2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
App. 21, R.C.M. 916(b) APPENDIX 21 based on the fifth paragraph of paragraph 214 of MCM, 1969 (Rev.). The second paragraph in the discussion is based on United States v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v. Walker, 21 U.S.C.M.A. 376, 45 C.M.R.150 (1972); United States v. Ducksworth, 13 U.S.C.M.A. 515, 33 C.M.R. 47 (1963); United States v. Bellamy, 47 C.M.R. 319 (A.C.M.R. 1973). It is unclear whether, under some circumstances, an accused’s testimony may negate a defense which might otherwise have been raised by the evidence. See United States v. Garcia, supra. 1986 Amendment: The requirement that the accused prove lack of mental responsibility was added to implement Article 50 a, which was added to the UCMJ in the “Military Justice Amendments of 1986,” Tit. VIII, § 802, National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). Article 50a(b) adopted the provisions of 18 U.S.C. 20(b), created by the Insanity Defense Reform Act, ch. IV, Pub. L. No. 98-473, 98 Stat. 2057 (1984). See generally Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 3051 n.17 (1983); Leland v. Oregon, 343 U.S. 790, 799 (1952); S.Rep. No. 225, 98th Cong., 1st Sess. 224-25 (1983), reprinted in 1984 U.S. Code Cong. & Ad. News 1, 226-27. 1998 Amendment: In enacting section 1113 of the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104- 106, 110 Stat. 186, 462 (1996), Congress amended Article 120, UCMJ, to create a mistake of fact defense to a prosecution for carnal knowledge. The accused must prove by a preponderance of the evidence that the person with whom he or she had sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this person was at least 16 years of age. The changes to R.C.M. 916(b) and (j) implement this amendment. 2007 Amendment: Changes to this paragraph, deleting “carnal knowledge”, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. (c) Justification. This subsection and the discussion are based on paragraph 216 a of MCM, 1969 (Rev.). See also United States v. Evans. 17 U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v. Regalado, 13 U.S.C.M.A. 480, 33 C.M.R. 12 (1963); United States v. Hamilton, 10 U.S.C.M.A. 130, 27 C.M.R. 204 (1959). The last sentence in the discussion is based on the second sentence of paragraph 195 b of MCM (1951). (d) Obedience to orders. This subsection is based on paragraph 2 1 6 d o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . C a l l e y , 2 2 U.S.C.M.A. 534, 48 C.M.R. 19 (1973); United States v. Cooley, 16 U.S.C.M.A. 24, 36 C.M.R. 180 (1966). See also United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973). (e) Self-defense. Subsection (1) is based on the first paragraph of paragraph 216 c of MCM, 1969 (Rev.). The discussion is based on the second paragraph of paragraph 216 c of MCM 1967 (Rev.). See also United States v. Jackson, 15 U.S.C.M.A. 603, 36 C.M.R. 101 (1966). Subsection (2) is new and is based on United States v. Acosta- Vergas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962). Subsection (3) is based on the fourth paragraph of paragraph 216 c of MCM, 1969 (Rev.). See also United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977). The second paragraph in the discussion is A21-64 based on United States v. Jones, 3 M.J. 279 (1977). See also United States v. Thomas, 11 M.J. 315 (C.M.A. 1981). 1986 Amendment: References to subsections “(c)(1) or (2)” was changed to “(e)(1) or (2)” to correct an error in MCM, 1984. Subsection (4) is based on the third paragraph of paragraph 216 c of MCM, 1969 (Rev.). See also United States v. Yabut, 20 U.S.C.M.A. 393, 43 C.M.R. 233 (1971); United States v. Green, 1 3 U . S . C . M . A . 5 4 5 , 3 3 C . M . R . 7 7 ( 1 9 6 3 ) ; U n i t e d S t a t e s v . Brown, 13 U.S.C.M.A. 485, 33 C.M.R. 7 (1963). The second paragraph in the discussion is based on United States v. Smith, 13 U.S.C.M.A. 471, 33 C.M.R. 3 (1963). Subsection (5) is based on paragraph 216c of MCM, 1969 (Rev.) which described self-defense in terms which also apply to defense of another. It is also based on United States v. Styron, 21 C.M.R. 579 (C.G.B.R. 1956); United States v. Hernandez, 19 C.M.R. 822 (A.F.B.R. 1955). But see R. Perkins, Criminal Law 1018-1022 (2d ed. 1969). (f) Accident. This subsection and the discussion are based on paragraph 216 b of MCM, 1969 (Rev.). See also United States v. Tucker, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); United States v. Redding, 14 U.S.C.M.A. 242, 24 C.M.R. 22 (1963); United S t a t e s v . S a n d o v a l , 4 U . S . C . M . A . 