(a) Indecent Viewing, Visual Recording, or Broadcasting:
2020 (October Term)
United States v. Simpson, 81 M.J. 33 (Article 120c(a), UCMJ, prohibits any person subject to the UCMJ, without legal justification or lawful authorization, from knowingly distributing any recording of the private area of another person, without that other person’s consent and under circumstances in which the other person had a reasonable expectation of privacy).
(appellant could properly plead guilty to distributing an indecent visual recording under Article 120c(a)(3), UCMJ, as an aider and abettor of the person who distributed the recording to appellant; the distribution element of Article 120c(a)(3), UCMJ, is satisfied in this case because the person who distributed the recording delivered it to a person other than herself, namely, to appellant; even though another person effected the delivery, appellant can be guilty of this offense as a principal if he aided and abetted that other person; a principal under an aiding and abetting theory is independently guilty of an offense even though he or she is not the actual perpetrator and did not personally commit all of the acts necessary for the offense; in this case, appellant was guilty as a principal under this rule where appellant counseled and encouraged the other person to distribute the recording and where the other person would not have distributed the recording to appellant without appellant’s counseling and encouragement).
(the mere receipt and possession of an indecent recording does not violate Article 120c(a)(3), UCMJ, because Congress did not address receipt and possession in that provision; but a person who aids and abets the distribution of an indecent recording can be liable as an aider and abettor if he sufficiently associates himself with the purpose of the actual distributor; and in this case, where appellant counseled and encouraged the actual distributor to distribute the recording, and the actual distributer would not have distributed the recording without appellant’s counseling and encouragement, appellant not only associated himself with the actual distributer’s purpose, but also shaped her purpose; accordingly, the military judge had a substantial basis in law and fact for accepting appellant’s guilty plea to aiding and abetting the distribution of an indecent recording).
2018 (October Term)
United States v. Nicola, 78 M.J. 223 (the offense of indecent viewing has three elements: (1) that the accused knowingly and wrongfully viewed the private area of another person; (2) that said viewing was without the other person’s consent; and (3) that said viewing took place under circumstances in which the other person had a reasonable expectation of privacy).
(evidence in this case that appellant indecently viewed the victim in her barracks room after he removed her clothes was legally sufficient to support the conviction for indecent viewing where (1) the victim was clothed when she entered the barracks room with appellant and another soldier, (2) the other soldier left, and the only two left in the room were appellant and the victim, (3) the victim was later found naked in the shower, and (4) because the victim was very intoxicated and had difficulty with simple actions such as walking and talking, if appellant was untruthful in saying that the victim disrobed herself, the court-martial rationally could have inferred that appellant disrobed her).
(evidence in this case that appellant indecently viewed the victim’s private areas without her consent while she was in the shower was legally sufficient to support the conviction for indecent viewing where (1) the victim testified that appellant had entered the shower when she was sitting naked with her private areas exposed, and (2) appellant testified that the bathroom door was closed, the victim was behind a shower curtain, and she did not invite him to enter; although a viewing done for the purpose of checking on someone’s health and well-being would not necessarily be wrongful, in this case, the court-martial could have disbelieved appellant when he testified that his motivation for entering the shower was merely to check on the victim’s condition, and the panel could have inferred instead that appellant had a wrongful motive).
2012 (September Term)