2008 edition - Fort Sam Houston - U.S. Army

Pun. Art. 119 APPENDIX 23
slaughter. See United States v. Emmons, 31 M.J. 108 (C.M.A.
1990).
45. Article 120— Rape, sexual assault, and other
sexual misconduct
b. Elements. 2004 Amendment: Paragraph 45(b)(2) was amended
to add two distinct elements of age based upon the 1994 amendment
to paragraph 45(e). See also concurrent change to R.C.M.
307(c)(3) and accompanying analysis.
c. Explanation. This paragraph is based on paragraph 199 of
MCM, 1969 (Rev.). The third paragraph of paragraph 199(a) was
deleted as unnecessary. The third paragraph of paragraph 199(b)
was deleted based on the preemption doctrine. See United States
v. Wright, 5 M.J. 106 (C.M.A. 1978); United States v. Norris, 2
U.S.C.M.A. 236, 8 C.M.R. 36 (1953). Cf. Williams v. United
States, 327 U.S. 711 (1946) (scope of preemption doctrine). The
Military Rules of Evidence deleted the requirement for corroboration
of the victim’s testimony in rape and similar cases under
former paragraph 153 a of MCM, 1969. See Analysis, Mil. R.
Evid. 412.
d. Lesser included offenses. Carnal knowledge was deleted as a
lesser included offense of rape in view of the separate elements in
each offense. Both should be separately pleaded in a proper case.
See generally United States v. Smith , 7 M.J. 842 (A.C.M.R.
1979).
1993 Amendment. The amendment to para 45 d(1) represents
an administrative change to conform the Manual with case authority.
Carnal knowledge is a lesser included offense of rape
where the pleading alleges that the victim has not attained the age
of 16 years. See United States v. Baker, 28 M.J. 900 (A.C.M.R.
1989); United States v. Stratton, 12 M.J. 998 (A.F.C.M.R. 1982),
pet. denied, 15 M.J. 107 (C.M.A. 1983); United States v. Smith, 7
M.J. 842 (A.C.M.R. 1979).
e. Maximum punishment.
1994 Amendment. Subparagraph e was amended by creating
two distinct categories of carnal knowledge for sentencing purposes
-- one involving children who had attained the age of 12
years at the time of the offense, now designated as subparagraph
e(2), and the other for those who were younger than 12 years.
The latter is now designated as subparagraph e(3). The punishment
for the older children was increased from 15 to 20 years
confinement. The maximum confinement for carnal knowledge of
a child under 12 years was increased to life. The purpose for
these changes is to bring the punishments more in line with those
for sodomy of a child under paragraph 51e of this part and with
the Sexual Abuse Act of 1986, 18 U.S.C. §§ 2241–2245. The
alignment of the maximum punishments for carnal knowledge
with those of sodomy is aimed at paralleling the concept of
gender–neutrality incorporated into the Sexual Abuse Act.
1995 Amendment. The offense of rape was made gender neutral
and the spousal exception was removed under Article 120(a).
National Defense Authorization Act for Fiscal Year 1993, Pub. L.
No. 102–484, 106 Stat. 2315, 2506 (1992).
Rape may “be punished by death” only if constitutionally permissible.
In Coker v. Georgia, 433 U.S. 584 (1977), the Court
held that the death penalty is “grossly disproportionate and excess
i v e p u n i s h m e n t f o r t h e r a p e o f a n a d u l t w o m a n , ” a n d i s
“therefore forbidden by the Eighth Amendment as cruel and unu-
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sual punishment.” Id. at 592 (plurality opinion). Coker, however,
leaves open the question of whether it is permissible to impose
the death penalty for the rape of a minor by an adult. See Coker,
433 U.S. at 595. See Leatherwood v. State, 548 So.2d 389 (Miss.
1989) (death sentence for rape of minor by an adult is not cruel
and unusual punishment prohibited by the Eighth Amendment).
But see Buford v. State, 403 So.2d 943 (Fla. 1981) (sentence of
death is grossly disproportionate for sexual assault of a minor by
an adult and consequently is forbidden by Eighth Amendment as
cruel and unusual punishment).
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 make the offense gender neutral and create a mistake
of fact as to age 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.
f . S a m p l e S p e c i f i c a t i o n . 2 0 0 4 A m e n d m e n t : P a r a g r a p h 4 5 ( f ) ( 2 )
was amended to aid practitioners in charging the two distinct
categories of carnal knowledge created in 1994. For the same
reason paragraph 45(f)(1) was amended to allow for contingencies
of proof because carnal knowledge is a lesser-included offense
of rape if properly pleaded. See also concurrent change to
R.C.M.307(c)(3) and accompanying analysis.
2007 Amendment: Changes to this paragraph are contained in
Div. A. Title V. Subtitle E, Section 552(a)(1) of the National
Defense Authorization Act for Fiscal Year 2006, P.L. 109-163,
119 Stat. 3257 (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. In accordance with Section 552(c) of that Act, the
amendment to the Article applies only with respect to offenses
committed on or after 1 October 2007.
Nothing in these amendments invalidates any nonjudicial punishment
proceeding, restraint, investigation, referral of charges,
trial in which arraignment occurred, or other action begun prior to
1 October 2007. Any such nonjudical punishment proceeding,
restraint, investigation, referral of charges, trial in which arraignment
occurred, or other action may proceed in the same manner
and with the same effect as if these amendments had not been
prescribed.
This new Article 120 consolidates several sexual misconduct
offenses and is generally based on the Sexual Abuse Act of 1986,
18 U.S.C. Sections 2241-2245. The following is a list of offenses
that have been replaced by this new paragraph 45:
(1) Paragraph 63, 134 Assault - Indecent, has been replaced in
its entirety by three new offenses under paragraph 45. See subsections
(e) Aggravated Sexual Contact, (h) Abusive Sexual Contact,
and (m) Wrongful Sexual Contact.
(2) Paragraph 87, 134 Indecent Acts or Liberties with a Child,
has been replaced in its entirety by three new offenses under
paragraph 45. See subsections (g) Aggravated Sexual Contact
with a Child, (i) Abusive Sexual Contact with a Child, and (j)
Indecent Liberty with a Child.
(3) Paragraph 88, Article 134 Indecent Exposure, has been
replaced in its entirety by a new offense under paragraph 45. See
subsection (n) Indecent Exposure.
(4) Paragraph 90, Article 134 Indecent Acts with Another, has