Can the Marines who shared photos on Facebook be prosecuted under the UCMJ?

About the author:  Attorney Patrick Korody is a former Navy judge advocate who specialized in Military Justice Litigation.  He is co-author of the book, Court-Martial Advocacy – Trying the Military Case, published by Thomson Reuters.  His law firm, Korody Law PA, handles military law matters worldwide.

I’ve been involved in some high-profile cases involving the taking and sharing of nude photographs of fellow servicemembers.  Most notably, I was directly involved in the USS WYOMING cases where several female submarine officers were videotaped while showering on-board the ballistic submarine.  I’ve also had my fair share of “peeping-tom” cases.  I surmise that we are seeing more of these cases because of technology – photographs no longer have to be printed by a commercial entity to be looked at and shared; videos no longer have to be copied to be give others access; it’s possible to share videos and photographs instantly with others hundreds of miles away.  One thing is for sure – once the photograph or video is uploaded to the internet, control over who sees it and distributes it is lost, forever.

The Marines United Facebook page, a community that was sharing nude pictures of female Marines and other women, has more than 30,000 members comprised of active duty, reserve, and former Marines.  The first hurdle that the Marine Corps will face with regard to the issue of prosecuting any of the members under the UCMJ  is jurisdiction – for active duty members, they can be prosecuted for violations of the UCMJ 365 days a year, 24 hours a day, 7 days a week, anywhere in the world.  Reservists generally can only be prosecuted for violations of the UCMJ that occur while on active duty, in a drill status, or during active duty for training.  There is one caveat – a reservists could be recalled to active duty to answer for a UCMJ violation that was committed while the Marine was on active duty or in a drill status so long as the statute of limitations has not run.  The same goes for retirees – yes, a retiree can be recalled to active duty to be court-martialed for a UCMJ committed while the Marine was on active duty.  A former Marine, who has been completely discharged from the Marine Corps, and who has not reenlisted in another branch, cannot be court-martialed.

The second problem is identifying the appropriate statute under which to prosecute.  “Articles” of the Uniform Code of Military Justice (UCMJ) are really federal statues.  For example, Article 120, UCMJ is really 10 U.S.C. sec.  920.   The UCMJ parallels most penal codes with two exceptions.  First, the UCMJ contains purely military offenses like unauthorized absence (Article 86, UCMJ) and failure to obey an order or regulation (Article 92, UCMJ).  Second, the UCMJ contains a “general article” – Article 134, UCMJ.  Article 134 permits a convening authority (basically a commander of the accused) to charge any behavior that is 1) prejudicial to the good order and discipline in the armed forces or 2) of a nature to bring discredit to the armed forces.

The text of Article 134 reads:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

To be clear not all immoral or bad behavior not otherwise falling under a UCMJ article can be pursued under Article 134.  The Military Judge’s Benchbook, which contains all of the “jury instructions” for courts-martial, explains:

Conduct prejudicial to good order and discipline is conduct that causes a reasonably direct and obvious injury to good order and discipline. Service discrediting conduct is conduct that tends to harm the reputation of the service or lower it in public esteem.

A common example of immoral conduct that is not a violation of Article 134 is sexual intercourse with a person not the husband/wife.  Most novices believe it’s an automatic violation of Article 134 for adultery.  That is simply not the case – take, for instance, a situation where a husband and wife had been separated for 2 years, a divorce is pending, and it is widely known that both are dating.  You would be hard-pressed to explain how sexual intercourse limited to those circumstances would be prejudicial to good order and discipline or service discrediting.

Note: I am talking about the “general article” here – Article 134 actually has dozens of enumerated offense that were created by the President, all of which require proof of prejudice to good order and discipline or service discrediting conduct.  Discussion of shortfalls of those enumerated Article 134 offenses is outside the scope of this post.

The Marine Corps could file a charge of violating Article 134 against the members of the Marines United Facebook page for which it has jurisdiction.  They government – the Marine Corps – would have the burden of proof to show the specific conduct by the Marine was a violation of Article 134.  Being a member of the page is not likely going to be enough – there has to be a direct and palpable impact by the conduct the of accused on good order and discipline or the reputation of the armed forces.  The second problem is pursuing court-martial against the page members under Article 134 is barely worth the effort.  The maximum punishment for an Article 134  general disorder offense is generally 4 months confinement, reduction in rank, forfeitures, but no discharge.

When the Congress passed Article 120, Article 120a, Article 120b, and Article 120c that took effect in June 2012, it implemented its second revision of the sexual related offenses in the UCMJ in under 5 years.  It was praised as “victim-friendly” and sought to capture misconduct that was not previously captured by the UCMJ.  Ironically, those members of Congress criticizing the UCMJ for not capturing the conduct of the members of the Marines United Facebook page are the same people that participated in the re-drafting of the statutes in 2011.

Article 120c prohibits the Indecent Viewing, Visual Recording, or Broadcasting.  First,  Indecent Viewing does not prohibit the viewing of a video or photograph, even if taken surreptitiously by another – the Navy-Marine Corps Court of Criminal Appeals has found that Indecent Viewing under Article 120c requires actually viewing the real-life private area of a person (and not merely viewing a recording).  Therefore, those members of Marines United who simply viewed the photos and videos online have not committed Indecent Viewing.  Indecent Visual Recording requires that the accused recorded or videotaped the private area of another person without the consent of the alleged victim.  Those that took the photos or video posted to the Marines United Facebook page could be prosecuted under this statute so long as the alleged victim did not consent to the recording/photograph at the time it was made.  Broadcasting or Distribution under Article 120c maintains the requirement that the original photograph or video be taken without the consent of the alleged victim and under circumstances where the alleged victim had a reasonable expectation of privacy; further, the person distributing or broadcasting must know (or should have known)  it was taken circumstances where the alleged victim had a reasonable expectation of privacy.  If the member who posted the photograph or video knew or reasonably should have known that there was no consent and it was taken under circumstances where an expectation of privacy existed, that person could be prosecuted under Article 120c.

The last piece to this puzzle, which this the same in all criminal cases, is putting the evidence together to show that an accused violated Article 134 or Article 120c.  Facebook does turn over records as a result of search warrants – I just received 1000+ pages of Facebook messages and user profiles in an armed robbery case.  Importantly, Facebook will not turn over information without a search warrant, which requires probable cause that a crime was committed.  The military has little authority to issue search warrants to civilians, though a state or federal court of competent jurisdiction could do so under some circumstances on behalf of military investigators.  Even if NCIS gets the data, sifting through 30,000 members and the associated data is a massive undertaking.  Absent what was turned over by the report who broke the story having strong evidentiary value, I wouldn’t expect any prosecutions soon.

For Those Under UCMJ Jurisdiction Involved in Marines United

GET A LAWYER!

It may take some time, but the military and Congress are not going to let this thing drop.  Remember Tailhook?  That ruined the careers of those who were simply at the “conference” and who didn’t have solid alibis when the shenanigans began.

 

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