sexual intercourse with an underage child, even if the child claimed to be 16. Included in the 1996
amendment was the defense of mistake of fact. It is a defense if: 1) the victim was at least 12 years old,
and, 2) the accused reasonably believed that the victim at the time of the offense had attained the age of
sixteen. The accused has the burden of proving this defense by a preponderance of the evidence.
C. Sodomy (Article 125, UCMJ). Sodomy is the engaging in unnatural carnal copulation either
with another person of the same or opposite sex or with an animal. It is considered unnatural carnal
copulation for a person to take into his or her mouth or anus the sexual organ of another person or of an
animal; or to place his or her sexual organ into the mouth or anus of another person or of an animal; or
to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to
have carnal copulation in any opening of the body of an animal. Part IV, MCM 1984, para 51(c). Note:
consent by the victim is not a defense regardless of the victim's age.
Depending upon the facts of the particular case at hand, two elements in aggravation may be
added to the requisite elements of the crime. One such element is added when the act is done with a
child under the age of 16 years, and the other element is added when the act is done by force and without
the consent of the other person.
It should be noted that the offense of sodomy may be committed between a husband and
wife. Such cases, however, would be difficult to prosecute. Coltner v. Henry, 394 F.2d 873 (7th Cir.
1968). In practical terms, it would be difficult to successfully argue that a governmental purpose for
prohibiting consensual sodomy within a marriage outweighs the constitutional right to marital privacy.
However, Congress has seen fit not to exempt consensual sodomy committed by husband and wife.
D. Indecent Assault (Article 134, UCMJ, para 63). The offense of indecent assault consists of
three basic elements:
1. That the accused assaulted a certain person not the spouse of the accused in a certain
manner;
2. That the acts were done with the intent of gratifying the lust or sexual desires of the
accused; and
3. 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.
Indecent assault is a nonconsensual offense.
QUESTION: DOES THE INITIAL ASSAULT ITSELF NEED TO BE INDECENT?
ANSWER: NO. THE REQUISITE ASSAULT OR BATTERY DOES NOT NEED TO BE
INHERENTLY INDECENT, LEWD, OR LASCIVIOUS (FOR EXAMPLE, CHOKING A VICTIM
AND PUSHING HER
MP1019
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