Blogs from October, 2019

Article 117a, UCMJ, colloquially referred to as the UCMJ’s “revenge porn” article, criminalizes the wrongful broadcast or distribution of intimate visual images. Article 117a was codified in response to the 2017 “Marines United” scandal in which nude images of female servicemembers and civilians were posted on Facebook by military members.

Elements

To be punishable under Article 117a, UCMJ, the Government must prove that:

1. The accused knowingly and wrongfully broadcast or distributed an intimate visual image of another person or a visual image of sexually explicit conduct involving another;
2. The accused knew or reasonably should have known that the intimate visual image was made under circumstances in which the person depicted in the intimate visual image retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image;
3. The accused knew or reasonably should have known that the broadcast or distribution of the intimate visual image was likely—(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image; or (B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and
4. The accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

The Government must also show that the intimate visual image or visual image of sexually explicit conduct involved a person who—(A) was at least 18 years of age at the time the intimate visual image was created; (B) is identifiable from the image itself or from information displayed in connection with the image; and (C) did not explicitly consent to the broadcast or distribution of the intimate visual image.

Definitions

Article 117a defines an “intimate visual image” as a “visual image that depicts the private area of person.” The term “private area” means the “naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.” Article 117a broadly defines “sexually explicit conduct” 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.”

Defenses

There are many potential defenses to an Article 117a allegation. Article 117a is a specific intent crime which requires proof that the accused “knowingly and wrongfully broadcast or distributed” the image. Evidence of any degree of voluntary intoxication, whether by drugs or alcohol, may be admissible for the purpose of raising a reasonable doubt as to the existence of actual knowledge and specific intent.  Additionally, the Government cannot prevail on a charge under Article 117a if the person depicted in the image is not identifiable, explicitly consented to the broadcast or distribution of the image, or if the accused did not know or reasonably should have known that the person depicted in the image had a reasonable expectation of privacy regarding any broadcast or distribution of the image. The statute defines a “reasonable expectation of privacy” as “circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.”  An Article 117a charge also be defeated if there is no proof that the conduct had a reasonably direct and palpable connection to the military mission or military environment. In other words, there must be a military nexus to the offense.

Maximum Punishment

The maximum punishment for a violation of Article 117a is dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post UCMJ Article 117a Criminalizes “Revenge Porn” appeared first on Military Justice Attorneys.

Assault & Battery

Assault and battery are closely related, but they are not quite the same. The distinction is usually whether contact occurs. One can commit an assault without committing a battery; however, one cannot commit a battery without also committing an assault.

Article 128 of the UCMJ deals with assault and battery. For purposes of this post, only Assault and Aggravated Assault will be covered. The UCMJ provides the following elements for the offenses of Assault and Aggravated Assault:

Assault

• An attempt to do bodily harm to another person;
• An offer to do bodily harm to another person; or
• Actually doing bodily harm to another person.

Aggravated Assault

• An offer to do bodily harm with a dangerous weapon with the intent to do bodily harm; or
• Inflicting substantial bodily harm or grievous bodily harm on another person while committing an assault.

The UCMJ expands these elements to fit multiple types of offenses. These include simple assault; assault consummated by battery; assault upon a commissioned, warrant, noncommissioned, or petty officer; assault upon a sentinel or lookout in the execution of duty or upon a person executing law enforcement duties.

Assault Explained

Assault does not require a person to be physically harmed, even though there are many instances where an assault is committed which does cause physical harm. The military (and most civilian criminal courts) has a strong interest in preventing unlawful harmful conduct between people. In fact, American citizens have a constitutional right to personal liberty, which includes freedom from unlawful harmful conduct by others. Because the interest is so high, the UCMJ punishes conduct along the entire spectrum of assault. Since the root of an assault is in a threat of violence, Art. 128 prohibits even threats of bodily harm.

Typically, the punishment for assault increases with the level of danger of the conduct. This is why aggravated assault is set out in Art. 128 separately. Aggravated assault is just that; it specially includes conduct involving dangerous weapons or substantial bodily harm. Art. 128 defines a dangerous weapon as one which is used in a manner of inflicting death or grievous bodily harm.

Defenses

Defenses to an assault case depend on the individual circumstances. As with all cases, the elements of the crime must have been committed by the individual. However, since there are various types of the offense of assault, defenses to the elements will change depending on the type of assault alleged.

For instance, consider the intent elements of aggravated assault. Aggravated assault can come in two types: assault with a dangerous weapon or assault which inflicts substantial or grievous bodily injury. To be guilty of the former, the accused must have specifically intended to do bodily harm while using a dangerous weapon. But to be guilty of the latter, the accused only must have generally intended to assault another person; it does not require a specific intent to cause substantial bodily harm.

Maximum Punishment

Since Article 128 encompasses such a wide variety of conduct, the maximum punishment a person can receive depends on the specification of assault. Maximum punishment of some of the more frequently charged crimes are as follows:

• Simple assault: Confinement for 3 months and 2/3 pay forfeiture for three months
• Assault consummated by battery: Bad conduct discharge; forfeiture of all pay and allowances; confinement for 3 years.
• Assault upon a commissioned officer: Dishonorable discharge (DD); forfeiture of all pay and allowances; confinement for 3 years.
• Assault consummated by battery upon a child under 16, a spouse, an intimate partner, or an immediate family member: DD; forfeiture of all pay and allowances; confinement for 2 years.
• Agg. assault with a dangerous weapon: DD; forfeiture of all pay/allowances – total forfeitures; confinement of 3-8 years.
• Agg assault inflicting substantial bodily harm: DD; forfeiture of all pay/allowances; confinement of 3-8 years.
• Agg. assault inflicting grievous bodily harm: DD; forfeiture of all pay/allowances; confinement of 5-10 years.
• Agg. assault with intent to commit murder, rape, or rape of a child: DD; forfeiture of all pay/allowances; confinement of 20 years.
• Agg. assault with intent to commit voluntary manslaughter, robbery, arson, burglary, and kidnapping: DD; forfeiture of all pay/allowances; confinement of 10 years.

Protect Your Freedom and Your Military Future

When your life, career, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have decades of combined military justice experience and will zealously fight for you. We have defended servicemen and women facing investigations, trials, and discipline for the most serious offenses under the UCMJ, including assault, and will ensure that every avenue of defense is aggressively pursued on your behalf. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 128, UCMJ – Assault appeared first on Military Justice Attorneys.