UCMJ Article 117a is the Wrongful Broadcast or Distribution of Intimate Visual Image. In the civilian world, this offense is commonly called revenge porn. A more accurate description is nonconsensual pornography. Congress decided to act against this type of offense in the 2018 NDAA which created Article 117a.

Prevalence of nonconsensual pornography

Cybersmile.org cites to statistics from a Match.com survey of 5000 adults conducted in 2012 that shows the prevalence of digital intimate imagery and its reach.

• 57% of men and 45% of women had received an explicit photograph from their partners.
• 38%of men and 35% of women sent their partners an explicit photograph of themselves.
• 94%of Americans believe that their intimate photographs are safe in the possession of their current partners.
• 10%of ex-partners have threatened to expose naked photographs of their ex-partners, and 60% of those who make such threats follow through.

Cybersmile.org reports that “in the U.K., the BBC reported that in England and Wales there had been 1,160 reported incidents of revenge porn from April 2015 to December 2015, with some victims reported being as young as 11 years old. However, 61% of reported offenses resulted in no action being taken against the alleged perpetrator.”

It is these types of statistics, along with examples like the Marines United scandal that prompted Congress to take action to protect service members from the wrongful broadcast or distribution of intimate visual images.

The elements of Article 117a

The elements of Article 117a include a few simple requirements: that the alleged victim is identifiable, that the accused knew they were wrongfully distributing the images, that the alleged victim didn’t consent to distribution, and that the accused conduct has a connection to a military mission or military environment.

(1)  That (time and place alleged), the accused knowingly and wrongfully (broadcast) (distributed) [(an) intimate visual image(s) of (name of the person depicted)] [(a) visual image(s) of sexually explicit conduct involving (name of the person depicted)];

(2) That (name of the person depicted) was at least 18 years of age when the visual image(s) (was) (were) created;

(3) That (name of the person depicted) is identifiable from the visual image(s) or from information displayed in connection with the visual image(s);

(4) That (name of the person depicted) did not explicitly consent to the (broadcast) (distribution) of the visual image(s);

(5)  That the accused knew or reasonably should have known that the visual image(s) (was) (were) made under circumstances in which (name of the person depicted) retained a reasonable expectation of privacy regarding any broadcast or distribution of the visual image(s);

(6) That the accused knew or reasonably should have known that the (broadcast) (distribution) of the visual image(s) was likely to cause harm, harassment, intimidation, emotional distress, or financial loss for (name of the person depicted), or to harm substantially (name of the person depicted) with respect to (his) (her) health, safety, business, calling, career, financial condition, reputation, or personal relationships; and

(7) That the accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.

Recently, in 2021, an appeals court in United States v. Hiser, 82 M.J. 60, affirmed these elements.

Military Policy regarding victims of Article 117a.

The Navy added Article 117a to its list of justifications to expedited transfer for alleged victims. MILPERSMAN 1300-1205 says Service members who are victims of certain offenses stipulated may request a temporary reassignment within or outside their unit or a permanent change of duty station prior to their normal projected rotation date.  The eligible offenses, including attempts to commit these offenses, consist of only those listed in this table.

According to NAVADMIN 119/17, the Navy says that personnel who wrongfully distribute or broadcast intimate images in violation of Article 1168 of U.S. Navy Regulations will face mandatory administrative separation processing.

Both the U.S. Air Force and the U.S. Army also have policies requiring mandatory separation processing of service members accused of sexual harassment or sexual assault (SHARP) offenses. Article 117a is considered a SHARP offense under this policy. Even with the separation policy, Article 117a is a serious enough offense, that accused service members also face the risk of court martial.

What to do if accused of Article 117a

Service members accused of Article 117a should not voluntarily give their phones to investigators. If called into an investigator’s office, suspects should not take their phones with them to any interviews and decline to open their phone should they have it with them. Investigators will attempt to use face ID to access the suspects devices should they gain control of a suspect’s phone. A suspect has a right to retain their phone and to decline to open it for investigators. Service members accused of Article 117a should also decline to answer questions whether it is from a supervisor, a commander, or a military investigator until consulting with an attorney.

If you are accused of violating UCMJ 117a or a SHARP offense, call us today at 757-504-2815 or contact us here.