In 2017, Congress added a new offense to the UCMJ as part of the 2018 National Defense Authorization Act (NDAA) that targets the practice known as “Revenge Porn.” This statute is one of several introduced in recent years that brings criminal penalties to those who share or post sexually explicit images of others without their consent.
The military in particular has been under pressure to create an offense like this one after the heavy media converge of the “Marines United” scandal in 2017. In that scandal, which revealed a massive online collection of reposted sexually explicit images of individuals, is was believed that up to 30,000 active duty and retired armed forces members were involved in the distribution or viewing of private, intimate or sexually explicit imagery. The site included images of female service members and military spouses.
Article 117a of the Uniform Code of Military Justice criminalizes the “wrongful distribution of intimate visual images or visual images of sexually explicit conduct.” So, what does that mean exactly?
The Manual for Courts-Martial entry for this new law defines what constitutes this offense through specific terminology. The term “broadcast,” means to “electronically transmit a visual image with the intent that it be viewed by a person or persons.” The broadcast of imagery has to be for a “wrongful” purpose, meaning it was likely to cause “harm, harassment, intimidation, emotional distress, or financial loss to the person depicted in the image, or harms substantially the depicted person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships.” The term “sexually explicit conduct” is defined to include “actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.” Other terms defined by the new law include: “intimate visual image,” “reasonable expectation of privacy,” and “visual image.”
This new law is different from other sexual offenses prohibited by UCMJ Articles 120 and 120c. That law targets those who film others without their consent and/or shares such unauthorized content. The difference between Article 120c and Article 117a is best understood like this: If a sexual selfie taken by a person and sent to another, that act cannot be prosecuted under Article 120c because the person talking the selfie gave up the right to his/her privacy by sending the images out. That action could be prosecuted under Article 117a however, because the new law doesn’t care about whether or not the image was created or initially shared by consent. Instead, Article 117a focuses on what ultimately happens with the image and the impact it has on the original subject.
This statute should be on the radar of any young service member who has ever posted a sexually explicit image. By the numbers, that means a lot of service members. Recent studies show this it is extremely common for individuals who grew up with access to digital devices to ask for, receive, and share sexually explicit images of significant others or sexual partners. There is an alarming lack of awareness among many young service members that their own actions may be criminal. Consequences for violating Article 117a can be severe. A court martial can result in a punitive discharge, jail, time, and loss of pay and benefits. Even if it is not formally prosecuted at a trial, a violation of Article 117a by posting “revenge porn“ can lead to the loss of rank or pay and other serious consequences, including the end of a career.
For that reason, if you believe that you are under investigation or otherwise are exposed to legal risk due to content that shared or posted electronically, we strongly encourage you to schedule a confidential legal consultation with a qualified attorney with military expertise to protect your rights and interests
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