Maximum punishment

DD, TF, 30 years, E-1. A dishonorable discharge or a dismissal is a mandatory minimum sentence for this offense. (Category 4)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a sexual act upon __________, a child who had attained the age of 12 years but had not attained the age of 16 years, by [penetrating _________’s (vulva) (anus) (mouth) with __________'s penis] [causing contact between _________'s mouth and __________'s (penis) (vulva) (scrotum) (anus)] [penetrating ______'s (vulva) (penis) (anus) with ______'s body part) (an object) to wit: ________ with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of __________]] [intentionally touching, not through the clothing, the genitalia of ___________, with an intent to [(abuse) (humiliate) (harass) (degrade) _________] [(arouse) (gratify) the sexual desire of __________]].

Elements

(1) That (state the time and place alleged), the accused committed (a) sexual act(s) upon (state the name of the alleged victim), by (state the alleged sexual act); and

(2) That at the time of the sexual act (state the name of the alleged victim) had attained the age of 12 years, but had not attained the age of 16 years.

Definitions & other instructions

“Sexual act” means:

(A) the penetration, however slight, of the penis into the vulva or anus or mouth;

(B) contact between the mouth and the penis, vulva, scrotum, or anus;

(C) the penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred.

(The “vulva” is the external genital organs of the female, including the entrance of the vagina and the labia majora and labia minora. “Labia” is the Latin and medically correct term for “lips.”)

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age when the alleged sexual act(s) occurred.

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged sexual act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)

The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual assault of a child, the accused’s mistake was reasonable, the defense does not exist.

There is evidence in this case that indicates that, at the time of the alleged sexual assault of a child, the accused may have been under the influence of (alcohol) (drugs). The accused's state of voluntary intoxication, if any, at the time of the offense(s) is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual assault of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when they engaged in the sexual act(s). A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

(The defense of marriage does not exist where the accused commits the alleged sexual act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she/he is asleep, unconscious or otherwise unaware that the sexual act(s) (is) (are) occurring or when she/he is incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.)

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.

(Even if you are convinced by a preponderance of the evidence that at the time of the sexual act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the sexual act(s) occurring) (incapable of consenting to the sexual act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.)

Maximum punishment

(1) Cases involving sexual contact: DD, TF, 20 years, E-1. (Category 3)

(2) Other cases: DD, TF, 15 years, E-1. (Category 3)

Sample specification

Sexual Abuse of a Child Involving Sexual Contact:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, commit a lewd act upon __________, a child who had not attained the age of 16 years, by (touching) (causing ___________ to touch) the (vulva) (penis) (scrotum) (anus) (groin) (breast) (inner thigh) (buttocks) of ________, with [(_______'s body part) (an object) to wit: _______], with an intent to [(abuse) (humiliate) (harass) (degrade) ________] [(arouse) (gratify) the sexual desire of __________].

Sexual Abuse of a Child Involving Indecent Exposure:

In that _________ (personal jurisdiction data), did (at/on board—location), on or about ______, commit a lewd act upon _______, a child who had not attained the age of 16 years, by intentionally exposing [his (genitalia) (anus) (buttocks)] [her (genitalia) (anus) (buttocks) (areola) (nipple)] to __________, with an intent to [(abuse) (humiliate) (degrade) ______] [(arouse) (gratify) the sexual desire of __________].

Sexual Abuse of a Child Involving Indecent Communication:

In that ________ (personal jurisdiction data), did (at/on board—location), on or about _________, commit a lewd act upon __________, a child who had not attained the age of 16 years, by intentionally communicating to ________ indecent language to wit: ___________, with an intent to [(abuse) (humiliate) (degrade)_____] [(arouse) (gratify) the sexual desire of _________].

Sexual Abuse of a Child Involving Indecent Conduct:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about _________, commit a lewd act upon ________, a child who had not attained the age of 16 years, by engaging in indecent conduct, to wit: _______, intentionally done (with) (in the presence of) _______, which conduct amounted to a 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.

