The offense of Abusive Sexual Contact is such a common allegations under the Article 120 offenses that I thought I would literally include a page of the offense out of what is called the Military Judge's Benchbook.  In a court-martial, the Military Judge prepares instructions for the military panel to use as guidance and the law for determining whether or not the facts they heard as evidence during the trial establish Beyond a Reasonable Doubt whether or not the offense was committed.  The language out the Benchbook below is what the attorneys and the Military Judge use to determine how to write the instructions that end up going to the panel during their deliberations.

Understanding the legalese of panel instructions in a Special Court-Martial or General Court-Martial is not easy, and hiring an experienced Military Court-Martial Lawyer is a must.

3-45-6.  ABUSIVE SEXUAL CONTACT (ARTICLE 120)

NOTE 1: Applicability of this instruction. Use this instruction for offenses occurring on and after 1 October 2007 and before 28 June 2012 .

NOTE 1.1: Article 120 Affirmative Defenses. Whether instructing members or judge alone, if the MJ decides to deviate from the statutory Article 120(t)(16) burden-shift when applying an affirmative defense, the MJ should explain the reason(s) for doing so on the record (outside the presence of the members, if a members case). See US v. Medina, 69 MJ 462 (CAAF 2011). The following is a suggested explanation :

This court is aware of the Court of Appeals for the Armed Forces cases interpreting the statutory burden shift for Article 120, UCMJ, affirmative defenses. Although Article 120(t)(16) places an initial burden on the accused to raise these affirmative defenses, Congress also placed the ultimate burden on the Government to disprove them beyond a reasonable doubt. The CAAF has determined the Article 120(t)(16) burden shift to be a legal impossibility. Therefore, to constitutionally interpret Congressional intent while avoiding prejudicial error, and applying the rule of lenity, this court severs the language "The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden," in Article 120(t)(16) and will apply the burden of proof in accordance with the recommended instructions in the Military Judge's Benchbook, DA Pam 27-9 .

a. MAXIMUM PUNISHMENT:

(1) Abusive sexual contact: DD, TF, 7 years, E-1.

(2) Abusive sexual contact with a child: DD, TF, 15 years, E-1.

b. MODEL SPECIFICATION:

Abusive sexual contact:

In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, [(engage in sexual contact(s), to wit: __________, with __________) (cause __________ to engage in sexual contact(s), to wit: __________, with __________) (cause sexualcontact(s) with or by __________, to wit: __________)] by [causing bodily harm to (him/her) (__________), to wit: __________] [[(threatening) (placing him/her in fear of) ( state subject of threat or fear that amounts to a lesser degree of harm than that any person will be subjected to death, grievous bodily harm, or kidnapping)] [doing so when __________ was (substantially incapacitated) (substantially incapable of appraising the nature of the sexual act(s)) (substantially incapable of declining participation in the sexual act(s)) (substantially incapable of communicating unwillingness to engage in the sexual act(s))].

Abusive sexual contact with a child:

In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, (engage in sexual contact(s), to wit: __________, with __________) (cause __________ to engage in sexual contact(s), to wit: __________, with __________) (cause sexualcontact(s) with or by __________, to wit: __________), a child who had attained the age of 12 years, but had not attained the age of 16 years.

c. ELEMENTS:

Abusive sexual contact:

(1) That (state the time and place alleged), the accused

(a) engaged in sexual contact(s), to wit: (state the contact(s) alleged), with (state the name of the alleged victim);

(b) caused ( state the name of the alleged victim) to engage in sexual contact(s), to wit: (state the contact(s) alleged), with (state name of person alleged);

(c) caused sexual contact(s) with or by ( state the name of the alleged victim), to wit: (state the contact(s) alleged);

(2) That the accused did so

(a) by causing bodily harm to (state the name of the person alleged), to wit: (state the injuries allegedly inflicted).

(b) by threatening ( state the name of the alleged victim), to wit: (state subject of threat that amounts to a lesser degree of harm than that any person will be subjected to death, grievous bodily harm, or kidnapping).

(c) by placing (state the name of the person alleged) in fear of (state subject of fear that amounts to something other than that any person will be subjected to death, grievous bodily harm, or kidnapping).

(d) when ( state the name of the person alleged) was substantially [incapacitated] [(incapable of appraising the nature of) (incapable of declining participation in) (incapable of communicating unwillingness to engage in) the sexual contact(s)].

Abusive sexual contact with a child:

(1) That (state the time and place alleged), the accused

(a) engaged in sexual contact(s), to wit: (state the contact(s) alleged), with (state the name of the alleged victim);

(b) caused ( state the name of the alleged victim) to engage in sexual contact(s), to wit: (state the contact(s) alleged), with (state name of person alleged);

(c) caused sexual contact(s) with or by ( state the name of the alleged victim), to wit: (state the contact(s) alleged);

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

d. DEFINITIONS AND OTHER INSTRUCTIONS:

"Sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

("Substantially incapacitated") (and) ("Substantially incapable") mean(s) that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions.

