleged. When a loaded firearm is alleged, add the following element:
[(3)] That the injury was inflicted with a loaded firearm; [and]
NOTE 3: Protected person alleged. When the alleged victim is a protected person, add the following element.
[(3) or (4)] That, at the time, (state the name of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
An assault in which bodily harm is inflicted is called a “battery.” A “battery” is an unlawful infliction of bodily harm to another, made with force or violence, by an intentional (or a culpably negligent) act or omission.
(“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; that is what “due care” means. “Culpable negligence,” on the other hand, is a negligent (act) (or) (failure to act) accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.)
An infliction of bodily harm is “unlawful” if done without legal justification or excuse and without the lawful consent of the victim.
“Bodily harm” means an offensive touching of another, however slight.
“Substantial bodily harm” means a bodily injury that involves a temporary but substantial disfigurement, or a temporary but substantial loss or impairment of function of any bodily member, organ, or mental faculty.
NOTE 4: Loaded firearm alleged. If a loaded firearm is alleged, the below instruction may be appropriate.
“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive. (A fully functional revolver with an automatic rotating cylinder is a loaded weapon if there is a round of live ammunition in any chamber.) (A functional (clip) (magazine) fed weapon is a loaded weapon if there has been inserted into it a (clip) (magazine) containing a round of live ammunition, regardless of whether there is a round in the chamber.)
NOTE 5: 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 the person assaulted was under 16 years of age is not an element of this offense. [The accused’s belief that (state the name of the alleged victim) was (____ years old) (16 years or older) is not a defense to this offense.]
NOTE 6: Consent as a defense. Under certain circumstances, consent may be a defense to simple assault or assault consummated by a battery. See US v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001). Consent is not generally a defense to aggravated assault. See US v. Bygrave, 46 M.J. 491 (CAAF 1997). However, even in aggravated assault cases, military judges must carefully examine the facts and law to determine whether consent is a possible defense. If the judge determines that consent is not a defense, the following instruction may be given, if necessary.
A victim may not lawfully consent to an assault in which substantial bodily harm is inflicted. Consent is not a defense to this offense.