EO 13447 Title 3--The President 3 of lack of mental responsibility by clear and convzncing evidence is upon the accused. When the issue of mistake of fact under R.C.M. 916(j) {2) or (3) {3) is raised, add: The accused has the burden of proving the defense of mistake of fact as to consent or age by a preponderance of the evidence.] ,' (e) R.C.M. 1004(c)(7)(B) is amended to read as follows: "(B) The murder was committed: while the accused was engaged in the commission or attempted commission of any robbery, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an aircraft or vessel; or while the accused was engaged in the commission or attempted commission of any offense involving the wrongful distribution, manufacture, or introduction or possession, with intent to distribute, of a controlled substance; or, while the accused was engaged in flight or attempted flight after the commission or attempted commission of any such offense." {f) R.C.M. 1004(c) (8) is amended to read as follows: "(8) That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the killing or was a principal whose participation in the burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson was major and who manifested a reckless indifference for human life." (g) R.C.M. 1102(b)(2) is amended to read as follows: "(2) Article 39(a) sessions. An Article 39(a) session under this rule may be called, upon motion of either party or 246
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