UCMJ Article 117a Criminalizes “Revenge Porn”

Article 117a, UCMJ, colloquially referred to as the UCMJ’s “revenge porn” article, criminalizes the wrongful broadcast or distribution of intimate visual images. Article 117a was codified in response to the 2017 “Marines United” scandal in which nude images of female servicemembers and civilians were posted on Facebook by military members.

Elements

To be punishable under Article 117a, UCMJ, the Government must prove that:

1. The accused knowingly and wrongfully broadcast or distributed an intimate visual image of another person or a visual image of sexually explicit conduct involving another;
2. The accused knew or reasonably should have known that the intimate visual image was made under circumstances in which the person depicted in the intimate visual image retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image;
3. The accused knew or reasonably should have known that the broadcast or distribution of the intimate visual image was likely—(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image; or (B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and

1. The accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

The Government must also show that the intimate visual image or visual image of sexually explicit conduct involved a person who—(A) was at least 18 years of age at the time the intimate visual image was created; (B) is identifiable from the image itself or from information displayed in connection with the image; and (C) did not explicitly consent to the broadcast or distribution of the intimate visual image.

Definitions

Article 117a defines an “intimate visual image” as a “visual image that depicts the private area of person.” The term “private area” means the “naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.” Article 117a broadly defines “sexually explicit conduct” to include “actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.”

Defenses

There are many potential defenses to an Article 117a allegation. Article 117a is a specific intent crime which requires proof that the accused “knowingly and wrongfully broadcast or distributed” the image. Evidence of any degree of voluntary intoxication, whether by drugs or alcohol, may be admissible for the purpose of raising a reasonable doubt as to the existence of actual knowledge and specific intent.  Additionally, the Government cannot prevail on a charge under Article 117a if the person depicted in the image is not identifiable, explicitly consented to the broadcast or distribution of the image, or if the accused did not know or reasonably should have known that the person depicted in the image had a reasonable expectation of privacy regarding any broadcast or distribution of the image. The statute defines a “reasonable expectation of privacy” as “circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.”  An Article 117a charge also be defeated if there is no proof that the conduct had a reasonably direct and palpable connection to the military mission or military environment. In other words, there must be a military nexus to the offense.

Maximum Punishment

Article 117a does not expressly include a maximum punishment but simply sates that those found guilty of the offense “shall be punished as a court-martial may direct.”

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