Thursday, September 25, 2008

Joint Service Committee proposes creating new enumerated Article 134 child pornography offense [CORRECTED]

The Joint Service Committee has published its proposed changes to the Manual for Courts-Martial, which include the creation of a new enumerated Article 134 offense of "Child pornography." Here's a link to the full proposal.

Here are the proposed maximum sentences:

(1) Possessing, receiving, or viewing child pornography. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Producing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

Among other provisions, the proposal also suggests MCM changes to facilitate the trial of civilians accompanying the military in the field.

Written comments must be received no later than 18 November 2008. The Joint Service Committee will hold a public meeting on the proposal on 30 October 2008 in Rosslyn.


Anonymous said...

Why? The diddlers get punished as is...what's the point of all this other than more back-patting self justification for folks suckling at the government's teet?

Cloudesley Shovell said...
This comment has been removed by the author.
Cloudesley Shovell said...

CAAFlog--the proposed changes don't appear to have anything to do with facilitating trial of civilians in the field. Rather, the changes are pretty narrowly limited to how fines are calculated against civilians, and amends the discussion regarding fines to state that fines are appropriate against civilians even where no unjust enrichment exists.

To quote the proposed change: "In the case of a person serving with or accompanying an armed force in
the field, a summary court-martial may not adjudge a fine in excess of two-thirds of one month of the highest rate of enlisted pay, and a special courtmartial may not adjudge a fine in excess of two-thirds of one year of the highest rate of officer pay."

This means a civilian tried at a SpCM could be fined a maximum of $114,799.20, which is one year worth of two-thirds of the highest rate of officer pay ($14,349.90 per month according to DFAS).

Punishments for civilians at summaries are not limited. So, a GS-15 civilian gov't employee could be tried at a summary (even though she's equivalent to an officer rank), and actually be punished more severely than an E-5 could be. Likewise, some poor GS-5 could be tried at a SpCM and be fined several years worth of pay.

These changes don't even attempt to define "serving with" or "accompanying" to clarify which civilians, exactly, are subject to Art. 2(a)(10) jurisdiction. Overall, a very sloppy job that leaves completely unsettled important questions of jurisdiction over civilians, while exposing civilians to harsher punishments than servicemembers for the same offense, and failing to adequately define a civilian's appellate rights, given that the punitive discharge ticket to appellate review is unavailable to civilians.

Cloudesley Shovell said...

The proposed child porn offense has this definition: " 'Child Pornography' means any visual depiction of a minor, or what appears to be a minor, engaging in sexually explicit conduct."

It also prohibits certain defenses: "It is not a defense to any offense under this paragraph that the minor depicted was not an actual person or did not actually exist."

This proposed language seems to parrot that in 18 USC 2256(8)(b) that was found unconstitutional in Ashcroft v. Free Speech Coalition, 535 US 234 (2002). The military might be a little better off following the language in 18 USC 1466A instead, which hasn't been found unconstitutional, and is a good deal more specific. That statute specifically includes language outlawing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" that meets the child pornography definition, and includes a specific exception for depictions that contain "serious literary, artistic, political, or scientific value" thus guarding against First Amendment issues.

The failure of the proposed Art. 134 offense to specifically create exceptions for First Amendment issues probably renders it unconstitutionally overbroad. One wonders if the service JAGs plan on sending representatives to the public meeting on 30 October to address these issues so as to forestall a big appellate litigation mess a couple years down the road, or if they'll just wing it with poorly-drafted MCM provisions.

Anonymous said...

I agree - the system is already experiencing a bit of turmoil given a poorly written Article 120, another ambiguous and potentially unconstitutional article will only add to the chaos.

I'm beginning to wonder if there is a wolf dressed in sheep's clothing on that committee...perhaps a member of the appellate bar?

Ama Goste said...

The JSC Meeting is on October 30, not 20.

Anonymous said...

Interesting that the proposed affirmitive defense does not mirror that of 18 USC 2252A(d).

Specifically, there is no cut off on amount (i.e. "less than three images")

Would the "promptly and in good faith" language then become the issue?

Anonymous said...

Proposed para 60b.c(10)(b) states that it is an affirmative defense to the charge that all the participants are at least 18 years old. Affirmative defenses are defenses in which the accused does not deny criminal responsibility for the act.

