In what is no doubt the latest reflection of the alarmingly high number of child pornography cases in the military justice system, CAAF yesterday granted review of this issue: “WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED.” United States v. Kuemmerle, __ M.J. ___, No. 08-0448/NA (C.A.A.F. July 15, 2008). CAAF ordered the parties to file briefs.

I can’t find NMCCA’s decision on the court’s web site or even on NKO. Does anyone have a copy of what the court did below?

4 Responses to “CAAF grants review of yet another child pornography case”

  1. Cloudesley Shovell says:

    Given the issue, it could also be viewed as yet another jurisdiction case where the underlying misconduct happens to involve porn.

  2. Anonymous says:

    Reading between the lines, it could also be the accused posted the image before entering on active-duty, but maintained it on the internet after entering active-duty. If that’s the case, maybe it’s not directly a jurisdiction question but a question as to the specific nature of the offense of distribution (i.e. whether distribution is an “instantaneous” or “continuing” offense).

  3. Anonymous says:

    Concur w/anonymous. These internet file sharing programs allow someone to put a file into a folder open to the public to download. Does it require an actual download to be distribution or is making it available for distribution sufficient (or is that attempted distribution)? In other words, whose conduct makes it criminal, the sender or the recipient (I vote for the former)? If the former, then posting it prior to entering active-duty, but continuing to keep it available later seems to be a continuing distribution.

  4. Anonymous says:

    I once had a client whose (purported) spurned gay lover “outed” him on the Internet by posting gay photos of him, against his will, without his consent. He was ADMIN SEPT anyway. I thought it was a travesty, smacked of a “witchhunt,” and broke the spirit of “don’t ask / don’t tell” policy. But the analogy to this issue is that the recipient’s reactions can determine (and retroactively backdate) the guilt of the principal.