6 1 , 1 5 C . M . R . 6 1 ( 1 9 5 4 ) ; United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972). (g) Entrapment. This subsection and the discussions are based on paragraph 216 e of MCM, 1969 (Rev.). See also United States v. Vanzandt, 14 M.J. 332 (C.M.A. 1982). (h) Coercion or duress. This subsection is based on paragraph 216 f of MCM, 1969 (Rev.). Paragraph 216 f required that the fear of the accused be that the accused would be harmed. This test was too narrow, as the fear of injury to relatives or others may be a basis for this defense. United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976); United States v. Pinkston, 18 U.S.C.M.A. 261, 39 C.M.R. 261 (1969). The discussion is based on United States v. Jemmings, supra. (i) Inability. This subsection is based on paragraph 216 g of MCM, 1969 (Rev.). See United States v. Cooley, supra; United States v. Pinkston , 6 U.S.C.M.A. 700, 21 C.M.R. 22 (1956); U n i t e d S t a t e s v . H e i m s , 3 U . S . C . M . A . 4 1 8 , 1 2 C . M . R . 1 7 4 (1953). (j) Ignorance or mistake of fact. This subsection is based on paragraph 216 i of MCM, 1969 (Rev.); United States v. Jenkins, 22 U.S.C.M.A. 365, 47 C.M.R. 120 (1973); United States v. Hill, 13 U.S.C.M.A. 158, 32 C.M.R. 158, (1962); United States v. Greenwood, 6 U.S.C.M.A. 209, 19 C.M.R. 335 (1955); United States v. Graham, 3 M.J. 962 (N.C.M.R.), pet denied, 4 M.J. 124 (1977); United States v. Coker, 2. M.J. 304 (A.F.C.M.R. 1976), rev’d on other grounds, 4 M.J. 93 (C.M.A. 1977). See also United States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973), aff’d, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973). 1998 Amendment: In enacting section 1113 of the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104- 106, 110 Stat. 186, 462(1996), Congress amended Article 120, UCMJ to create a mistake of fact defense to a prosecution for carnal knowledge. The accused must prove by a preponderance of the evidence that the person with whom he or she had sexual intercourse was at least 12 years of age, and that the accused reasonably believed that this person was at least 12 years of age, and that the accused reasonably believed that this person was at
least 16 years of age. The changes to R.C.M. 916(b) and (j) implement this amendment. 2007 Amendment: Changes to this paragraph, deleting “carnal knowledge” and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. Paragraph (j)(3) is new and is based on the mistake of fact defense incorporated in section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. (k) Lack of mental responsibility. Subsection (1) is taken from paragraph 120 b of MCM, 1969 (Rev). See also United States v. Frederick, 3 M.J. 230 (C.M.A. 1977). 1986 Amendment: The test for lack of mental responsibility in subsection (1) was changed to implement Article 50a, which was added to the UCMJ in the “Military Justice Amendments of 1986, ” tit. VIII, 802, National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 stat. 3905 (1986). Article 50a is modeled on 18 U.S.C. 20. See Insanity Defense Reform Act, ch. IV, Pub. L. No. 98-473, 98 Stat. 2057 (1984). The new test d e l e t e s t h e v o l i t i o n a l p r o n g o f t h e A m e r i c a n L a w I n s t i t u t e ’ s Model Penal Code Standard (see United States v. Lyons, 731 F.2d 243 (5th Cir. 1984) (en banc), cert. denied, 105 S. Ct. 323 (1985)), which was applied to courts-martial in United States v. Frederick, 3 M.J. 230 (C.M.A. 1977). The new standard also changes the quantity of mental disability necessary to establish the defense from “lacks substantial capacity to appreciate” to being “unable to appreciate.” The new test is very similar to the test in M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng. Rep. 718 (House of Lords. 