PUBLICATIONS § 1. Generally Legality of regulation requiring military personnel to submit writings and public statements for review and clearance, see United States v. Voorhees, MIL PERS § 82.69. RAPE AND CARNAL KNOWLEDGE I. IN GENERAL. § 9. Included Offenses. III. PROSECUTION. A. IN GENERAL. § 38. Instructions to Court. B. EVIDENCE. 1. In General. § 49. Admissibility, Relevancy, and Competency. I. IN GENERAL § 9. Included Offenses § 9.11. Indecent liberties with child. Where the offense of taking indecent liberties is established primarily by the testimony that the accused placed his hands upon the complainant's private parts and the accused is separately charged with the offense of carnal knowledge, the offense is absorbed in and a component of the offense of carnal knowledge on the basis that the offense of taking indecent liberties is a lesser included offense of carnal knowledge. (Citing ACM 7576, Wilson, 14 CMR 557.) ACM 9243, Archuleta (1954) 17 CMR 772. III. PROSECUTION A. IN GENERAL § 38. Instructions to Court § 38.5. Assault with intent to rape. In instructing the court on the charge of assault with intent to commit rape, the law officer stated that "if there is, in fact, want of consent on the part of the female, the force necessary to attain penetration is sufficient." However, the court was told that before it could convict, it must find that the accused used unlawful force or violence upon the alleged victim and that in committing such acts he intended to rape the victim. He also defined rape. Held: The law officer's reference to forceable penetration was incomplete, inasmuch as he failed to differentiate between a situation in which the woman's will is overcome by fright, or where she is otherwise helpless, from one in which there is a mere lack of acquiescence by a woman, who is in a normal condition, awake, mentally competent. and not in fear (see Mills v. U. S., 164 US 644, 41 L ed 584, 17 S Ct 210). However, taking the instructions as a whole, and considering them in the light of all the evidence, and in view of the fact that the offense charged was assault with intent to commit rape, wherein actual penetration and the force required to accomplish it are not concerned, and the assault and the intent may unite to complete the offense before any attempt to effect penetration, it cannot be said that the accused was harmed by the incidental instruction relat ing to penetration. United States v. Short (No. 3586), 4 USCMA 437, 16 CMR 11. On a charge of assault with intent to commit rape, a requested instruction that "the essential elements of non-consent, or that the act be against the woman's will, signifies that it be committed against the utmost reluctance and resistance which the woman is capable of making at the time" was properly denied, inasmuch as it has no positive relation to the offense of assault with intent to rape (Myer v. People (1876), 8 Hun (NY) 528). A conviction for assault with intent to commit rape is proper, even though the woman actually consents to the final act. The offense is complete if there is an assault and "at any moment during the assault" the accused intends to have carnal knowledge of the victim against her will, and to use, for that purpose, whatever force may be required (People v. Meichtry, 37 Cal2d 385, 231 P2d 847, 849). The offense does not turn on exercise of utmost resistance by the woman, and it would be misleading to the court to inject that issue into the case (see State v. Stewart, 109 Cal App2d 334, 240 P2d 704). United States v. Short (No. 3586), 4 USCMA 437, 16 CMR 11. § 38.17. Defenses, generally. The accused, who was charged with assault with intent to commit rape, contended that he had "propositioned" the alleged victim and after some negotiation they agreed on a price of 500 yen. The accused requested an instruction that "in order to constitute an offense, the accused must think the victim is not consenting because he must intend not only to have carnal knowledge of the woman but to do so by force." Held: Denial of the requested instruction was not error inasmuch as the instruction was not legally correct. It failed to qualify the accused's belief that the alleged victim consented to his "proposition" by requiring that it be reasonable and honest (see 44 Am Jur, Rape, § 12, p 909; U. S. v. Perruccio (No. 3569), 4 USCMA 28, 15 CMR 28). Furthermore, the requested instruction also assumed too much, that is, when consent is in issue. whether or not it was gien is a question of fact for the court and not for the accused. Moreover, nothing in the request suggested a material issue that was not adequately covered in the general instruction. [Latimer, J., concurred in the result on the ground that the issue was adequately covered in other instructions.] [Brosman, J., dissenting, expressed the opinion that the evidence reasonably raised the possibility that the accused believed the alleged victim was acceding to his overtures, that regardless of whether the requested instruction was entirely accurate in phrasing, it was manifest that the law officer was put on notice to see that the court was instructed correctly on a mistake of fact, and that this issue was not covered in the instructions with the degree of explication to which the accused was entitled.] United States v. Short (No. 3586), 4 USCMA 437, 16 CMR 11. B. EVIDENCE 1. IN GENERAL § 49. Admissibility, Relevancy, and Competency § 49.5. Other offenses. Consideration of other act of intercourse arising out of same incident but not provable as an offense because prosecution had to elect which act was to be treated as the charge, see ACM 8408, Everett, CHG & SPEC § 27.25. In cases where the Board for Correction of Naval Records determines that the removal from one's record of all reference to a matter which constitutes a potential injustice is necessary to remove completely an injustice the board is authorized to take such action. Accordingly, proceedings of the Board for Correction of Naval Records may be approved where the board concluded that the issuance of a letter of reprimand to an officer was based on error, had worked to the officer's detriment, and was unwarranted and that the record of the officer should be corrected by removing therefrom the letter of reprimand as well as all other correspondence or material relating thereto. (Citing JAG:II:1:JRB:vdh of 9 Oct 1951; JAG:II:LRH:mto of 9 Jul 1954.) Op JAGN 1954/227. 29 July 1954. Correction of a "proficiency in rating mark" given member of Coast Guard upon termination of enlistment and transfer to Reserves, see Ops CCCG 1954/28, EM § 85.1. Legality of termination of temporary appointment of officer which has effect of reversing action taken pursuant to action by Army Board for Correction of Military Records, see JAGA 1955/1526, OFFICERS § 5.1. § 16.7. Records of court-martial proceedings. The court-martial of a man charged with murder was interrupted when he was hospitalized with a mental disorder. A board of medical survey submitted a report stating that he was in a state of remission from a schizophrenic disorder, that there was reasonable doubt as to his competency at the time of the offense, that he was unfit for service and it was recommended that he be sent to a Veteran's Administration hospital for the criminally insane. On reconsideration the board submitted an additional report wherein it stated that the schizophrenia existed prior to the man's enlistment, that due to the length of time between the offense and his hospitalization, any estimate of his condition at the time of the offense would be only a hypothesis, that he was a potential danger to society and that he was fit to stand trial. The trial was resumed and upon evidence by both sides as to his competency, the court found the man competent to stand trial. He was later found guilty of manslaughter and received a sentence which included a dishonorable discharge. After the conviction, the Judge Advocate General referred the case to the Bureau |