NOTE 2: By causing bodily harm. When the sexual contact is alleged by causing bodily harm, include the following instruction :

"Bodily harm" means any offensive touching of another, however slight.

(The bodily harm which caused ( state the name of the alleged victim) to engage in the sexualcontact need not have been caused by the accused to ( state the name of the alleged victim). It is sufficient if the accused caused bodily harm to any person, which thereby caused ( state the name of the alleged victim) to engage in the sexual contact.)

NOTE 3: By threat. When the sexual contact is alleged by threat or by placing in fear, include the following instruction :

("Threatening") (or) ("Placing a person in fear") means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the alleged victim or another person being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping. Such lesser degree of harm includes (physical injury to another person or to another person's property) (a threat to accuse any person of a crime) (a threat to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule) (a threat through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person).

(The person subjected to harm need not be ( state the name of the alleged victim). It is sufficient if the accused threatened or placed ( state the name of the alleged victim) in fear that any person would be subjected to harm, which thereby caused ( state the name of the alleged victim) to engage in the sexual contact(s).)

NOTE 4: Marriage. Although not specifically identified by the National Defense Authorization Act for Fiscal Year 2006 and the implementing Executive Order as such, marriage is considered an affirmative defense to abusive sexual contact ( i.e., if the alleged victim was substantially incapacitated, substantially incapable of appraising the nature of the sexual act, substantially incapable of declining participation in the sexual act, or substantially incapable of communicating unwillingness to engage in the sexual act) and abusive sexual contact with a child. When identified as an affirmative defense, the National Defense Authorization Act for Fiscal year 2006 and the implementing Executive Order provide that the accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. Because this burden shifting provision appears illogical, it raises questions ascertaining Congressional intent. In an attempt to reconcile this apparent inconsistency, the Army Trial Judiciary is treating the former as a burden of production and the latter as a burden of persuasion and taking the approach that marriage is treated like many existing affirmative defenses; if raised by some evidence, the military judge must advise the members that the prosecution has the burden of proving beyond a reasonable doubt that marriage did not exist. When marriage between the accused and the alleged victim of the abusive sexualcontact(s) has been raised, include the following instruction :

The evidence has raised the issue of marriage between the accused and ( state the name of the alleged victim) concerning the offense(s) of abusive sexual contact(s) (with 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 sexual contact(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 prosecution has the burden of proving beyond a reasonable doubt that the marriage did not exist. Therefore, if you are convinced beyond a reasonable doubt that, at the time of the sexualcontact(s) alleged, the accused and (state the name of the alleged victim) were not married to each other, the defense of marriage does not exist.

(The defense of marriage also does not apply if the accused's intent at the time of the sexualcontact(s) was to abuse, humiliate, or degrade any person.)

NOTE 5: Mistake of fact as to age. Mistake of fact as to age is an affirmative defense to abusive sexual contact with a child that had attained the age of 12 years, but had not attained the age of 16 years. The National Defense Authorization Act for Fiscal Year 2006 and the implementing Executive Order provide that the accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. Because this burden shifting provision appears illogical, it raises questions ascertaining Congressional intent. In an attempt to reconcile this apparent inconsistency, the Army Trial Judiciary is treating the former as a burden of production and the latter as a burden of persuasion and taking the approach that mistake is treated like many existing affirmative defenses; if raised by some evidence, the military judge must advise the members that the prosecution has the burden of proving beyond a reasonable doubt that mistake did not exist. When mistake of fact as to age has been raised, include the following instruction :

The evidence has raised the issue of mistake on the part of the accused concerning the offense(s) of abusive sexual contact with 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 sexualcontact(s) occurred.

The prosecution is not required to prove the accused knew that ( state the name of the alleged victim) was under the age of 16 years at the time the alleged sexual contact(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, that 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 prosecution to establish the accused's guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged abusive sexual contact(s), the accused was not 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 convinced beyond a reasonable doubt that, at the time of the charged abusive sexual contact(s), the accused's mistake was unreasonable, the defense does not exist.

NOTE 5.2: Consent reasonably raised. Evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt. See US v. Neal, 68 MJ 289 (CAAF 2010). This instruction must be given even if the defense waives the instruction on consent as an affirmative defense .

The evidence has raised the issue of whether ( state the name of the alleged victim) consented to the sexual act(s) concerning the offense(s) of abusive sexual contact, as alleged in (The) Specification(s) (__________) of (The) (Additional) Charge (__________). Evidence of consent is relevant to whether the prosecution has proven the elements of the offense beyond a reasonable doubt.

