Back in May of last year, we noted CAAF’s grants of review in United States v. Warner, No. 13-0435/AR, 73 M.J. 1 (link to slip op.) (CAAFlog case page), and United States v. McKim-Burwell, No. 13-0329/AR (post discussing grant), as cases that explored the boundaries of service discrediting conduct sufficient to constitute a violation of Article 134. Both cases involved Army prosecutions for so-called “child erotica,” which is a sexualized image of a child that doesn’t quite meet the definition of child pornography. Both cases also involved questions of whether the Government had adequately proven a terminal element under the test articulated in United States v. Wilcox, 66 M.J. 442 (2008) (link to slip op.) (requiring proof of a “direct and palpable effect on the military mission” when the conduct at issue is constitutionally protected).
But when CAAF resolved Warner in December, it determined that the appellant was not on notice that possession of images that depict minors “as sexual objects or in a sexually suggestive way” was punishable under Article 134, and the court dismissed the charge without ever reaching the sufficiency issue. Now CAAF resolves McKim-Burwell on the same grounds, summarily reversing and remanding to the CCA with a dissent from Chief Judge Baker (who, as I noted in my opinion analysis, dissented in Warner):
No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. On further consideration of the granted issues, 72 M.J. 389 (C.A.A.F. 2013) (order granting review), and in view of United States v. Warner, 73 M.J.1 (C.A.A.F. 2013), it is ordered that the judgment of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of the Charge and the sentence. The finding of guilty as to Specification 2 of the Charge is set aside and the specification is dismissed. The judgment as to the remaining findings is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to reassess the sentence.*
* BAKER, Chief Judge (dissenting):
I dissent from the dismissal of Specification 2 of the Charge. In my view, the charged conduct in this case is distinct from both the majority and dissenting positions in United States v. Warner, 73 M.J. 1 (C.A.A.F.2013), for two reasons. First, the Specification 2 images depict children as completely nude in contrast to Appellant’s brief which describes them as merely depicting “minors posing while wearing revealing clothes or while partially nude.” (Reply Brief at 6). Second, several of these images directly expose the genitalia and pubic region of the children. This is unlike Warner, where none of the images consisted of completely nude children with exposed genitalia. Thus, on the basis of these factors, I do not find Warner dispositive. Moreover, the majority has not explained why Appellant was not on notice that the possession of images of nude children, including some with their genitalia exposed, was subject to criminal sanction. See 73 M.J. at 4 (Baker, C.J., dissenting).