Bottom line is that Congress can regulate/ban distribution of obsecene material for the US as a whole, not just the military. The thing Congress can’t do under Stanley is ban possession of obscene material.

Thus, in the end, I think Mason and Irvin are largely irrelevant as their facts don’t address this issue because (a) Irvin questioned the providence of a plea and not the consittutionality of an offense, and for that matter, the accused admitted the images were actual children and used itnerstate commerce to download them and (b) Mason was again a providence inquiry and involved downloading images the accused admitted were CP and were downloaded on his government computer.

I once had a “viewing” case as appellate defense counsel similar to the one you described. The appellant pleaded guilty to a novel clause 1 offense. He stipulated and testified that when he was on duty, some other guy comes in with a laptop and brings up a succession of CP images while the appellant and a few other guys look on, and the appellant doesn’t do anything to stop the conduct.

I argued that the mj failed to elicit facts sufficient to support the clause 1 element because the appellant’s conduct was merely passive, and without something in the record suggesting he actively participated, the only thing the evidence showed was that he witnessed some other guy commit a crime. The CGCCA panel ruled against me in a 2-1 decision.

Parenthetically, there were other CP offenses unrelated to the “viewing” offense on the charge sheet…

I was the same Anon in both posts, I just think there is a lot of problematic and fertile ground for appellate defense and trial defense counsel in this proposed law.

If you read the cites Ama Goste posted you’ll see that CAAF has already made the distinction. As for the viewing issue you are talking about, yes, that is problematic. My comment regarding getting something overturned was based on the “appears to be a child” language, not the hypothetical you raised where Snuffy is shown CP and the perp later tells CID that he watched it too.

I have no doubt some SJA and TC would try to charge that. I’ve met enough that have a God complex who would (probably to leverage an OTH in lieu). I think that that scenario is one that TDC should absolutely be raising all issues possible.

Finally, Anon 1214 makes good points that I don’t need to expand on.

CID, being the ahem blunt instrument that they are, won’t try and discern that maybe those images were part of a legit adult porn search and some TCs, particularly new ones will be too trusting of CID or their experts (and the last child porn case I defended against (full acquittal by the way) I knew more about computers than the expert did.)

This idea that who cares children are being hurt and there probably aren’t any virtual child porn images out there nor are any folks being charged with child porn by accident or misidentification (hello, Tanner Scale) ignores that the latter isn’t true at all, and the former is only a matter of time with increasing technology AND that the statute as written could as easily cover cartoon images as real live children.

Is the new buzzword going to be, but what about the cartoons?!

Second, viewing is very problematic. A fellow Soldier says hey Snuffy, come look at this, turns out that Soldier is an idiot showing you porn (or for a more realistic situation, you are borrowing his computer and you view the porn) and say you turn away disgusted but don’t report him. The command is mad at you when it comes to light later and charge you too.

That’s a situation that certainly wouldn’t even make it past the Service Courts, and I have very little faith in ACCA.

I agree that the Service Courts could very well attempt to try and find a work-around for Ashcroft based on military necessity or some expansion of the General Article but I still think CAAF would not blatantly ignore Ashcroft.

Thanks for the cites. I knew the issue had to have been dealt with before, just couldn’t remember the cite and was too lazy to look. As to the question about viewing, there are safe harbor provisions within the law that allow for someone who accidentally views CP to delete it immediately and report to LE.

For TDC out there, relying on a constitutionality argument is no doubt a loser at trial, and all the way up to CAAF. Good luck getting cert with the Supremes. I would wager that the first real test of this law won’t come until there is a prosecution based on what is no kidding virtual porn, and not “it could be.” I haven’t seen one of those yet, but if someone has I’d love to hear about it.

I also have problems with the idea that it’s OK to have sex with a 16 year old, but can’t have a nude picture of that same person?

I don’t see how viewing is going to pass constitutional muster. What if someone accidentally finds CP on another person’s computer? They had to “view” it in order to report it as CP–have they now committed a crime? How long does one have to view it? 1 second, a minute? What if a virus puts it on a computer, so no matter how much a person tries to delete it, it keeps popping up?

Sometimes good intentions and motives can make bad law.

I am ever more certain that there are pre-cogs hidden in the Capitol basement somewhere!

I don’t foresee even CAAF overturning this. I think it would take a cert grant to get any real traction.

What will they think of next?

Falcon

(6) “Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession
inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.

(7) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.