1843). See also Carroll, Insanity Defense Reform, 114 Mil. L. Rev. 183 (1986). 2004 Amendment: The Discussion to R.C.M. 916(k)(1) was amended to add a cross-reference to R.C.M. 1102A. Subsection (2) is taken from paragraph 120 c of MCM, 1969 (Rev.). See also United States v. Higgins, 4 U.S.C.M.A. 143, 15 C.M.R. 143 (1954). 1986 Amendment: Subsection (2) was amended to eliminate the defense of partial mental responsibility in conformance with Article 50a, which was added to the UCMJ in the “Military Justice Amendments of 1986,” tit. VIII 802, National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). Article 50a(a) is adopted from 18 U.S.C. § 20(a). Congress wrote the last sentence of 18 U.S.C. § 20(a) (now also the last sentence of Article 50(a)) “to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had has a ædiminished responsibilityÆ on some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony.” S.Rep. No. 225, 98th Cong. 1st Sess. 229(1983), reprinted in 1984 U.S.Code Cong. & Ad. News 1. 231. See Muench v. Israel, 715 F.2d 1124 (7th Cir. 1983), cert. denied, 104 S.Ct. 2682 (1984); State v. Wilcox, 436 N.E. 2d 523 (Ohio 1982). Because the language of section 20(a) and its legislative history ANALYSIS App. 21, R.C.M. 917(a) h a v e b e e n c o n t e n d e d t o b e s o m e w h a t a m b i g u o u s r e g a r d i n g “diminished capacity” or “diminished responsibility,” this aspect of the legislation has been litigated in Article III courts. United States v. Pohlot, Crim. No. 85-00354-01 (E.D. Pa. March 31, 1986) held that section 20(a) eliminated the defense of diminished capacity. See also United States v. White, 766 F.2d 22, 24-25 (1st Cir. 1985); U.S. DEPARTMENT OF JUSTICE, HANDBOOK O N T H E C O M P R E H E N S I V E C R I M E C O N T R O L A C T O F 1984 AND OTHER CRIMINAL STATUTES ENACTED BY THE 98TH CONGRESS 58, 60 (December 1984). Contra United States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 1985) (holding that Congress did not intend to eliminate the defense of diminished capacity). See also Carroll, Insanity Defense Reform, 114 Mil. L. Rev. 183, 196 (1986). The drafters concluded that Congress intended to eliminate this defense in section 20(a). 2004 Amendment: Subsection (k)(2) was modified to clarify that evidence of an accused’s impaired mental state may be admissible. See United States v. Schap, 49 M.J. 317 (1998); United States v. Berri, 33 M.J. 337 (C.M.A. 1991); Ellis v. Jacob, 26 M.J. 90 (C.M.A. 1988). Subsection (3)(A) and the discussion are based on paragraph 122 a of MCM, 1969 (Rev.). Several matters in paragraph 122a are covered in other parts of this subsection or in R.C.M. 909. 1986 Amendment: Subsection (3)(A) was amended to conform to article 50a(b) and R.C.M. 916(b). Subsection (3)(B) and the discussion are based on paragraph 122 b(2) of MCM, 1969 (Rev.). The procedures for an inquiry i n t o t h e m e n t a l r e s p o n s i b i l i t y o f t h e a c c u s e d a r e c o v e r e d i n R.C.M. 706. Subsection (3)(C) is new. Article 51(b) prohibits a military judge from ruling finally on the factual question of mental responsibility. It does not, however, require that the question be treated as an interlocutory one, and there is no apparent reason for doing so. The import of Article 51(b) is that the issue of mental responsibility may not be removed from the factfinder. Moreover, to permit mental responsibility to be treated separately from other issues relating to the general issue could work to the detriment of the accused. Cf. United States v. Laws, 11 M.J. 475 (C.M.A. 1981). (1) Not defenses generally. Subsection (1) is based on the first sentence of paragraph 216 j of MCM, 1969 (Rev.). The discussion is based on the remainder of paragraph 216 j of MCM, 1969 (Rev.); R. Perkins, supra at 920-38. See also United States v. Sicley, 6 U.S.C.M.A. 402, 20 C . M . R . 1 1 8 ( 1 9 5 5 ) ; U n i t e d S t a t e s v . B i s h o p , 2 M . J . 7 4 1 (A.F.C.M.R.), pet, denied, 3 M.J. 184 (1977). Subsection (2) is based on paragraph 216h of MCM, 1969 (Rev.). See also United States v. Hernandez, 20 U.S.C.M.A. 219 43 C.M.R. 59 (2970); United States v. Ferguson, 17 U.S.C.M.A. 441, 38 C.M.R. 239 (1968); United States v. Garcia, 41 C.M.R. 638 (A.C.M.R. 1969). See United States v. Santiago-Vargas, 5 M.J. (C.M.A. 1978) (pathological intoxication). Rule 917 Motion for a finding of not guilty (a) In general. This subsection is based on Fed. R. Crim. P. 29(a) and on the first two sentences of paragraph 71 a of MCM, 1969 (Rev.). Paragraph 71 a did not expressly provide for a motion for a finding of not guilty to be made sua sponte, as does Fed. R. Crim. P. 29(a). Unlike Fed. R. Crim. P. 29, this rule requires the motion to be resolved before findings are entered. If the evidence A21-65
