FORT GEORGE G. MEADE, Md. - The 2018 National Defense Authorization Act, which became law in December, provides the military justice system new tools to prosecute service members who maliciously distribute sexually explicit images of others.
The 2018 NDAA adds Article 117a to the Uniform Code of Military Justice. "The new article is titled "Wrongful broadcast or distribution of intimate visual images," said Lt. Col. Jay L. Thoman, a judge advocate and the chief of the Army's Criminal Law Policy Branch.
The "Marines United" scandal of 2017 was a driving force behind the addition of Article 117a to the UCMJ, Thoman said.
As part of that scandal, more than 30,000 active duty and retired armed forces members were initially accused of being involved in the distribution or viewing of private, intimate or sexually explicit imagery. A portion of the distributed material included images of female service members and military spouses.
"Posting compromising pictures of fellow service members not only works to undercut the trust within the unit but is completely counter to the values the services represent," Thoman said. "It has the potential to destroy unit cohesion, hurts the victim, and is destructive."
"With the implementation of Article 117a, there is now a clearer way to bring offenders to justice," Thoman said.
"It seems that Congress wanted to make sure that this type of behavior was unmistakably not acceptable. Criminalizing the conduct sent just that message," Thoman said.
With the passing of the 2018 NDAA, those who distribute the kinds of images that were part of the "Marines United" scandal are now on notice that they could be found "guilty of wrongful distribution of intimate visual images or visual images of sexually explicit conduct and shall be punished as a court-martial may direct."
Article 117a, now part of the UCMJ, goes to great lengths to clarify what constitutes wrongdoing, and defines specific terminology, Thoman said.
According to the article, the accused should know that the person depicted in the image retains a reasonable expectation of privacy.
In addition, the accused should know that the broadcast of imagery 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."
To provide even further clarity, lawmakers defined in detail the language used in the law.
The term "broadcast," for instance, means to "electronically transmit a visual image with the intent that it be viewed by a person or persons."
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 include "distribute," "intimate visual image," "reasonable expectation of privacy," and "visual image."
A necessary change
According to Thoman, there was a limit to the actions the U.S. military legal system could take against a service member prior to inclusion of Article 117a in the UCMJ.
"While it has been illegal to create an indecent photo of an unknowing subject, if they willingly participated, the legality of forwarding that picture to a third party was uncertain," he said.
An example of this most commonly occurs in a relationship turned bad. If two Soldiers are dating, Soldier A can legally take a graphic picture of themselves and then send it to Soldier B, in most situations.
"However, just because it is legal does not necessarily make it a good idea," he added.
Soldier B cherishes the picture and did not think of showing it to anyone else until the relationship sours and the two Soldiers breakup. Soldier B, still feeling angry about the breakup, forwards the picture to Soldier A's squad. While Soldier B is temporarily upbeat about thinking of such an easy way to get back at Soldier A, in all likelihood, Soldier B has just committed a federal crime, Thoman said.
According to Thoman, the legal analysis to get to a federal conviction is now more straightforward for that case.
The accused knowingly distributed an image of another person. The image depicted the private area of that person. The person was identifiable. The identified person did not give their consent. The accused knew the person depicted had a reasonable expectation of privacy and was caused emotional distress as a result of the distribution. Finally, under the circumstances, the accused's conduct had a reasonably direct and evident connection to a military environment.
In addition to the changes to the UCMJ, Sexual Harassment/Assault Response and Prevention program officials want to ensure that support is available to Soldiers impacted by the illegal broadcast of intimate or sexually explicit imagery.
Considered to be a form of sexual harassment, victims of the crime as spelled out in Article 117a who choose to receive services will receive support from a victim advocate who can provide crisis intervention. That intervention includes such things as referrals to behavioral health, chaplains, special victim witness liaisons, and the victim witness assistance program.
Additionally, Soldiers will have access to safety planning, accompaniment to interviews and appointments, and assistance with obtaining a military or civilian protective order, according to LeWonnie Belcher, SHARP program office branch chief for communications, outreach, and leadership engagement.
According to Thoman, the implementation of Article 117a fills a gap in military law. And while technology will continue to evolve, he said, the new law was written broadly enough to accommodate those changes.
"I think 'revenge porn,' as it is commonly called, is a growing issue across society," Thoman said. "Because of that, we see an increase in the frequency in the military as well. Ultimately, Article 117a could help prevent that divisiveness in the future that could disrupt a unit when something like this happens."