NOTE 6: Consent reasonably raised. When a child is not the victim of the alleged rape, consent is an affirmative defense to rape. The National Defense Authorization Act for Fiscal Year 2006 and the implementing Executive Order provide that the accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. Because this burden shifting provision appears illogical, it raises questions ascertaining Congressional intent. In an attempt to reconcile this apparent inconsistency, the Army Trial Judiciary is treating the former as a burden of production and the latter as a burden of persuasion and taking the approach that consent is treated like many existing affirmative defenses; if raised by some evidence, the military judge must advise the members that the prosecution has the burden of proving beyond a reasonable doubt that consent did not exist. Because lack of consent is not an element, the prosecution need not otherwise prove lack of consent; however, evidence of consent is relevant on the elements of the offense. When consent has been raised, include the following instruction :

The evidence has raised the issue of whether ( state the name of the alleged victim) consented to the sexual contact(s) concerning the offense(s) of abusive sexual contact, as alleged in (The) Specification(s) (__________) of (The) (Additional) Charge (__________).

Consent is a defense to (that) (those) charged offense(s). "Consent" means words or overt acts indicating a freely given agreement to the sexual conduct by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. (A person cannot consent to sexual activity if that person is

(substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise)

(substantially incapable of appraising the nature of the sexual conduct at issue due to mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue)

(substantially incapable of physically declining participation in the sexual conduct at issue)

(substantially incapable of physically communicating unwillingness to engage in the sexualconduct at issue).)

The prosecution has the burden to prove beyond a reasonable doubt that consent did not exist. Therefore, to find the accused guilty of the offense(s) of abusive sexual contact, as alleged in (The) Specification(s) (__________) of (The) (Additional) Charge (__________), you must be convinced beyond a reasonable doubt that, at the time of the sexual contact(s) alleged, ( state the name of the alleged victim) did not consent.

NOTE 7: Mistake of fact as to consent. When a child is not the victim of the alleged abusive sexual contact, mistake of fact as to consent is an affirmative defense to abusive sexual contact (See NOTE 8 if a child is the victim of the alleged abusivesexual contact). The National Defense Authorization Act for Fiscal Year 2006 and the implementing Executive Order provide that the accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution has the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. Because this burden shifting provision appears illogical, it raises questions ascertaining Congressional intent. In an attempt to reconcile this apparent inconsistency, the Army Trial Judiciary is treating the former as a burden of production and the latter as a burden of persuasion and taking the approach that mistake is treated like many existing affirmative defenses; if raised by some evidence, the military judge must advise the members that the prosecution has the burden of proving beyond a reasonable doubt that mistake did not exist. When mistake of fact as to consent has been raised, include the following instruction :

The evidence has raised the issue of mistake on the part of the accused whether ( state the name of the alleged victim) consented to the sexual contact(s) concerning the offense(s) of abusive sexualcontact, as alleged in (The) Specification(s) (__________) of (The) (Additional) Charge (__________).

Mistake of fact as to consent is a defense to (that) (those) charged offense(s). "Mistake of fact as to consent" means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. 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, that would indicate to a reasonable person that the other person consented. (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 prosecution has the burden of proving beyond a reasonable doubt that the mistake of fact as to consent did not exist. If you are convinced beyond a reasonable doubt, at the time of the charged abusive sexual contact(s), the accused was not under a mistaken belief that the alleged victim consented to the sexual contact(s), the defense does not exist. Even if you conclude the accused was under a mistaken belief that the alleged victim consented to the sexual contact(s), if you are convinced beyond a reasonable doubt that at the time of the charged abusive sexualcontact(s), the accused's mistake was unreasonable, the defense does not exist.

NOTE 8: Consent of Child. If a child is the victim of the alleged abusive sexualcontact, use the following instruction and not the instruction in NOTE 6 or NOTE 7 :

Under the law, a person who has not attained the age of 16 years cannot consent to sexual activity.

Accordingly, if you are convinced beyond a reasonable doubt that ( state the name of the alleged victim) had not attained the age of 16 years at the time of the alleged offense(s), you are advised that the prosecution is not required to prove that the accused knew that ( state the name of the alleged victim) had not attained the age of 16 years at the time of the alleged offense(s), and it is not a defense to abusive sexual contact with a child even if the accused reasonably believed that ( state the name of the alleged victim) consented to the alleged sexual contact(s).

NOTE 9: Voluntary intoxication and mistake of fact as to age and consent. If there is evidence of the accused's voluntary intoxication, the following instruction is appropriate :

There is evidence in this case that indicates that, at the time of the alleged abusive sexual contact(with 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) (consented) (was at least 16 years of age at the time of the alleged offense(s)) 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.

NOTE 10: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), Instruction 6-5, Mental Responsibility, Instruction 5-17, Evidence Negating Mens Rea, Instruction 5-12, Voluntary Intoxication, as bearing on the issue of intent, if the intentional touching was with the intent (or was caused with the intent) to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person .