Executive Order 13593

Executive Order 13593 of December 13, 2011

2011 Amendments to the Manual for Courts-Martial, United States

By the authority vested in me as President by the Constitution and the laws of the United States of America, including chapter 47 of title 10, United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-946), and in order to prescribe amendments to the Manual for Courts-Martial, United States, prescribed by Executive Order 12473, as amended, it is hereby ordered as follows:

Section 1. 

Parts III and IV of the Manual for Courts-Martial, United States, are amended as described in the Annex attached and made a part of this order.

Sec. 2. 

These amendments shall take effect 30 days from the date of this order.

(a)		Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the effective date of this order that was not punishable when done or omitted.
(b)		Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.

Barack Obama

The White House,

December 13, 2011.

[FR Doc. 2011–32486 Filed 12–15–11; 11:15 am]
Billing Code 3295–F2–P
Billing Code 5000–04–C

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annex

Section 1.

Part III of the Manual for Courts-Martial, United States, is amended as follows:

(a)

M.R.E. 504(c)(2)(D) is added to read as follows:

“(D)

Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b) and are not entitled to protection under the privilege in subdivision (b).”.

(b)

M.R.E. 513(d)(2) is amended—

(1)		to delete “spouse abuse, child abuse, or” and insert “child abuse or of”; and
(2)		to delete “the person of the other spouse or”.

(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)

The following amendments conform M.R.E. 609 to F.R.E. 609:

(1)		M.R.E. 609(a) is amended to substitute the words “character for truthfulness” for the word “credibility.”
(2)		M.R.E. 609(a)(2) is amended to substitute the words “regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness” for the words “if it involved dishonesty or false statement, regardless of the punishment”.
(3)		M.R.E. 609(c) is amended to substitute the words “a subsequent crime that was punishable by death, dishonorable discharge, or imprisonment in excess of one year” for the words “a subsequent crime which was punishable by death, dishonorable discharge, or imprisonment in excess of one year”.

Sec. 2.

Part IV of the Manual for Courts-Martial, United States, is amended as follows:

(a)

Paragraph 13, Article 89, Disrespect toward a superior commissioned officer, paragraph c.(1) is amended to substitute the words “uniformed service” for “armed forces” and “armed force” everywhere the words “armed forces” or “armed force” appear in that paragraph. (This change is made to clarify that the uniformed officers of the Public Health Service and the National Oceanic and Atmospheric Administration, when assigned to and serving with the armed forces, are included in the definition of a superior commissioned officer.)

(b)

Paragraph 35, Article 111, Drunken or reckless operation of vehicle, aircraft or vessel, paragraph f. is amended to read as follows:

“f.

Sample Specification. In that _____________________ (personal jurisdiction data), did (at/on board ______________ location) (subject matter jurisdiction data, if required), on or about ______________, 20____, (in the motor pool area) (near the Officer’s Club) (at the intersection of ________________ and _____________) (while in the Gulf of Mexico) (while in flight over North America) physically control [a vehicle, to wit: (a truck) (a passenger car) (_____________)] [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (______________)] [a vessel, to wit: (the aircraft carrier USS ___________) (the Coast Guard Cutter ____________) (________________)], [while drunk] [while impaired by ____________] [while the alcohol concentration in his (blood or breath) equaled or exceeded the applicable limit under subparagraph (b) of the text of the statute in paragraph 35 as shown by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve) (by ordering that the aircraft be flown below the authorized altitude)] [and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) (injure_________________)].”

(c)

Paragraph 48, Article 123, Forgery, paragraph c.(4) to add the word “to” after the word “liability” the second time it appears in the fifth sentence.

(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).”

Changes to the Discussion accompanying the Manual for Courts-Martial, United States

(a)

A clerical amendment is made to the first paragraph of the Discussion following R.C.M. 1107(d)(1) to correctly reference R.C.M. 1003(b)(5) and (6) instead of R.C.M. 1003(b)(6) and (7).

Notes

Amends

Manual for Courts-Martial, United States, 1984 Executive Order 12473, April 13, 1984 Amendments: Executive Order 12484, July 13, 1984; Executive Order 12550, February 19, 1986; Executive Order 12586, March 3, 1987; Executive Order 12708, March 23, 1990; Executive Order 12767, June 27, 1991; Executive Order 12888, December 23, 1993; Executive Order 12936, November 10, 1994; Executive Order 12960, May 12, 1995; Executive Order 13086, May 27, 1998; Executive Order 13140, October 6, 1999; Executive Order 13262, April 11, 2002; Executive Order 13365, December 3, 2004; Executive Order 13387, October 14, 2005; Executive Order 13430, April 18, 2007 Executive Order 13447, September 28, 2007; Executive Order 13468, July 24, 2008; Executive Order 13552, August 31, 2010; Executive Order 13593, December 13, 2011; Executive Order 13643, May 15, 2013

See Related:

• None Available