Maximum punishment

DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, commit indecent conduct, to wit: ______, and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).

Elements

(1) That (state the time and place alleged), the accused engaged in certain conduct, to wit: (state the conduct alleged);

(2) That the conduct was indecent; and

(3) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

Definitions & other instructions

“Indecent” means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)

(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.)

This provision is not intended to regulate wholly private consensual sexual activity. In the absence of an aggravating circumstance, private consensual sexual activity (including (sexual intercourse) (masturbation) and/or (sodomy)) is not punishable as indecent conduct. [The government has asserted the existence of the following aggravating circumstances to prove the alleged conduct is indecent: (here the military judge may list any relevant aggravating circumstances). In deciding whether these asserted aggravating circumstances exist, you should consider all the evidence on this matter, as you recall it.] [Consensual sexual activity that is “open and notorious” is not private. Sexual activity may be open and notorious when the accused knows that someone else is present. This presence of someone else may include a person who is present and witnesses the sexual activity or is present and aware of the sexual activity through senses other than vision. On the other hand, sexual activity that is not performed in the close proximity of someone else, and which passes unnoticed, may not be considered open and notorious. Sexual activity may also be considered open and notorious when the act occurs under circumstances in which there is a substantial risk that the act(s) could be witnessed by someone else, despite the fact that no such discovery occurred.]

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).

References

US v. Izquierdo, 51 MJ 421 (CAAF 1999) (Open and notorious as an aggravating circumstance making consensual activity punishable under Article 134); US v. Goings, 72 MJ 202 (2013) (Holding that “Lawrence” protections do not apply when the sexual activity is indecent because it is public rather than private conduct. One other person present at the consent of all three parties was determined to be public and, thus, not protected.) US v. Castellano, 72 MJ 217 (2013) (Whether “public” or “open and notorious” is a factual determination to be made by the trier of fact.)