Executive Order 13593, signed by the President on Tuesday, and pending publication in the Federal Register tomorrow, makes the following amendments to the Manual for Courts-Martial, effective on 12 January 2012:

  • Add langauge to M.R.E. 504 (husband-wife privilege) regarding joint criminal activity
  • Remove spouse abuse from the exceptions to the M.R.E. 513 (psychotherapist-patient privilege)
  • Create M.R.E. 514 – Victim advocate – victim privilege
  • Amend M.R.E. 609 to conform to F.R.E. 609
  • Amend the explanation to Article 89 to include uniformed officers of the Public Health Service and the National Oceanic and Atmospheric Administration
  • Amend the sample specification for Article 111, Drunken or reckless operation of vehicle, aircraft or vessel
  • Make a clerical amendment to the explanation to Article 123
  • Enumerate Article 134 offenses of (1) Possessing, receiving, or viewing child pornography, (2) Possessing child pornography with intent to distribute, (3) Distributing child pornography, and (4) Producing child pornography
  • Make a clerical amendment to the first paragraph of the Discussion following R.C.M. 1107(d)(1)

The full text of the amendments creating M.R.E. 514 and the 134 offenses involving Child Pornography follow:

 (c) M.R.E. 514 is added to read as follows:“Rule 514. Victim advocate – victim privilege

 (a) General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the victim and a victim advocate, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or supportive assistance to the victim.

 (b) Definitions. As used in this rule of evidence:

 (1) A “victim” is any person who suffered direct physical or emotional harm as the result of a sexual or violent offense.

 (2) A “victim advocate” is a person who is:

 (A) designated in writing as a victim advocate;

 (B) authorized to perform victim advocate duties in accordance with service regulations, and is acting in the performance of those duties; or

 (C) certified as a victim advocate pursuant to Federal or State requirements.

 (3) A communication is “confidential” if made to a victim advocate acting in the capacity of a victim advocate and if not intended to be disclosed to third persons other than:

 (A) those to whom disclosure is made in furtherance of the rendition of advice or assistance to the victim or

 (B) an assistant to a victim advocate reasonably necessary for such transmission of the communication.

 (4) An “assistant to a victim advocate” is a person directed by or assigned to assist a victim advocate in providing victim advocate services, or is reasonably believed by the victim to be such.

 (5) “Evidence of a victim’s records or communications” is testimony of a victim advocate, or records that pertain to communications by a victim to a victim advocate, for the purposes of advising or providing supportive assistance to the victim.

 (c) Who may claim the privilege. The privilege may be claimed by the victim or any guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a defense counsel representing the victim to claim the privilege on his or her behalf. The victim advocate who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, guardian, conservator, or a defense counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary.

 (d) Exceptions. There is no privilege under this rule:

 (1) when the victim is dead;

 (2) when Federal law, State law, or service regulation imposes a duty to report information contained in a communication;

 (3) if the communication clearly contemplated the future commission of a fraud or crime or if the services of the victim advocate are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud;

 (4) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;

 (5) when necessary to ensure the safety of any other person (including the victim) when a victim advocate believes that a victim’s mental or emotional condition makes the victim a danger; or

 (6) when admission or disclosure of a communication is constitutionally required.

 (e) Procedure to determine admissibility of victim records or communications.

 (1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party shall:

 (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

 (B) serve the motion on the opposing party, the military judge and, if practical, notify the victim or the victim’s guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subparagraph (e)(2).

 (2) Before ordering the production or admission of evidence of a victim’s records or communication, the military judge shall conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim shall be afforded a reasonable opportunity to attend the hearing and be heard at the victim’s own expense unless the victim has been otherwise subpoenaed or ordered to appear at the hearing. However, the proceedings shall not be unduly delayed for this purpose. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members.

 (3) The military judge shall examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

 (4) To prevent unnecessary disclosure of evidence of a victim’s records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

 (5) The motion, related papers, and the record of the hearing shall be sealed and shall remain under seal unless the military judge or an appellate court orders otherwise.

  

 (d) Paragraph 68b. is added as follows:

 “68b. Article 134 (Child pornography)

 a. Text of Statute. See paragraph 60.

 b. Elements.

 (1) Possessing, receiving, or viewing child pornography.

 (a) That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and

 (b) 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.

 (2) Possessing child pornography with intent to distribute.

 (a) That the accused knowingly and wrongfully possessed child pornography;

 (b) That the possession was with the intent to distribute; and

 (c) 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.

 (3) Distributing child pornography.

 (a) That the accused knowingly and wrongfully distributed child pornography to another; and

 (b) 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.

 (4) Producing child pornography.

 (a) That the accused knowingly and wrongfully produced child pornography; and

 (b) 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.

 (1) “Child Pornography” means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.

 (2) An accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography if he was not aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness may be inferred from circumstantial evidence such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed.

 (3) “Distributing” means delivering to the actual or constructive possession of another.

 (4) “Minor” means any person under the age of 18 years.

 (5) “Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.

 (6) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.

 (7) “Sexually explicit conduct” means actual or simulated:

 (a) sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

 (b) bestiality;

 (c) masturbation;

 (d) sadistic or masochistic abuse; or

 (e) lascivious exhibition of the genitals or pubic area of any person.

 (8) “Visual depiction” includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image.

 (9) “Wrongfulness.” Any facts or circumstances that show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not limited to, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement.

 (10) On motion of the government, in any prosecution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence.

 d. Lesser included offenses.

 (1) Possessing, receiving, or viewing child pornography.
 Article 80-attempts.

 (2) Possessing child pornography with intent to distribute.
 Article 80-attempts.
 Article 134-possessing child pornography.

 (3) Distributing child pornography.
 Article 80-attempts.
 Article 134-possessing child pornography.
 Article 134-possessing child pornography with intent to distribute.

 (4) Producing child pornography.
 Article 80-attempts.
 Article 134-possessing child pornography.

 e. Maximum punishment.

 (1) Possessing, receiving, or viewing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
 (2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
 (3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
 (4) Producing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

 f. Sample specification.

 Possessing, receiving, viewing, possessing with intent to distribute, distributing, or producing child pornography.

 In that (personal jurisdiction data), did (at/on board— location),on or about ______, 20____ knowingly and wrongfully (possess)(receive)(view) (distribute) (produce) child pornography, to wit: a (photograph)(picture)(film)(video) (digital image)(computer image) of a minor, or what appears to be a minor, engaging in sexually explicit conduct(, with intent to distribute the said child pornography), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (or) (and was) (of a nature to bring discredit upon the armed forces).”

 

One Response to “2011 Amendments to the Manual for Courts-Martial”

  1. Phil Cave says:

    1.  To what extent might a “future” crime exception be applied to 514?

    2.  Lawyers, priests, psychs, have a requirement to disclose certain future crimes, do they not?  Or at least not cooperate.

    3.  Perjury is a crime?

    4.  Why should a VA be any different?  Assuming a future crime exception to 514, would the VA have to follow it?