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The Military Justice Act of 2016 resulted in Article 120c Other Sexual Misconduct, in the 2019 Manual for Courts Martial. Article 120c, UCMJ Other Sexual Misconduct  includes Indecent Viewing, Visual Recording, or Broadcasting sexual or private area images of others without their consent. The military is increasingly charging military service members with this new article of the UCMJ after finding evidence on personal electronic devices like phones and computers. Since 2006, Congress and the President have made numerous changes to the law and procedure governing rape, sexual assault, and other sexual misconduct prosecutions in the military.  Service members may face an Article 120c other sexual misconduct charge if they are suspected of indecent viewing, recording or broadcasting others without their consent. These changes are intended to assist military prosecutors to obtain a higher rate of conviction.  What was once a straightforward area of military law is now extremely convoluted and complex.

The statute text and elements of Article 120c, other sexual misconduct, is listed below.  For more information on a particular sexual misconduct charge, consult with an experienced military lawyer – one who has successfully defended sexual misconduct charges under Article 120c.

Smart Phone and computer

Article 120c Other Sexual Misconduct includes the indecent viewing, recording or broadcasting of a person’s private parts without consent among other sexual misconduct elements.

Text of Article 120c Other sexual misconduct.

(a) Indecent Viewing, Visual Recording, or Broadcasting.—Any person subject to this chapter who, without legal justification or lawful authorization—

(1) knowingly and wrongfully views 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;

(2) knowingly photographs, videotapes, films, or records by any means 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; or

(3) knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);

is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering.—

Any person subject to this chapter who compels another person to engage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.

(c) Indecent Exposure.—

Any person subject to this chapter who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.

(d) Definitions.—
In this section:

(1) Act of prostitution.—

The term “act of prostitution” means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) on account of which anything of value is given to, or received by, any person.

(2) Private area.—

The term “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(3) Reasonable expectation of privacy.—The term “under circumstances in which that other person has a reasonable expectation of privacy” means—

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.

(4) Broadcast.—

The term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(5) Distribute.—

The term “distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means.

(6) Indecent manner.—

The term “indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case consult with an experienced military lawyer.

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