With the increase of social media, online dating apps, and legal pornography websites, service members are increasingly spending time on the internet. Many of these websites and apps pose significant dangers, however, as they walk a fine line between Constitutionally-protected depictions and illegal activity, and are actively trolled by law enforcement cyber teams.
MJA has defended service members across the service branches who are under investigation for allegations of internet sex crimes, including child pornography offenses. Contact one of our military defense lawyers today to learn more.
Article 134 (Child pornography)
Internet sex crimes, or child pornography, are aggressively prosecuted in the military. Article 134 prohibits the possession, receipt, viewing, distribution, or production of child pornography.
Notably, Article 134 states that is broader than its federal and state law counterparts in that it extends to visual depictions of what appear to be minors. In other words, sexually explicit images that do not actually involve minors, but either resemble or are staged to appear so, can still be prosecuted as child pornography.
There are numerous specific defenses which might apply in any given case to allegations involving child pornography. As a general matter, however, an accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography if he was not aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct.
Additionally, any evidence which shows that the child pornography was unintentionally or inadvertently acquired is relevant to whether the act was wrongful. This analysis includes, but not limited to, the method by which the image was acquired, the length of time the image was maintained, and whether the image was promptly, and in good
faith, destroyed or reported to law enforcement.
Relevant facts for potential defenses include:
The maximum punishments for offenses involving child pornography are severe, ranging from 10 year to 30 years in confinement per specification. All child pornography charges carry the potential for a dishonorable discharge, total forfeitures, and mandatory sex offender registration.
Know Your Rights
The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are three fundamental rights you can, and should, invoke:
Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstruction of justice. “Cooperating” with law enforcement won’t prevent the military from taking adverse action against you–it just makes the government’s case stronger.
Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.
Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. The decisions you make while under investigation will directly impact your likelihood for success at trial. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.
Contact MJA Today
If you or a service member you know has been accused of transferring or possessing child pornography, contact us immediately. At MJA, we have defended service members in all branches all across the world who are under investigation for allegations of child pornography. Over the past decade we have developed strong defenses to these allegations, and have won a notable number of acquittals and very favorable results for our clients. Contact our military defense lawyers now to learn more.