Maximum punishment

DD, TF, 2 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, knowingly and wrongfully [(distribute) (broadcast)] [an intimate visual image of __________) (a visual image of sexually explicit conduct involving __________)], a person who was at least 18 years of age when the image was created, is identifiable from (the image itself) (information conveyed in connection with the image), and did not explicitly consent to the (broadcast) (distribution) of the image, when the accused (knew) (reasonably should have known) the image was made under circumstances in which __________ retained a reasonable expectation of privacy regarding any (broadcast) (distribution) of the image, and where the accused (knew) (reasonably should have known) that the (broadcast) (distribution) of the image was likely to [cause (harm) (harassment) (intimidation) (emotional distress) (financial loss), to wit: __________] [harm substantially the (health) (safety) (business) (calling) (career) (financial condition) (reputation) (personal relationships), to wit: __________] and that, under the circumstances, such conduct had a reasonably direct and palpable connection to (military mission) (military environment).

Elements

(1) That (state the time and place alleged), the accused knowingly and wrongfully (broadcasted) (distributed) a visual image;

(2) That the visual image is [(an intimate visual image of) (a visual image of sexually explicit conduct involving)] another person [to wit: (state the name of the person depicted)];

(3) That the person depicted in the (intimate visual image) (visual image of sexually explicit conduct):

(a) was at least 18 years of age at the time the (intimate visual image) (visual image of sexually explicit conduct) was created, and

(b) is identifiable from the (intimate visual image) (visual image of sexually explicit conduct)] itself or from information displayed in connection with the (intimate visual image) (visual image of sexually explicit conduct), and

(c) did not explicitly consent to the (broadcast) (distribution) of the (intimate visual image) (visual image of sexually explicit conduct);

(4) That the accused knew or reasonably should have known that the (intimate visual image) (visual image of sexually explicit conduct) was made under circumstances in which (state the name of the person depicted) retained a reasonable expectation of privacy regarding any (broadcast) (distribution) of the (intimate visual image) (visual image of sexually explicit conduct);

(5) That the accused knew or reasonably should have known that the (broadcast) (distribution) of the (intimate visual image) (visual image of sexually explicit conduct) was likely to:

(a) cause (harm) (harassment) (intimidation) (emotional distress) (financial loss) for (state the name of the person depicted), or

(b) harm substantially (state the name of the person depicted) with respect to (his) (her) (health) (safety) (business) (calling) (career) (financial condition) (reputation) (personal relationships); and

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

Definitions & other instructions

An act is done “knowingly” when it is done intentionally and on purpose. An act done as the result of a mistake or accident is not done “knowingly.”

“Wrongfully” means without legal excuse or justification. (A (broadcast) (distribution) of an image is not wrongful if the disclosure of the image was in the bona fide public interest. For example, a (broadcast) (distribution) of an image is not wrongful if done pursuant to any lawful law enforcement, correctional, or intelligence activity. Also, a (broadcast) (distribution) of an image is not wrongful if done during the reporting of unlawful activity or done pursuant to a subpoena or court order for use in a legal proceeding).

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

(The term “distribute” means to deliver to the actual or constructive possession of another person, including transmission by mail or electronic means.)

The term “intimate visual image” means a visual image that depicts a private area of a person.

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

The term “reasonable expectation of privacy” means circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public. Whether a reasonable expectation of privacy exists is determined based on the totality of the circumstances.

The term "sexually explicit conduct" means actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.

The term “visual image” means the following:

(A) Any developed or undeveloped photograph, picture, film, or video;

(B) 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;

(C) Any digital or electronic data capable of conversion into a visual image.

A “reasonably direct and palpable connection to a military mission or military environment” means conduct that has a measurably divisive effect on unit or organization discipline, morale, or cohesion, or must be clearly detrimental to the authority or stature of or respect toward a Servicemember. The connection between the conduct and a military mission or military environment is contextually oriented and cannot be evidenced by conduct that is connected only in a remote or indirect sense.

The evidence has raised the issue of voluntary intoxication in relation to the offense of (state the alleged offense). With respect to that offense, I advised you earlier that the government is required to prove that the accused knew or reasonably should have known that the visual image was made under circumstances in which (state the name of the person depicted) retained a reasonable expectation of privacy regarding any broadcast or distribution of the visual image. I also advised you earlier that the government is required to prove that the accused knew or reasonably should have known that the (broadcast) (distribution) of the visual image was likely to cause harm, harassment, intimidation, emotional distress, or financial loss for (state the name of the person depicted), or to harm substantially (state the name of the person depicted) with respect to (his) (her) health, safety, business, calling, career, financial condition, reputation, or personal relationships. In deciding whether the accused had such knowledge, you should consider the evidence of voluntary intoxication.

The law recognizes that a person’s ordinary thought process may be materially affected when (he) (she) is under the influence of intoxicants. Thus, evidence that the accused was intoxicated may, either alone or together with other evidence in the case, cause you to have a reasonable doubt that the accused had the required knowledge.

On the other hand, the fact that the accused may have been intoxicated at the time of the offense does not necessarily indicate that (he) (she) was unable to have the required knowledge because a person may be drunk yet still be aware at that time of (his) (her) actions and their probable results.

In deciding whether the accused had the required knowledge, you should consider the effect of intoxication, if any, as well as the other evidence in the case.

The burden of proof is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that the accused in fact had the required knowledge, the accused will not avoid criminal responsibility because of voluntary intoxication.

However, on the question of whether the accused “reasonably should have known” something, you may not consider the accused’s intoxication, if any, because what a person reasonably should have known refers to what an ordinary, prudent, sober adult would have reasonably known under the circumstances of this case.

In summary, voluntary intoxication should be considered in determining whether the accused had actual knowledge. Voluntary intoxication should not be considered in determining whether the accused "reasonably should have known" something.