(1) Possessing, receiving or viewing: DD, TF, 10 years and E-1. (Category 2)

(2) Possessing with intent to distribute: DD, TF, 15 years and E-1. (Category 3)

(3) Distribution: DD, TF, 20 years and E-1. (Category 3)

(4) Production: DD, TF, 30 years and E-1. (Category 4)

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________ knowingly and wrongfully (possess) (receive) (view) (distribute) (produce) 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).

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 and of a nature to bring discredit upon the armed forces).

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 and of a nature to bring discredit upon the armed forces).

Distributing child pornography:

(1) That (state the time and place alleged) the accused knowingly and wrongfully distributed child pornography, to wit: __________, to (state the name of the person to whom distributed); 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 and of a nature to bring discredit upon the armed forces).

Producing child pornography:

(1) That (state the time and place alleged) the accused knowingly and wrongfully produced 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 and of a nature to bring discredit upon the armed forces).

(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)

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

(“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. (In the case of obscene visual depictions of what appears to be a minor, it is not required that the minor depicted actually exists.)

“Sexually explicit conduct” means actual or simulated:

(a) sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(b) bestiality;

(c) masturbation;

(d) sadistic or masochistic abuse; or

(e) lascivious exhibition of the anus, genitals or pubic area of any person.

(“Lascivious” means exciting sexual desires or marked by lust. Not every exposure of the anus, genitals or pubic area constitutes a lascivious exhibition. Consideration of the overall content of the visual depiction should be made 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 anus, 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” includes any developed or undeveloped photograph, picture, film or video; any digital or computer image, picture, film or video made, adapted, modified, or generated 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” 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. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.)

(“Producing” means creating or manufacturing. It refers to making child pornography that did not previously exist. It does not include reproducing or copying.)

“Wrongful” 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.

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.

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).

(1) Definition of “lascivious exhibition”. See US v. Roderick, 62 MJ 425, 429-430 (CAAF 2006), citing US v. Dost, 636 F Supp 828 (SD Cal, 1986).

(2) “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 F3d 733 (3d Cir 1994), cert denied, 513 US 1109 (1995).