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App. 21, R.C.M. 916(b) APPENDIX 21<br />
based on the fifth paragraph of paragraph 214 of MCM, 1969<br />
(Rev.). The second paragraph in the discussion is based on United<br />
States v. Garcia, 1 M.J. 26 (C.M.A. 1975); United States v.<br />
Walker, 21 U.S.C.M.A. 376, 45 C.M.R.150 (1972); United States<br />
v. Ducksworth, 13 U.S.C.M.A. 515, 33 C.M.R. 47 (1963); United<br />
States v. Bellamy, 47 C.M.R. 319 (A.C.M.R. 1973). It is unclear<br />
whether, under some circumstances, an accused’s testimony may<br />
negate a defense which might otherwise have been raised by the<br />
evidence. See United States v. Garcia, supra.<br />
1986 Amendment: The requirement that the accused prove lack<br />
of mental responsibility was added to implement Article 50 a,<br />
which was added to the UCMJ in the “Military Justice Amendments<br />
of 1986,” Tit. VIII, § 802, National Defense Authorization<br />
Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905<br />
(1986). Article 50a(b) adopted the provisions of 18 U.S.C. 20(b),<br />
created by the Insanity Defense Reform Act, ch. IV, Pub. L. No.<br />
98-473, 98 Stat. 2057 (1984). See generally Jones v. United<br />
States, 463 U.S. 354, 103 S. Ct. 3043, 3051 n.17 (1983); Leland<br />
v. Oregon, 343 U.S. 790, 799 (1952); S.Rep. No. 225, 98th<br />
Cong., 1st Sess. 224-25 (1983), reprinted in 1984 U.S. Code<br />
Cong. & Ad. News 1, 226-27.<br />
1998 Amendment: In enacting section 1113 of the National<br />
Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-<br />
106, 110 Stat. 186, 462 (1996), Congress amended Article 120,<br />
UCMJ, to create a mistake of fact defense to a prosecution for<br />
carnal knowledge. The accused must prove by a preponderance of<br />
the evidence that the person with whom he or she had sexual<br />
intercourse was at least 12 years of age, and that the accused<br />
reasonably believed that this person was at least 16 years of age.<br />
The changes to R.C.M. 916(b) and (j) implement this amendment.<br />
2007 Amendment: Changes to this paragraph, deleting “carnal<br />
knowledge”, are based on section 552 of the National Defense<br />
Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January<br />
2006, which supersedes the previous paragraph 45, Rape and<br />
Carnal Knowledge, in its entirety and replaces paragraph 45 with<br />
Rape, sexual assault and other sexual misconduct.<br />
(c) Justification. This subsection and the discussion are based on<br />
paragraph 216 a of MCM, 1969 (Rev.). See also United States v.<br />
Evans. 17 U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v.<br />
Regalado, 13 U.S.C.M.A. 480, 33 C.M.R. 12 (1963); United<br />
States v. Hamilton, 10 U.S.C.M.A. 130, 27 C.M.R. 204 (1959).<br />
The last sentence in the discussion is based on the second sentence<br />
of paragraph 195 b of MCM (1951).<br />
(d) Obedience to orders. This subsection is based on paragraph<br />
2 1 6 d o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . C a l l e y , 2 2<br />
U.S.C.M.A. 534, 48 C.M.R. 19 (1973); United States v. Cooley,<br />
16 U.S.C.M.A. 24, 36 C.M.R. 180 (1966). See also United States<br />
v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973).<br />
(e) Self-defense. Subsection (1) is based on the first paragraph of<br />
paragraph 216 c of MCM, 1969 (Rev.). The discussion is based<br />
on the second paragraph of paragraph 216 c of MCM 1967<br />
(Rev.). See also United States v. Jackson, 15 U.S.C.M.A. 603, 36<br />
C.M.R. 101 (1966).<br />
