Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography

Note: This law applies only to Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography 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, Receiving, or Viewing Child Pornography?

Article 134 of the UCMJ covers offenses related to child pornography, including possessing, receiving, or viewing such material. This offense is treated with utmost seriousness due to the exploitation and harm caused to minors. Convictions for these crimes can result in severe penalties, including long-term confinement, dishonorable discharge, and forfeiture of pay.

Given the grave nature of these charges, it is crucial for anyone accused to seek representation from the best military defense lawyers. Court martial lawyers are essential in navigating the complexities of military law, protecting the accused’s rights, and developing a strong defense strategy.

An experienced legal team, such as those at Gonzalez & Waddington, can significantly impact the case’s outcome. Their deep understanding of military justice and proven track record in defending service members ensure that the accused receives comprehensive and effective legal representation.

Note: The maximum and minimum punishments for Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography 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, Receiving, or Viewing Child Pornography?

1. That (state the time and place alleged), the accused knowingly and wrongfully (possessed) (received) (viewed) child pornography, to wit: __________; and
2. 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, Receiving, or Viewing Child Pornography?

For offenses committed between 1 January 2019 and 27 December 2023:

• 10 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 offenses committed after 27 December 2023

• Under the Sentencing Parameters, Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography or Child Sexual Abuse Material (CSAM) is a Category 2 Offense – Confinement from 1-36 months (1 month to 3 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, Receiving, or Viewing Child Pornography

In that Sgt Jacob Goodwin, US Marine Corps, did, at or near Marine Corps Recruit Depot (MCRD) San Diego, San Diego, California, on or about 22 February 2025, knowingly and wrongfully view child pornography, to wit: a photograph of a minor, or what appears to be a minor, engaging in sexually explicit conduct, and that said conduct was to the prejudice of good order and discipline in the armed forces.

Model Specification for Article 134 UCMJ Possessing, Receiving, or Viewing Child Pornography

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________ knowingly and wrongfully (possess) (receive) (view) 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, 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, Receiving, or Viewing Child Pornography or Child Sexual Abuse Material (CSAM)?

“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” under Article 134 UCMJ Possessing Receiving Viewing Child Pornography is conduct that tends to harm the reputation of the service or lower it in public esteem.

Defining “child pornography.” 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” in Article 134 UCMJ Possessing Receiving Viewing Child Pornography cases 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 Receiving Viewing Child Pornography

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” 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.

Visual Depictions and Article 134 UCMJ Possessing Receiving Viewing Child Pornography

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

“Visual depiction”in Article 134 UCMJ Possessing Receiving Viewing Child Pornography cases 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.

“Possessing” in Article 134 UCMJ Possessing Receiving Viewing Child Pornography 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. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.

“Wrongful” in Article 134 UCMJ Possessing Receiving Viewing Child Pornography cases 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 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, in order 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 Receiving Viewing Child Pornography 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 and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, 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 not relevant to these proceedings. You are not to speculate as to what has been redacted nor are you to draw any adverse inference to either side from that redaction.

Legal References for Article 134 UCMJ Possessing Receiving Viewing Child Pornography

• 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, Receiving, or Viewing Child Pornography

• • 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 Receiving Viewing Child Pornography Military Defense Lawyers

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

Basics of Article 134 UCMJ Possessing Receiving Viewing Child Pornography

• Possession: The accused knowingly and wrongfully possessed material that depicts a minor engaging in sexually explicit conduct.
• Receipt: The accused knowingly and wrongfully received material that depicts a minor engaging in sexually explicit conduct.
• Viewing: The accused knowingly and wrongfully viewed material that depicts a minor engaging in sexually explicit conduct.
• Knowledge: The accused knew that the material involved a minor engaging in sexually explicit conduct.
• Discredit to the Armed Forces: The conduct was of a nature to bring discredit upon the armed forces or was prejudicial to good order and discipline.

Collateral Consequences of Article 134 UCMJ Possessing Receiving Viewing Child Pornography Conviction

A conviction for possessing, receiving, or viewing child pornography under Article 134 has numerous collateral consequences, including:

• Sex Offender Registration: The convicted individual will be required to register as a sex offender, which involves being listed on public sex offender registries, regular reporting to law enforcement, and restrictions on residency and employment.
• Employment Challenges: Finding civilian employment can be extremely difficult for registered sex offenders, especially those with a dishonorable discharge. Many employers are hesitant to hire individuals with such a conviction.
• Loss of Military Benefits: Convicted individuals typically lose all military benefits, including retirement pay, healthcare benefits, and access to military facilities.
• Social Stigma: The social stigma attached to being a registered sex offender can lead to isolation, harassment, and difficulties in maintaining personal relationships.
• Legal Restrictions: Convicted sex offenders may face various legal restrictions, including limits on internet usage, travel, and contact with minors.

Impact on the Victim in Article 134 UCMJ Possessing Receiving Viewing Child Pornography Cases

The impact of child pornography on victims is profound and long-lasting. Victims may experience a range of emotional, psychological, and physical effects, including:

• Emotional Trauma: Feelings of shame, guilt, and anxiety are common among victims of child pornography. These feelings can persist into adulthood and affect all areas of life.
• Psychological Issues: Victims may develop mental health conditions such as depression, post-traumatic stress disorder (PTSD), and other anxiety disorders.
• Physical Health Problems: Victims may suffer from long-term health issues related to the abuse they endured.
• Behavioral Changes: Victims may exhibit changes in behavior, such as withdrawal from social activities, difficulty in school, and increased risk-taking behaviors.
• Relationship Difficulties: Trust issues and difficulties in forming healthy relationships are common among survivors of child pornography exploitation.

Legal Defenses to Article 134 UCMJ Possessing Receiving Viewing Child Pornography

Accused individuals have the right to present a defense against charges of possessing, receiving, or viewing child pornography under Article 134 UCMJ Possessing Receiving Viewing Child Pornography. Common defenses include:

• Lack of Knowledge: The defense may argue that the accused did not know the material depicted a minor or did not know that the material was in their possession.
• Accidental Possession: The defense may argue that the accused accidentally came into possession of the material without any intent to view or distribute it.
• False Accusations: The defense may present evidence suggesting that the accusations are false or motivated by ulterior motives.
• Insufficient Evidence: The defense may argue that the prosecution has not provided sufficient evidence to prove the accused’s guilt beyond a reasonable doubt.

Importance of Legal Representation in Article 134 UCMJ Possessing Receiving Viewing Child Pornography Cases

Given the serious nature of the charges and the severe consequences of a conviction, it is crucial for individuals accused of possessing, receiving, or viewing child pornography under Article 134 to seek experienced legal representation. A qualified military defense attorney can provide guidance, build a strong defense, and protect the accused’s rights throughout the legal process.

Military Defense Lawyers for Article 134 UCMJ Possessing Receiving Viewing Child Pornography

Article 134 UCMJ’s provisions on possessing, receiving, or viewing child pornography are designed to protect minors within the military community and uphold the standards of conduct required for military service. The severe penalties and collateral consequences underscore the gravity of such offenses. Understanding the elements of Article 134 UCMJ Possessing Receiving Viewing Child Pornography, potential defenses, and the importance of legal representation is essential for anyone facing such charges.