Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

Note: This law applies only to Article 134 UCMJ Possessing Child Pornography with Intent to Distribute offenses committed on and after 1 January 2019. Child Pornography is also referred to as Child Sexual Abuse Material (CSAM)

What is Article 134 UCMJ Possessing Child Pornography with Intent to Distribute?

Article 134 UCMJ Possessing Child Pornography with Intent to Distribute addresses the crime of possessing child pornography with intent to distribute. This offense involves the possession of sexually explicit images of minors intending to distribute them to others. The military takes this crime very seriously due to its severe implications and the harm it causes to the victims.

Penalties for this offense include significant confinement, dishonorable discharge, and forfeiture of all pay and allowances. The severe consequences highlight the critical need for the accused to seek the best military defense lawyers.

Court martial lawyers play an essential role in defending those accused of possessing child pornography with intent to distribute. They are skilled in navigating the complexities of military law, challenging the evidence presented by the prosecution, and ensuring the protection of the accused’s legal rights. A strong defense strategy can significantly impact the case’s outcome, potentially mitigating the severe penalties associated with this charge.

Engaging experienced court martial lawyers, like those at Gonzalez & Waddington, is crucial for those facing such serious allegations. Their comprehensive understanding of military justice and commitment to defending service members can provide the robust defense necessary to achieve the best possible outcome in these high-stakes cases.

Note: The maximum and minimum punishments for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute or Child Sexual Abuse Material (CSAM) vary depending on the date of the offense.

What are the Article 134 UCMJ Child Pornography Offenses?

• Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography
• Article 134 UCMJ Possessing Child Pornography with Intent to Distribute
• Article 134 UCMJ Distributing Child Pornography
• Article 134 UCMJ Producing Child Pornography

What are the Elements of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute?

1. That (state the time and place alleged) the accused knowingly and wrongfully possessed child pornography, to wit: __________;
2. That the possession was with the intent to distribute; and
3. That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces).

What are the Maximum Punishments for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute?

For Article 134 UCMJ Possessing Child Pornography with Intent to Distribute committed between 1 January 2019 and 27 December 2023:

• 15 Years of Confinement
• Dishonorable Discharge, Bad Conduct Discharge, Dismissal
• Total Forfeitures
• Reduction to E-1
• Collateral Consequences of a Federal Felony Conviction
• Collateral Consequences of Registration as a State & Federal Sex Offender

For Article 134 UCMJ Possessing Child Pornography with Intent to Distribute committed after 27 December 2023

• Under the Sentencing Parameters, Article 134 UCMJ Possessing Child Pornography with Intent to Distribute or Child Sexual Abuse Material (CSAM) is a Category 3 Offense – Confinement from 30-120 months (2 years and 6 months to 10 years)
• Dishonorable Discharge, Bad Conduct Discharge, Dismissal
• Total Forfeitures
• Reduction to E-1
• Collateral Consequences of a Federal Felony Conviction
• Collateral Consequences of Registration as a State & Federal Sex Offender
• Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence.

Combined UCMJ Maximum Punishment Charts

• Maximum Punishments for UCMJ Offenses 2024: Combined UCMJ Punishments Chart
• UCMJ Lesser Included Offenses Chart 2024 UCMJ

Sample Specification for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

In that NASGT Cullen Griffin, US Army, did, at or near Daegu, South Korea, on or about 4 March 2025, knowingly and wrongfully possess child pornography, to wit: a video of a minor, or what appears to be a minor, engaging in sexually explicit conduct with intent to distribute the said child pornography, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Model Specification for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________ knowingly and wrongfully (possess) child pornography, to wit: a (photograph) (picture) (film) (video) (digital image) (computer image) of a minor, or what appears to be a minor, engaging in sexually explicit conduct (with intent to distribute the said child pornography), and that said conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces).

What are the Definitions for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute or Child Sexual Abuse Material (CSAM)?

“Conduct prejudicial to good order and discipline” in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute cases causes a reasonably direct and obvious injury to good order and discipline.

“Service discrediting conduct” tends to harm the reputation of the service or lower it in public esteem.

Defining “child pornography” in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute cases. The definition of “child pornography” used below will depend upon the evidence presented. The first definition below should be given where actual minors are in issue. The second definition below should be given where the depictions do not involve the use of actual minors, or there is some question as to whether actual minors were used in the depictions. If appropriate, give both definitions.

“Child pornography” means material that contains a visual depiction of an actual minor engaging in sexually explicit conduct.

“Child pornography” (also) means material that contains an obscene visual depiction of a minor engaging in sexually explicit conduct. Such a depiction need not involve an actual minor but instead only what appears to be a minor.