It is an an element of the offense that one of the participants is a minor, defined as under the age of 18. The U.S. has to prove such an element beyond a reasonable doubt. So how is the fact that all participants are at least 18 become an affirmative defense.

No Man said...


I don't know that the JSC can define "civilians" in such a way that would limit its application to only certain subsets of civilians. I think they are stuck with the interpretation of those phrases as they were in case law. The amendment didn't change those phrases, of, for that matter, the phrase "in the field." I think any attempt to bring greater definition might exceed the LSC and the President's authority; just as SecDef could only withhold commander's authority to exercise UCMJ jurisdiciton, not prohibit them from exercising it.

I would like to see some addition regulations in place to make the process more orderly. I'll post my JSC poroposal once I submit it.

Anonymous said...

Anyone have any background on the origins/intent of this provision --

(11) On motion of the government, in
any prosecution under this paragraph,
except for good cause shown, the name,
address, social security number, or other
nonphysical identifying information,
other than the age or approximate age,
of any minor who is depicted in any
child pornography or visual depiction
or copy thereof shall not be admissible
and may be redacted from any otherwise
admissible evidence, and the panel shall
be instructed, upon request of the
Government, that it can draw no
inference from the absence of such

Cloudesley Shovell said...

No Man--at least as far as the maximum punishment provisions go, the JSC can absolutely classify civilians as equivalent to a certain rank.

If they want the full powers of a summary to use against civilians, just state that for court-martial purposes, a civilian will be treated as an E-4, for example.

The proposed language creates more problems than it solves, because it treats a civilian as an E-9 (at least for fine purposes) at a summary, but as an O-10 at a special court, at least for fine purposes. If these matters are not clarified, a trial or appellate court may well treat the civilian as an O-10 at the court-martial for all purposes. I don't think that's what the JSC wants.

Is a civilian entitled to one-third civilians on his court? Is he entitled to one-third enlisted? If so, what rank? If he's limited to an all-officer panel, what is the minimum rank, if any?

Congress provided for jurisdiction over civilians. The president gets to make the procedural rules. The JSC ought to propose a comprehensive RCM change to fully accommodate courts-martial with civilian accuseds. Failure to do so just invites error, and practically begs CAAF to rule-make by case law. If the services and the President kept their house a little cleaner, perhaps CAAF would not be quite so eager to jump in where they are not wanted and exercise their supervisory powers over all things related to military justice. Clinton v. Goldsmith notwithstanding, CAAF has demonstrated that they will gladly re-assume that role if given the chance.

Anonymous said...

An enumerated child porn article is a bad idea. Just like the new (terrible) Article 120, this too will only serve to benefit sex offenders. Child porn cases abound in the miltiary appellate courts - just look at the oral argument schedule for the CAAF. Most of the cases are Child Porn related. Imagine what will happen when we actually have an enumerated child porn article. This new article might be a good eval bullet for somebody. However, just like with the new Article 120, it too will result in a benefit for the defense.

Leave good enough alone or, at the very least, create a mandatory minimum so that pedophile apologists can't protect sex offenders with a ridulous sentence.

Here is another idea - prosecute more of these cases in District Court. Unlike in the military courts, these pedophiles get what they are due in District Court.

No Man said...


I totally agree with your latest post. I just disagreed with the prior one, specificalyl where it said:

These changes don't even attempt to define "serving with" or "accompanying" to clarify which civilians, exactly, are subject to Art. 2(a)(10) jurisdiction. Overall, a very sloppy job that leaves completely unsettled important questions of jurisdiction over civilians

Good points on sentencing and something that will have to be remedied by someone else as my proposal won't even attempt to touch these issues---there is only so much one man can do. Maybe there can be a Cloudesley proposal. You should draft some of the crew of the HMS Association to . . . oh wait, your Navigator took care of that option.

Anonymous said...

The A.C.L.U. must be hopping mad about more child porn statutes.

Cloudesley Shovell said...

Well dang, No Man, I had a nice long comment all written up, and forgot to click "publish."

I am sure one of my honorary HMS Association crewmembers over there in the colonies will convey my thoughts to the Committee. I would attend personally, but am constrained to remain here at Westminster.