CORE CRIMINAL LAW SUBJECTS: Crimes: Article 117a - Wrongful Broadcast or Distribution of Intimate Visual Images

2021 (October Term)

United States v. Hiser, 82 M.J. 60 (Congress enacted Article 117a, UCMJ, in 2017 to address the wrongful broadcast or distribution of intimate visual images; this prolix provision is complicated; Article 117a(a), UCMJ, describes the prohibited offense in a single sentence of more than 300 words). 

(Article 117a(a)(1)(B), UCMJ, requires the victim of a wrongful broadcast to be identifiable from the visual image or from information displayed in connection with the visual image; in this case, based on the stipulation of fact and the providence inquiry, the military judge had a substantial basis in law and fact for concluding that the victim was identifiable where (1) the victim actually recognized herself when she saw the postings and videos, and (2) even putting the victim’s self-recognition aside, the victim was identifiable from a combination of the visual images in the videos and the information displayed in connection with the videos).  

(the text of Article 117a(a)(1)(B) requires that the person depicted in an image be “identifiable” without further qualification and provides no basis for requiring a person to be identifiable by somebody of the general public). 

(Article 117a(a)(4), UCMJ, requires that the accused’s conduct, under the circumstances, have a reasonably direct and palpable connection to a military environment; in ordinary language, the word “connection” means “a coming into or being put in contact; based on this ordinary meaning, a “connection” may be established if the broadcasted images actually do reach a servicemember—that is, a servicemember is “put in contact” with the images—regardless of whether the accused specifically directed the images at the military and regardless of how likely the images were to reach the military; in this case, the parties stipulated that the victim was a member of the military and that the images reached her; as such, the connection requirement was therefore met, and this connection could hardly have been more “direct and palpable” because appellant posted sexually explicit videos of the victim on a pornographic website, the victim soon thereafter found the videos on the same website, and the victim was likely to suffer emotional distress because of the broadcasting of the videos; under the plain language of Article 117a(a)(4), UCMJ, nothing more is needed to establish a direct and palpable connection to a military environment).   

(Article 117a(a)(1), UCMJ, unlike Article 134, UCMJ, does not include an element that the conduct be prejudicial to good order and discipline or that it discredit the military).

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