CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134: Indecent Conduct

2022 (October Term)

United States v. Kim, 83 M.J. 235 (conduct that is constitutionally protected for civilians could still qualify as prejudicing good order and discipline or bringing discredit upon the military; however, images viewed for sexual gratification do not necessarily lose their First Amendment protection).

(in this case, where appellant was charged with indecent conduct by searching the internet for pornographic videos using the search terms “rape sleep” and “drugged sleep,” such a charge implicated the First Amendment right to be free from unwanted government intrusion into one’s privacy).

(in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident).

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