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

ceased to resist only because of a reasonable fear of
death or grievous bodily harm. If there is actual
consent, although obtained by fraud, the act is not
rape, but if to the accused’s knowledge the victim is
of unsound mind or unconscious to an extent rendering
him or her incapable of giving consent, the act is
rape. Likewise, the acquiescence of a child of such
tender years that he or she is incapable of understanding
the nature of the act is not consent.
(c) Character of victim. See Mil. R. Evid. 412
concerning rules of evidence relating to an alleged
rape victim’s character.
( 2 ) C a r n a l k n o w l e d g e . “ C a r n a l k n o w l e d g e ” i s
sexual intercourse under circumstances not amounting
to rape, with a person who is not the accused’s
spouse and who has not attained the age of 16 years.
A n y p e n e t r a t i o n , h o w e v e r s l i g h t , i s s u f f i c i e n t t o
c o m p l e t e t h e o f f e n s e . I t i s a d e f e n s e , h o w e v e r ,
which the accused must prove by a preponderance
of the evidence, that at the time of the act of sexual
intercourse, the person with whom the accused committed
the act of sexual intercourse was at least 12
years of age, and that the accused reasonably believed
that this same person was at least 16 years of
age.
d. Lesser included offenses.
(1) Rape.
(a) Article 128—assault; assault consummated
by a battery
(b) Article 134—assault with intent to commit
rape
(c) Article 134—indecent assault
(d) Article 80—attempts
(e) Article 120(b)—carnal knowledge
(2) Carnal knowledge.
(a) Article 134—indecent acts or liberties with
a person under 16
(b) Article 80—attempts
e. Maximum punishment.
(1) Rape. Death or such other punishment as a
court-martial may direct.
(2) Carnal knowledge with a child who, at the
time of the offense, has attained the age of 12 years.
Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 20 years.
(3) Carnal knowledge with a child under the age
of 12 years at the time of the offense. Dishonorable
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discharge, forfeiture of all pay and allowances, and
confinement for life without eligibility for parole.
f. Sample specifications.
(1) Rape. In that (personal jurisdiction data), did,
(at/on board — location) (subject - matter jurisdiction
data, if required), on or about , rape,
(a person under the age of 12) (a person
who had attained the age of 12 but was under the
age of 16).
(2) Carnal knowledge. In that (personal jurisdiction
data), did, (at/on board — location) (subject -
m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r
a b o u t , c o m m i t t h e o f f e n s e o f c a r n a l
knowledge with , (a person under the
age of 12) (a person who attained the age of 12 but
was under the age of 16).
63. Article 134—(Assault—indecent)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused assaulted a certain person
not the spouse of the accused in a certain manner;
(2) That the acts were done with the intent to
gratify the lust or sexual desires of the accused; and
(3) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation. See paragraph 54c for a discussion
of assault. Specific intent is an element of this offense.
For a definition of ’indecent’, see paragraph
90c.
d. Lesser included offenses.
(1) Article 128—assault consummated by a battery;
assault
(2) Article 134—indecent acts
(3) Article 80—attempts
e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,
forfeiture of all pay and allowances, and confinement
for 5 years.
f. Sample specification. In that (personal jurisdiction
d a t a ) , d i d ( a t / o n b o a r d — l o c a t i o n ) , ( s u b j e c t - m a t t e r
jurisdiction data, if required), on or about ,
commit an indecent assault upon a person not his/
her wife/husband by , with intent to gratify
his/her (lust) (sexual desires).