The current version of Article 120 involves four separate statutes: Article 120 (adult sexual offenses), Article 120a (stalking), Article 120b (child sexual offenses), and Article 120c (other sexual misconduct). All except for Article 120a are relatively new; they were enacted as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here) (see also our Article 120 (2012) category) and they took effect on June 28, 2012.
Among other things, Article 120c prohibits “indecent viewing, visual recording, or broadcasting.” These three offenses involve knowingly and wrongfully viewing, recording, or broadcasting “the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c(a).
But the reach of Article 120c(a)(1) is now significantly limited by a published decision from a three-judge panel of the Navy-Marine Corps CCA in United States v. Quick, 74 M.J. 517, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014) (link to slip op.). Senior Judge Fischer writes for the panel, finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reverses the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification fails to state an offense.
The specification at issue alleged the following as a violation of Article 120c(a)(1):
In that [the appellant], while on active duty, did, at or near San Diego, California, on or about 1 July 2012, knowingly and wrongfully view a visual recording of the private area of Ms. [TR], without her consent and under the circumstances in which she had a reasonable expectation of privacy.
Slip op. at 3 n.3. The recording was made by a Marine Corporal (E-4) and it showed the appellant (a Marine Sergeant; an E-5) and another person simultaneously engaging in sexual acts with TR in the appellant’s barracks room (the appellant was acquitted of rape in connection with this sexual encounter). “During this sexual encounter, [the Corporal] used his smart phone to surreptitiously video record the three [participants] for a few seconds until [the woman] saw what he was doing. After the encounter, [the Corporal] showed the appellant the video recording and, at the appellant’s request [the Corporal] forwarded the video to the appellant.” Slip op. at 2-3.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiring to distribute an indecent visual recording, wrongfully viewing an indecent visual recording, and indecent conduct in violation of Articles 81, 120c, and 134. He was sentenced to confinement for six months, reduction to E-3, and a bad-conduct discharge
Reversing the wrongful viewing conviction, the CCA focuses on the fact that the appellant’s conviction was based on his viewing of a recording rather than of a real-life body part:
The indecent viewing specification at issue alleged that the appellant knowingly and wrongfully viewed “a visual recording of the private area of [the victim], without her consent and under the circumstances in which she had a reasonable expectation of privacy.” Additional Charge Sheet. Importantly, the specification did not allege that the appellant viewed the victim’s “private area.” Rather, it alleged that the appellant viewed “a visual recording of the [victim’s] private area.” (emphasis added). We find this distinction significant because viewing of the “private area” itself, not a visual recording, is the conduct proscribed by the plain language of the statute.
Slip op. at 4 (emphasis in original). The CCA finds the statute unambiguous in its requirement that an accused view the real-life private area of a person, and not merely a recording of the same. Moreover, CCA highlights that the statute addresses recordings separately:
Congress used clear and unambiguous language to expressly proscribe the making of and broadcasting of indecent visual recordings, as such recordings are expressly articulated in the second and third paragraphs of the statute. Consequently, the absence of any similarly clear proscription on the viewing of indecent visual recordings is significant.
Slip op. at 5. Additionally, the CCA notes just how broad a statute prohibiting the mere viewing of an indecent video would be:
Interpreting Article 120c to criminalize the mere viewing of a recording of indecent material would raise serious concerns about the statute’s constitutionality under the First Amendment’s overbreadth doctrine.
Slip op. at 6. Ultimately, the CCA finds “no legal support to apply the expansive reading to the plain language of Article 120c that the Government advocates for here.” Slip op. at 6. This is a major ruling that significantly (and rightly, I think) narrows the reach of Article 120c(a)(1).
But the CCA isn’t done with its consideration of Article 120c just yet. The opinion also addressed the appellant’s conviction for indecent conduct in violation of Article 134. However, the CCA affirms that conviction, rejecting a preemption challenge and an as-applied constitutional challenge.
For the preemption challenge, the CCA explains that:
The appellant argues that once Congress enacted Article 120c, indecent conduct was no longer an offense because it is not listed as a specific offense under the 2012 edition of the UCMJ and, thus, “Congress did not intend to criminalize private, consensual, group sex under the 2012 UCMJ.” Appellant’s Brief of 27 Jan 2014 at 58.
Slip op. at 8. The court rejects this argument with the following conclusion:
Because Article 120c was only “intended to criminalize non-consensual sexual misconduct that ordinarily subjects an accused to sex offender registration” and Congress did not enact an Article criminalizing indecent acts in the 2012 edition of the Manual, we find this offense properly charged under Article 134.
Slip op. at 8 (quoting Manual for Courts-Martial (2012 ed.), App. 23 at A23-16). The CCA’s quotation of the analysis section in the Manual for Courts-Martial is troubling, as the Manual clearly disclaims that analysis as nothing more than non-binding commentary. See Manual for Courts-Martial (2012 ed.), Part I, ¶ 4 (discussion). Moreover, I’m not sure how the Joint Service Committee determined that this was the intent of Congress in enacting Article 120c. I haven’t gone back to check all of the floor discussions about the FY12 NDAA, but I do know that the language creating Article 120c originated in the Senate, that the Senate Armed Services Committee sent the original bill to the full Senate without a written report, and that the final legislation was the product of a conference committee. So even if there was some floor discussion about Article 120c, I doubt that it’s definitive (or even particularly persuasive).
Notably, the Air Force CCA recently reached a different conclusion in the area of child sex offenses when it affirmed the dismissal of an Article 134 charge involving a sexual activity with a minor on preemption grounds, finding that “Congress intended for Article 120b, UCMJ, to be a comprehensive statute to address sexual misconduct with children.” United States v. Long, No. 2014-02, order at 6 (A.F. Ct. Crim. App. July 2, 2014) (discussed here).
For the as-applied constitutional challenge, the CCA finds that “the appellant’s argument that this was a wholly private exchange without aggravating factors is untenable.” Slip op. at 9. The court explains:
Assuming arguendo that we accept the appellant’s underlying premise that the sexual encounter between the appellant, TR, and JM was consensual, this was not a wholly private and discreet sexual liaison. Legally sufficient evidence was adduced at trial that this conduct was prejudicial to good order and discipline and service discrediting. The sexual activity took place in an unlocked barracks room and two other service members were present during at least a portion of the sexual encounter. Moreover, one of the room’s windows was left open throughout the encounter and Cpl H video recorded the conduct through the open window.
Slip op. at 9. The CCA also rejects the appellant’s argument that the military judge was required to instruct the members on the Marcum factors, based on the same facts. Slip op. at 10. See also United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page).
The NMCCA remands for a rehearing on the sentence.