CAAF grants review of issue challenging indecent online communications as the basis for convictions of conduct unbecoming
On Thursday CAAF granted review in this Air Force case:
No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.
Briefs will be filed under Rule 25.
The AFCCA’s opinion is available here and explains that the appellant – a Lieutenant Colonel – was convicted contrary to his pleas of not guilty of numerous specifications of conduct unbecoming an officer and a gentleman for engaging in indecent online conversations. “The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children.” Slip op. at 2. The appellant separately pleaded guilty in federal district court to wrongfully accessing child pornography.
The CCA concluded:
Here, Appellant chose to express his obscene “fantasies” via the medium of online chats and emails, and analogizes that activity to private conversations within his home which he asserts is protected free speech. Under Moore, such speech is not afforded constitutional protection.
The tension between Moore and Hartwig relied upon by Appellant has no bearing on the issue before us. Here, the court must determine whether Appellant’s online chats and emails were sufficient to constitute conduct unbecoming an officer. The content of Appellant’s online discussions were clearly indecent. The charged conduct need not actually damage the reputation of the military, instead it only has to have a tendency to do so. Although Appellant’s identity as a military member was revealed in the course of the criminal investigation, he did not have to outwardly identify himself as a member of the military for his actions to constitute conduct unbecoming an officer. Appellant’s conduct was disgraceful to himself and the reputation of the military.
Slip op. at 7 (internal citations omitted).