“Obscene” means that the average person applying contemporary community standards would find that the visual images depicting minors engaging in sexually explicit conduct, when taken as a whole, appeal to the prurient interest in sex and portray sexual conduct in a patently offensive way, and that a reasonable person would not find serious literary, artistic, political, or scientific value in the visual images depicting minors engaging in sexually explicit conduct.

“Minor” and “child” mean any person under the age of 18 years.

“Sexually explicit conduct” means actual or simulated:

• sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
• bestiality;
• masturbation;
• sadistic or masochistic abuse; or
• lascivious exhibition of the genitals or pubic area of any person.

Lascivious Exhibition under Article 134 UCMJ Possessing Child Pornography with Intent to Distribute. The following instruction on “lascivious exhibition” should be given when there is an issue as to whether an exhibition of the genitals or pubic area of any person was lascivious. Note that an exhibition of the genitals or pubic area may be lascivious even if those areas are clothed. Note also that nudity and sexually provocative depictions of minors that do not involve the exhibition of the genitals or pubic area of any person or other sexually explicit conduct are not child pornography.

“Lascivious” under Article 134 UCMJ Possessing Child Pornography with Intent to Distribute means exciting sexual desires or marked by lust. Not every exposure of the genitals or pubic area constitutes a lascivious exhibition. The overall content of the visual depiction should be considered to determine if it constitutes a lascivious exhibition.

In making this determination, you should consider such factors as whether the focal point of the depiction is on the genitals or pubic area, whether the setting is sexually suggestive, whether the child is depicted in an unnatural pose or in inappropriate attire considering the child’s age, whether the child is partially clothed or nude, whether the depiction suggests sexual coyness or willingness to engage in sexual activity, and whether the depiction is intended or designed to elicit a sexual response in the viewer, as well as any other factors that may be equally if not more important in determining whether a visual depiction contains a lascivious exhibition.

A visual depiction, however, need not involve all these factors to be a lascivious exhibition.

“Visual depiction” under Article 134 UCMJ Possessing Child Pornography with Intent to Distribute includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or any digital or electronic data capable of conversion into a visual image.

“Distributing” under Article 134 UCMJ Possessing Child Pornography with Intent to Distribute means delivering to the actual or constructive possession of another.

“Possessing” means exercising control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. More than one person can possess an item simultaneously, as when several people share control over an item.

“Wrongful” under Article 134 UCMJ Possessing Child Pornography with Intent to Distribute means without any legal justification or excuse. Any facts or circumstances that show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, but not limited to, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement.

An accused may not be convicted of (possessing) (receiving) (viewing) (distributing) (producing) child pornography if he/she did not know that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. An act is done “knowingly” if done voluntarily and intentionally. An act done because of mistake or accident or other innocent reasons is not done “knowingly.”’

Knowledge and Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

Knowledge may be inferred from circumstantial evidence, such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed. However, the drawing of this inference is not required.

Thus, to convict the accused, you must be convinced beyond a reasonable doubt that the accused knew that he/she (possessed) (received) (viewed) (distributed) (produced) the child pornography. However, it is not required that the accused knew the actual ages of the persons in the child pornography, but he/she must have known or believed the persons to be minors.

Redacted Exhibits in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute cases

On motion of the government in any prosecution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information other than the age or approximate age of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible. It may be redacted from any otherwise admissible evidence. Upon request of the Government, the panel shall be instructed that it can draw no inference from the absence of such evidence. Below is a suggested instruction concerning this issue:

Certain information in Prosecution Exhibit(s) ______ has been redacted as irrelevant to these proceedings. You are not to speculate as to what has been redacted, nor are you to draw any adverse inference from either side of that redaction.

Legal References for Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

• Definition of “lascivious exhibition”. See US v. Roderick, 62 MJ 425, 429-430 (CAAF 2006), citing US v. Dost, 636 F.Supp 828 (S.D.Cal., 1986).
• “Lascivious exhibition of the genitals or pubic area of any person” does not require nudity; the minor or other person in the depiction with the minor may be clothed, provided the genitals or pubic area is a focus of the depiction. See US v. Knox, 32 F.3d 733 (3d Cir. 1994), cert. denied, 513 US 1109 (1995), cited by US v. Anderson, 2010 WL3938363 (ACCA 2010), review denied, 69 MJ 451 (CAAF 2010).

What are the collateral consequences of having to register as a convicted sex offender?

