UCMJ Article 134: Child Pornography

The MCM specifies four separate classifications regarding Article 134 – child pornography.

Possessing, receiving, or viewing child pornography requires the following elements to be present:

1. the accused knowingly and wrongfully possessed, received, or viewed child pornography; and

2. that, under the circumstances, the conduct of the accused was either (i) to the prejudice of good order and discipline in the armed forces, (ii) was of a nature to bring discredit upon the armed forces, or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Possessing child pornography with intent to distribute requires the prosecution to demonstrate that:

1. the accused knowingly and wrongfully possessed child pornography;

2. the possession was with the intent to distribute and

3. under the circumstances, the conduct of the accused was either (i) to the prejudice of good order and discipline in the armed forces, (ii) was of a nature to bring discredit upon the armed forces, or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

In order to be prosecuted for distributing child pornography, the prosecution must effectively demonstrate that:

1. the accused knowingly and wrongfully distributed child pornography to another and

2. under the circumstances, the conduct of the accused was either (i) to the prejudice of good order and discipline in the armed forces, (ii) was of a nature to bring discredit upon the armed forces, or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Prosecution for producing child pornography requires the following elements to be present:

1. the accused knowingly and wrongfully produced child pornography and

2. that, under the circumstances, the conduct of the accused was either (i) to the prejudice of good order and discipline in the armed forces, minors (ii) was of nature to bring discredit upon the armed forces, or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Understanding Article 134 (Child Pornography) of the UCMJ

The Article 134 offense of child pornography is broader than the federal and state statutes referenced below and extends to visual depictions of what appear to be minors. That is, the images include sexually explicit images that may not involve minor but either resemble or are staged to appear so. Article 134—Child pornography is not intended to preempt prosecution of other federal and state law child pornography and obscenity offenses which may be amenable to courts-martial via Article 134 clauses 2 and 3.

Title 18, United States Code, criminalizes the production, distribution, possession with intent to distribute, possession, and receipt of sexually explicit images of actual children under the age of 18. Title 18 United States Code, Chapter 71, criminalizes the production of “obscene images,” that is, visual depictions of any kind, including a drawing, cartoon, sculpture, or painting. Such images are considered obscene under federal law when they depict minors involved in sexually explicit activity, and engaging in bestiality, sadistic or masochistic abuse. These federal obscenity offenses may likewise be prosecuted at courts-martial via Article 134.

If a service member violates an applicable state child pornography or obscenity statute within the jurisdiction of a given state, the substance of that state child pornography and obscenity law may be charged via Article 134 as conduct “of a nature to bring discredit upon the armed forces.” When so set, the Article 134 charge should recite every applicable element under the state statute. The maximum punishment for such offenses is the appropriate maximum punishment prescribed for such an offense under state law.

Child pornography refers to any material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.

The accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography if he was not aware that the images were of minors or what appeared to be minors engaged in sexually explicit conduct. Awareness may be inferred from circumstantial evidence, such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed.

Distributing is the delivering to the actual or constructive possession of another.  A minor is any person under 18 years of age.

Possessing means exercising control of something. Possession may be direct physical custody, like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. More than one person can possess an item simultaneously, as when several people share control over an item.

It is producing means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.

Sexually explicit conduct means actual or simulated:

1. sexual intercourse or sodomy, including genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex;

2. bestiality;

3. masturbation;

4. sadistic or masochistic abuse; or

5. lascivious exhibition of the genitals or pubic area of any person.

Visual depiction includes any developed or undeveloped photograph, picture, film, or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means, including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image.

Any facts or circumstances that show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not limited to, the method by which the visual depiction was developed, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement.

Maximum Possible Punishment for Violations of Article 134

Service members convicted of an Article 134 violation for Child Pornography face a variety of maximum possible punishments that are specified by the nature of the offense.

Possessing, receiving, or viewing child pornography carries a maximum possible punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for ten years.

The maximum possible punishment for possessing child pornography with intent to distribute is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

Service members convicted of distributing child pornography face the maximum possible punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

A conviction for producing child pornography carries a maximum possible punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

How do you defend against Article 134 Child Pornography charges?

When facing the combined resources of the military and the current cultural climate, you need to be prepared to defend your career and your freedom. Crisp and Associates, LLC has a team of experienced trial attorneys with over 75 years of combined experience who have won these types of cases. This team includes the firm’s founder, Jonathan Crisp, a highly respected and sought-after attorney, speaker, and lecturer who has served in the U.S. Army Judge Advocate General’s Corps (JAG) since 1998 and entered private practice in 2007.

If you, or someone you know, is facing Article 134 charges for Child Pornography, you need to speak with a Military defense attorney right away. We understand what is at risk and know how to protect your career, freedom, and future. Please call Crisp and Associates Military at 888-258-1653 for a free consultation.