Don’t do it, but according to ACCA it may not be a crime

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case.  The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

The defense litigated the issue at trial.  And the military judge stated:

[A]lthough he found no case law on point, he interpreted existing precedent to stand for the proposition that showing a digital image or sending a digital image via electronic means could constitute a basis for an indecent exposure charge. The military judge denied the defense motion to dismiss.

The appellate court found  ““Exposure” is not specifically defined by Article 120(c), UCMJ, Article 120(n), UCMJ, or under the prior Article 134, UCMJ statute.”  Slip op. at 5.  The court then resorted to standard statutory interpretation to determine what the term meant.  They referenced a recent case of mine for how to interpret UCMJ terms.  See United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015), cert. denied Schloff v. United States, ___ U.S. ___, 193 L.Ed. 2d 793 (2016).  And the court held:

We find as a matter of law, these displays do not constitute an exposure for the purposes of these statutes because appellant did not ‘expose’ his actual live genitalia for view by the victims.

The dissenting judge began:

The reasoning of the majority in dismissing these specifications evinces an erroneous interpretation of the plain meaning of the term “expose,” a flawed statutory construction analysis, and a failure to apply the applicable case law of this court as well as our superior court.

And concludes:

The facts are not complex, the definition of expose is unambiguous, the intent of Congress is clear, the case law of this court is persuasive, and the precedent of our superior court is controlling. I would affirm the findings and sentence as adjudged.

The [members] panel sentenced appellant to a bad-conduct discharge, confinement for nine months, forfeiture of all pay and allowances, and reduction to the grade of E-1.  The convening authority disapproved one month of confinement.  Upon reassessment, the appellate court approved only six months of the confinement.  A Pyrrhic victory, because the Appellant had served all of his confinement by the time the appellate court acted.

I checked the Daily Journal for the Court of Appeals for the Armed Forces and do not see a certification docketed from the Army TJAG.  Under the current U.S.C.A.A.F. Rule 22(b)(1), the government has 60 days from the date of the opinion to file a Certificate of Review under UCMJ art. 67(a)(2)–29 May 2016.