Part IV · Punitive Articles

Article 134. Child pornography · MCM ¶ 95

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes
(a) Text of statute. See paragraph 91.
(b) Elements.
(1) Possessing, receiving, or viewing child pornography.
(a) That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and
(b) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
(2) Possessing child pornography with intent to distribute.
(a) That the accused knowingly and wrongfully possessed child pornography;
(b) That the possession was with the intent to distribute; and
(c) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
(3) Distributing child pornography.
(a) That the accused knowingly and wrongfully distributed child pornography to another; and
(b) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
(4) Producing child pornography.
(a) That the accused knowingly and wrongfully produced child pornography; and
(b) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
(c) Explanation.
(1) In general. The Article 134 offense of child pornography is broader than the federal and state statutes referenced below and extends to visual depictions of what appear to be minors. That is, the images include sexually explicit images that may not actually involve minors, but either resemble or are staged to appear so. Article 134—Child pornography is not intended to preempt prosecution of other federal and state law child pornography and obscenity offenses which may be amenable to courts-martial via Article 134 clauses 2 and 3.
(2) Federal “Child pornography” and “Obscenity” offenses. Practitioners are advised that the Title 18, United States Code, criminalizes the production, distribution, possession with intent to distribute, possession, and receipt of sexually explicit images of actual children under the age of 18. See 18 U.S.C. §§ 2251; 2252A. Practitioners may charge these offenses utilizing Article 134, clause 3 (crimes and offenses not capital). Practitioners are further advised that Title 18 United States Code, Chapter 71, criminalizes the production of “obscene images,” that is, visual depictions of any kind, including a drawing, cartoon, sculpture, or painting. Such images are considered obscene under federal law when they depict minors involved in sexually explicit activity, and/or engaging in bestiality, sadistic or masochistic abuse. See 18 U.S.C. § 1466A. These federal obscenity offenses may likewise be prosecuted at courts-martial via Article 134, clause 3.
(3) State “child pornography” and “obscenity” offenses. If a Servicemember violates an applicable state child pornography or obscenity statute within the jurisdiction of a given state, the substance of that state child pornography and obscenity law may be charged via Article 134, clause 2 as conduct “of a nature to bring discredit upon the armed forces.” When so charged, the Article 134 charge should recite every applicable element under the state statute. The maximum punishment for such offenses is the applicable maximum punishment prescribed for such an offense under state law.
(4) “Child pornography” means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct.
(5) An accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography if he was not aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness 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.
(6) “Distributing” means delivering to the actual or constructive possession of another.
(7) “Minor” means any person under the age of 18 years.
(8) “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.
(9) “Producing” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.
(10) “Sexually explicit conduct” means actual or simulated:
(a) sexual intercourse or sodomy, including genital to genital, oral to genital, anal to genital, or oral to 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 genitals or pubic area of any person.
(11) Visual depiction 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.
(12) Wrongfulness. 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.
(13) 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.
(d) Maximum punishment.
(1) Possessing, receiving, or viewing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Producing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.
(e) Sample specification. In that _____ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __ 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).
Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.
3a-95-1CHILD PORNOGRAPHY
NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
Maximum punishment

(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)

Sample specification

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).

Elements

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).

Definitions & other instructions

(“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.)

NOTE 2. 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” 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.

NOTE 3. . Lascivious Exhibition. The word “anus” was not included in the definition of lascivious exhibition until the signing of EO 14130, dated 20 December 2024. The following instruction on “lascivious exhibition” should be given when there is an issue as to whether an exhibition of the anus, genitals or pubic area of any person was lascivious. Note that an exhibition of the anus, 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 anus, 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 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.

NOTE 4. . Redacted Exhibits. 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.

NOTE 5. Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), Instruction 7-3, Circumstantial Evidence (Intent) (when the offense is possession with the intent to distribute), and Instructions 5-11-1 or 5-13-2, Mistake of Fact, may be applicable.
NOTE 6. Conduct pled as both prejudicial to good order and discipline and service discrediting. When the conduct is pled as both prejudicial to good order and discipline and service discrediting, the following instruction should be given:

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 (___).

References

(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).

Source: Instruction 3a-95-1 · view original on jagcnet.army.mil