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CAAF and CP and conduct unbecoming
United States v. Forney, __ M.J. ___ (C.A.A.F. March 26, 2009). This is a case where the appellant was convicted on charges and evidence for a situation later declared unconstitutional by the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This is the issue of actual versus virtual CP — primarily the Japanese anime cartoon type. However, the court found that the appellant could properly be convicted of conduct unbecoming in violation of Article 133, UCMJ.
[T]he possession of images of virtual children engaged in sexually explicit conduct may give rise to a conviction for conduct unbecoming an officer and a gentleman.
That the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law.
And, based on current military charging practice the issue of actual or virtual images shouldn’t be a problem in the future. The military will prosecute possession of “anime” CP under either Article 133 or 134. Regardless, this case is worth reading for the discussion of conduct unbecoming and also the relevant instructions to be given.