Subsection (2) is new and is based on United States v. Acosta-<br />
Vergas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962).<br />
Subsection (3) is based on the fourth paragraph of paragraph<br />
216 c of MCM, 1969 (Rev.). See also United States v. Sawyer, 4<br />
M.J. 64 (C.M.A. 1977). The second paragraph in the discussion is<br />
A21-64<br />
based on United States v. Jones, 3 M.J. 279 (1977). See also<br />
United States v. Thomas, 11 M.J. 315 (C.M.A. 1981).<br />
1986 Amendment: References to subsections “(c)(1) or (2)”<br />
was changed to “(e)(1) or (2)” to correct an error in MCM, 1984.<br />
Subsection (4) is based on the third paragraph of paragraph 216<br />
c of MCM, 1969 (Rev.). See also United States v. Yabut, 20<br />
U.S.C.M.A. 393, 43 C.M.R. 233 (1971); United States v. Green,<br />
1 3 U . S . C . M . A . 5 4 5 , 3 3 C . M . R . 7 7 ( 1 9 6 3 ) ; U n i t e d S t a t e s v .<br />
Brown, 13 U.S.C.M.A. 485, 33 C.M.R. 7 (1963). The second<br />
paragraph in the discussion is based on United States v. Smith, 13<br />
U.S.C.M.A. 471, 33 C.M.R. 3 (1963).<br />
Subsection (5) is based on paragraph 216c of MCM, 1969<br />
(Rev.) which described self-defense in terms which also apply to<br />
defense of another. It is also based on United States v. Styron, 21<br />
C.M.R. 579 (C.G.B.R. 1956); United States v. Hernandez, 19<br />
C.M.R. 822 (A.F.B.R. 1955). But see R. Perkins, Criminal Law<br />
1018-1022 (2d ed. 1969).<br />
(f) Accident. This subsection and the discussion are based on<br />
paragraph 216 b of MCM, 1969 (Rev.). See also United States v.<br />
Tucker, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); United States<br />
v. Redding, 14 U.S.C.M.A. 242, 24 C.M.R. 22 (1963); United<br />
S t a t e s v . S a n d o v a l , 4 U . S . C . M . A . 6 1 , 1 5 C . M . R . 6 1 ( 1 9 5 4 ) ;<br />
United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972).<br />
(g) Entrapment. This subsection and the discussions are based on<br />
paragraph 216 e of MCM, 1969 (Rev.). See also United States v.<br />
Vanzandt, 14 M.J. 332 (C.M.A. 1982).<br />
(h) Coercion or duress. This subsection is based on paragraph<br />
216 f of MCM, 1969 (Rev.). Paragraph 216 f required that the<br />
fear of the accused be that the accused would be harmed. This<br />
test was too narrow, as the fear of injury to relatives or others<br />
may be a basis for this defense. United States v. Jemmings, 1 M.J.<br />
414 (C.M.A. 1976); United States v. Pinkston, 18 U.S.C.M.A.<br />
261, 39 C.M.R. 261 (1969). The discussion is based on United<br />
States v. Jemmings, supra.<br />
(i) Inability. This subsection is based on paragraph 216 g of<br />
MCM, 1969 (Rev.). See United States v. Cooley, supra; United<br />
States v. Pinkston , 6 U.S.C.M.A. 700, 21 C.M.R. 22 (1956);<br />
U n i t e d S t a t e s v . H e i m s , 3 U . S . C . M . A . 4 1 8 , 1 2 C . M . R . 1 7 4<br />
(1953).<br />
(j) Ignorance or mistake of fact. This subsection is based on<br />
paragraph 216 i of MCM, 1969 (Rev.); United States v. Jenkins,<br />
22 U.S.C.M.A. 365, 47 C.M.R. 120 (1973); United States v. Hill,<br />
13 U.S.C.M.A. 158, 32 C.M.R. 158, (1962); United States v.<br />
Greenwood, 6 U.S.C.M.A. 209, 19 C.M.R. 335 (1955); United<br />
States v. Graham, 3 M.J. 962 (N.C.M.R.), pet denied, 4 M.J. 124<br />
(1977); United States v. Coker, 2. M.J. 304 (A.F.C.M.R. 1976),<br />
rev’d on other grounds, 4 M.J. 93 (C.M.A. 1977). See also United<br />
States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973), aff’d,<br />
22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973).<br />
1998 Amendment: In enacting section 1113 of the National<br />
Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-<br />
106, 110 Stat. 186, 462(1996), Congress amended Article 120,<br />
UCMJ to create a mistake of fact defense to a prosecution for<br />
carnal knowledge. The accused must prove by a preponderance of<br />
the evidence that the person with whom he or she had sexual<br />
intercourse was at least 12 years of age, and that the accused<br />
reasonably believed that this person was at least 12 years of age,<br />
and that the accused reasonably believed that this person was at