JSC to consider MCM amendments on 29 October
As announced in the Federal Register here, the Joint Services Committee will hold a public hearing on 29 October at 1030 to consider proposed amendments to the Manual for Courts-Martial. The hearing will be held in the 8th Floor Conference Room, 1501 Wilson Boulevard, Rosslyn, VA 22209-2460. Written comments may be submitted until 16 November. (Arrgggghhh! That link to a pdf version of the proposed amendments doesn’t seem to work, even though that is the link to the pdf version on the Federal Register’s web site. Try this link for an html version. If neither of those work, try this link and then navigate to the proposed MCM amendments. If that doesn’t work, try here and then type in 47785 in the field for volume 74 and then navigate to the proposed MCM amendments.)
The topics under consideration include the establishment of an enumerated child pornography offense under Article 134 and the creation of a joint criminal enterprise exception to the military’s marital communications privilege. The Article 134 child pornography offense would be punishable by up to 10 years’ confinement and a DD for knowingly viewing, possessing, or receiving child pornography. The sentence for distribution would include up to 20 years’ confinement and the sentence for production would include up to 30 years’ confinement. The proposed Manual provision includes this explanation: “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.”
h/t Court-Martial Trial Practice blog
So how does that square with Ashcroft?
It doesn’t and DOD doesn’t care.
Although 134 is the ubiquitous catchall, will it cover naked comic book kids? I hope Bart Simpson doesn’t get offered a Playgirl centerfold.
Anon 1:10,
I couldn’t link to the proposed amendments, so I haven’t seen the elements, but here’s my guess: if the offense doesn’t include an actual victim element it’s just a plain old obscenity statute, targeting a specific type of obscenity. It’s inaptly titled as prohibiting CP, but it’s not really replicating 2252A.
And, the military Exchanges will have to purge a lot of magazines and books off their shelves.
Got pretty far along in a CP case one time where we were intending offering magazines from the Exchange as defense exhibits. But then got a sweet deal for the CP for which there was NO defense.
Yes, Bart Simpson could end up being alongside the Japanese Anime cartoons.
Phil,
Are you still representing him on appeal? If so, please provide appellant’s name so we answer his frivolous improvident plea assignments of error.
r/
Code 46
So how old IS Judy Jetson? Wikipedia says she’s 16, but since she first appeared in 1962, that makes her 47. The “appears to be a minor” standard seems pretty arbitrary. What about the Hermione Granger face on an adult body – what makes the image “appear to be a minor?” The JSC is relying VERY heavily on the military discipline exception to get around Ashcroft.
MJW2,
The JSC will have to refine this further. As others have noted, the possibility exists which allows for criminalizing visual depictions of adults who may appear to be minors, when in fact, they are attempting to criminalize (rightly or wrongly) visual depictions which are of minors, but the Govt cannot definitively prove (through the database) are minors. I also think the JSC may intend to prohibit actual virtual child porn, when that virtual child porn, is so close to real child porn that the difference is negligible (if the technology actual exists). Of course that brings into play No Man’s issue regarding free speech, and it also brings into play whether the military can constitutionally apply rights differently to its members.
All good stuff, besides I just wanted to reply to a wonk. Was that you at Denedo?
MJW1
That would make Elroy at least 37.
And who the hell is Wolf?