Potential Collateral Consequences of a Conviction of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

• • Denied housing or difficulty finding housing
  • Loss of family
  • Isolation
  • No educational opportunities
  • Unemployable or difficulty finding employment
  • Physical assault
  • Increased homelessness
  • Harassment
  • Financial hardship
  • Stigmatization
  • The decline in mental health
  • No internet access
  • Deterioration of social bonds
  • Loss of residency
  • Difficulty with relationships
  • Social disgrace and humiliation
  • Loss of friends
  • Loss of custody of children
  • Lack of privacy

Article 134 UCMJ Possessing Child Pornography with Intent to Distribute Military Defense Lawyers

If you are suspected or accused of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute, aka Child Sexual Abuse Material (CSAM), speak with one of our experienced military court martial lawyers to discuss your case.

Introduction to Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

Article 134 of the Uniform Code of Military Justice (UCMJ) addresses general offenses that may not be specifically listed under other articles but still adversely affect good order and discipline or bring discredit upon the armed forces. Possessing child pornography with intent to distribute is a grave offense under this article, reflecting the military’s strict stance against the sexual exploitation of minors. This guide explores the elements, potential punishments, collateral consequences, and broader implications of a conviction under Article 134 for possessing child pornography with intent to distribute.

Basics of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

To secure a conviction for possessing child pornography with intent to distribute under Article 134, the prosecution must prove the following elements beyond a reasonable doubt:

• Possession: The accused knowingly possessed material that constitutes child pornography. This involves having control over the material, whether physically or digitally.
• Child Pornography: The material depicts minors engaged in sexually explicit conduct. The term “child” refers to any person under 18.
• Intent to Distribute: The accused intended to distribute or share the material with others. This can include physical distribution, electronic transmission, or any other method of dissemination.
• Adverse Impact: The conduct was prejudicial to good order and discipline in the armed forces or of a nature to discredit the armed forces.

Collateral Consequences of a Conviction of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

A conviction of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute carries numerous collateral consequences, which extend beyond the immediate penalties. These include:

• Sex Offender Registration: The convicted individual will be required to register as a sex offender, leading to significant personal and social ramifications. This includes being listed on public registries, which can lead to social ostracism and difficulty finding housing and employment.
• Employment Challenges: Many employers conduct background checks and are unlikely to hire individuals with a conviction for possessing child pornography, especially with intent to distribute. This can severely limit job prospects and career advancement opportunities.
• Loss of Military Benefits: A dishonorable discharge typically results in losing all military benefits, including retirement pay, healthcare, and access to military facilities and services.
• Legal Restrictions: Convicted sex offenders face various legal restrictions, including limitations on internet usage, travel, and residency. These restrictions can significantly impact daily life and personal freedom.
• Social Stigma: The social stigma associated with a conviction for child pornography can lead to isolation, harassment, and difficulties in maintaining personal relationships. This stigma can persist long after the sentence is served.

Impact on the Military Community in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

Offenses involving child pornography have a profound impact on the military community. They undermine the values and standards expected of service members and can erode trust and cohesion within units. The military’s strict enforcement of laws against such offenses reflects its commitment to maintaining a professional and ethical fighting force.

Legal Defenses in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute

Accused individuals have the right to present a defense against charges of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute. Common defenses include:

• Lack of Knowledge: The defense may argue that the accused did not knowingly possess the material, for example, if it was downloaded inadvertently.
• No Intent to Distribute: The defense may contend that there was no intent to distribute the material, such as if the accused had no plans or actions to share the material with others.
• Mistaken Identity: The defense may argue that the accused was not the person who possessed or intended to distribute the material, potentially because someone else used their computer or account.
• Unlawful Search and Seizure: The defense may challenge the legality of how the evidence was obtained, arguing that it resulted from an unlawful search and seizure, thus violating the accused’s rights.

Importance of Legal Representation in Article 134 UCMJ Possessing Child Pornography with Intent to Distribute Cases

Given the severe consequences of a conviction, it is crucial for individuals accused of possessing child pornography with intent to distribute to seek experienced legal representation. A qualified military defense attorney can provide essential guidance, build a robust defense, and protect the accused’s rights throughout the legal process.

Speak with our Experienced Article 134 UCMJ Possessing Child Pornography with Intent to Distribute Court-Martial Lawyers

Article 134 UCMJ’s provisions on possessing child pornography with intent to distribute underscore the military’s commitment to upholding high ethical standards and protecting vulnerable populations. The severe penalties and collateral consequences of Article 134 UCMJ Possessing Child Pornography with Intent to Distribute reflect the gravity of the offense and the broader societal and organizational impacts. Understanding the elements of the offense, potential defenses, and the importance of legal representation is essential for anyone facing such charges.