(dissenting):
19. This is a guilty-plea case where the accused admitted his acts were indecent and constituted conduct prejudicial to good order and discipline under the circumstances of this case. He admitted his act of inserting his finger in the girl’s vagina occurred while he was committing oral sodomy on her. He further admitted that the girl involved was 13, although she held herself out as 16. Finally, he acknowledged that he was 22 years old and married to another woman at that time. Under our precedents, this conduct would have been indecent even if the girl was 16 as the accused believed. See United States v. Stocks, 35 MJ 366 (CMA 1992). I would reverse the contrary legal holding of the Court of Military Review and conclude that no substantial conflict was raised with respect to these guilty pleas. See generally United States v. Prater, 32 MJ 433 (CMA 1991).
20. The majority holds for the first time in a guilty-plea case that a mistake of fact as to the age of the victim is a “defense” to a charge of committing indecent acts with a minor. It limits this defense to cases where the alleged indecent act would be otherwise lawful if engaged in by consenting adults. ¶ 17. It then proceeds to invalidate the accused’s guilty pleas because the only theory of indecency pleaded in his case was the minor age of the victim. I disagree with this judicial legislation and its establishment of a new rule for pleading the commission of indecent acts with a child. Moreover, even accepting this defense as established by the majority, it would be inapplicable in this case because his acts were indecent under our case law even if the girl involved was over 16.
21. Turning first to the new pleading rule, I note that the specification challenged in this case states:
specification: In that [the accused] did, at or near Shreveport, Louisiana, on or about 15 September 1991, commit an indecent act upon the body of [the victim], a female under 16 years of age, not the wife of the said [accused], by placing his finger in her vagina, with intent to gratify the sexual desires of the said [accused].
22. The majority opines that this offense as pleaded limits consideration of the inde*34cency of appellant’s act to the age of the victim. This conclusion I must reject for several reasons: First, to allege an indecent act with a child warranting increased punishments it was necessary to allege the age of the victim as being under 16. See para. 87b(1)(b) and (e), Part IV, Manual for Courts-Martial, United States, 1984. Second, an allegation that the charged acts were indecent has long been recognized as sufficient to allege this offense leaving to proof the particulars of the indecency. United States v. French, 31 MJ 57, 60 (CMA 1990); United States v. Tindoll, 16 USCMA 194, 36 CMR 350 (1966); United States v. Holland, 12 USCMA 444, 31 CMR 30 (1961); see generally United States v. Davis, 26 MJ 445 (CMA 1988). The majority’s pleading approach to this case is unwarranted.
23. It is also surprising to me that the majority for the first time would establish a new “defense” (mistake of fact as to the age of the victim to a charge of committing indecent acts with a minor) in a guilty-plea case. In this regard, I note that Judge Cox has “often expressed [his] reservations about making substantive law on a guilty-plea record.” United States v. Byrd, 24 MJ 286, 293 (CMA 1987) (concurring in the result); e.g., United States v. Harrison, 26 MJ 474 (CMA 1988). In addition, the majority invalidates appellant’s guilty pleas on the basis of a mere possibility that such a defense exists to an offense as charged. Contra United States v. Clark, 28 MJ 401, 407 (CMA 1989)(“‘the [mere] tactical possibility of raising a defense’ does not of itself warrant rejection of an otherwise provident plea.”). Finally, it applies the defense in this case where his admissions clearly establish the unlawfulness of his conduct even if the victim was 16 as he purportedly believed. See RCM 916(j), Manual, supra. This clearly was not an act which was otherwise lawful if committed by consenting adults. See United States v. Strode, 39 MJ 508 (AFCMR 1993); see also para. 62(d), Part IV, Manual, supra (recognizing attempted adultery as an offense.)