Maximum punishment

(1) To a child under 16: DD, TF, 2 years, E-1. (Category 2)

(2) Other cases: BCD, TF, 6 months, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (orally) (in writing) communicated to __________, (a child under the age of 16 years), certain indecent language, to wit: __________, and that such 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 (orally) (in writing) communicated to (state the name of the alleged victim) certain language, to wit: (state the language alleged);

(2) That the language 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); [and

(4) That (state the name of the alleged victim) was a child under the age of 16 years].

Definitions & other instructions

“Communicated to” means that the language was actually made known to the person to whom it was directed.

“Indecent language” is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts.

The language must violate community standards. “Community,” as used in this instruction, means the standards that are applicable to the military as a whole, and not the accused’s unit. (However, the standards used in the accused’s unit may be considered for the purpose of deciding whether, under the facts and circumstances presented, the accused’s conduct was prejudicial to good order and discipline.)

(“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.)

Not every use of language that is indecent constitutes an offense under the UCMJ. The government must prove beyond a reasonable doubt, by direct or circumstantial evidence, that the accused’s conduct was (prejudicial to good order and discipline in the armed forces) (or) (of a nature to bring discredit upon the armed forces).

(You should consider all the relevant facts and circumstances (to include (where the conduct occurred) (the nature of the relationship between the accused and (state the name of the alleged victim) (the effect, if any, upon the accused’s (or (state the name of the alleged victim or other individual alleged to have been affected) ability to perform military duties) (the effect the conduct may have had upon the morale or efficiency of the unit) (_________).)

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. Negron, 60 MJ 136 (CAAF 2004); US v. Brinson, 49 MJ 360 (CAAF 1998); US v. Hullett, 40 MJ 189 (CMA 1994); US v. French, 31 MJ 57 (CMA 1990).