Looking at a picture of a naked child may not be a crime

Posted by: William Cassara On: May 27th, 2013

Possessing or receiving child pornography may not be as hard to defend against as you think. If the government charges a servicemember at a court-martial of violating a statute by possessing or receiving child pornography, the government will have to be able to prove during the court-martial that the picture or pictures in question meet the definition of child pornography. Recently, in an unpublished case the Navy-Marine Court of Criminal Appeals determined that many of the presented pictures of naked children did not meet the statute's definition of child pornography. The judge who wrote the opinion in United States v. Rapp pointed out that the definition in the statute charged at the court-martial was extremely specific in criminalizing only those pictures involving "sexually explicit conduct." According to the statute, to qualify as "sexually explicit conduct" the picture must depict a "lascivious expedition of the genitals or pubic area." In Rapp, several of the pictures were determined not to meet this definition and were therefore, constitutionally protected. When you are charged at a court-martial based on a federal statute or one of the punitive articles of the UCMJ, every word and definition of the charge matters. The Rapp case stands to show that the government must be very specific in proving every single word of a charge, and if they are not, it is quite possible that the case will be overturned on appeal. I have a great deal of experience with court-martials and court-martial appeals. Call me for help. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-550-1981 for a free consultation.

Location : Blog