Elements

By Sexual Contact:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by (state the alleged sexual contact); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

By Indecent Exposure or Communication:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by intentionally (state the alleged exposure or communication); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

By Indecent Conduct:

(1) That (state the time and place alleged), the accused committed a lewd act upon (state the name of the alleged victim), by engaging in indecent conduct, to wit: (state the alleged indecent conduct); and

(2) That at the time of the lewd act (state the name of the alleged victim) had not attained the age of 16 years.

Definitions & other instructions

“Lewd act” means:

(A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a 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.

(“Sexual contact” means touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.)

“Child” means any person who has not attained the age of 16 years.

The prosecution is not required to prove the accused knew the age of (state the name of the alleged victim) at the time the alleged sexual act(s) occurred.

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___). Specifically, the mistake concerns the accused’s belief that (state the name of the alleged victim) was at least 16 years of age, when the alleged lewd act(s) occurred.

(First, if you find beyond a reasonable doubt that (state the name of the alleged victim) had not attained the age of 12 years, the defense of mistake of fact does not exist. The defense of mistake of fact can only be considered, as described below, if you find beyond a reasonable doubt that (state the name of the alleged victim) had attained the age of 12 but had not attained the age of 16.)

The prosecution is not required to prove the accused knew that (state the name of the alleged victim) had not attained the age of 16 years at the time the alleged lewd act(s) occurred. However, an honest and reasonable mistake of fact as to (state the name of the alleged victim)’s age is a defense to (that) (those) charged offense(s).

“Mistake of fact as to age” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct was at least 16 years old. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name of the alleged victim) was at least 16 years old. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)

The burden is on the defense to establish the accused was under this mistaken belief, by a preponderance of the evidence. A “preponderance” means more likely than not. If you are not convinced by a preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused was under a mistaken belief that (state the name of the alleged victim) was at least 16 years old, the defense does not exist. Even if you conclude the accused was under the honest and mistaken belief that (state the name of the alleged victim) was at least 16 years old, if you are not convinced by preponderance of the evidence that, at the time of the charged sexual abuse of a child, the accused’s mistake was reasonable, the defense does not exist.

There is evidence in this case that indicates that, at the time of the alleged sexual abuse of a child, the accused may have been under the influence of (alcohol) (drugs). The accused's state of voluntary intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that (state the name of the alleged victim) was at least 16 years of age must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

The evidence has raised the issue of marriage between the accused and (state the name of the alleged victim) concerning the offense(s) of sexual abuse of a child, as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).

It is a defense to (that) (those) charged offense(s) that the accused and (state the name of the alleged victim) were married to each other when the lewd act(s) occurred. A “marriage” is a relationship, recognized by the laws of a competent State or foreign jurisdiction, between the accused and (state the name of the alleged victim) as spouses. A marriage exists until it is dissolved in accordance with the laws of a competent State or foreign jurisdiction.

(The defense of marriage does not exist where the accused commits the alleged lewd act(s) upon (state the name of the alleged victim) when the accused knows or reasonably should know that she / he is asleep, unconscious or otherwise unaware that the lewd act(s) (is) (are) occurring or when she / he is incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance, and that condition was known or reasonably should have been known by the accused.)

The defense has the burden of proving by a preponderance of the evidence that the defense of marriage exists. The term “preponderance” means more likely than not. Therefore, unless you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, the defense of marriage does not exist.

(Even if you are convinced by a preponderance of the evidence that at the time of the lewd act(s) alleged, the accused and (state the name of the alleged victim) were married to each other, if you are not also convinced by a preponderance of the evidence that (state the name of the alleged victim) was not (asleep, unconscious or otherwise unaware of the lewd act(s) occurring) (incapable of consenting to the lewd act(s) due to impairment by any drug, intoxicant or other similar substance) or that the accused was not aware of and should not have been aware of such condition, the defense of marriage does not exist.)