In United States v. Grijalva
, the Coast Guard court addresses whether a prosecution under Article 134(2) for sharing or broadcasting a nude images of another person is preempted by Article 117a, UCMJ.
The accused hacked into a female friend's Snapchat account. He then downloaded various nude images of her from that account. He then created a fake Tinder account in that person's name and put the nude photos he had gotten through the hacking on the account which were of course shared. He even made some money out of these acts. The idea was that for a fee he would set up a meeting with "her."
He was convicted at court-martial because he knowingly, wrongfully, and without consent broadcast the nude images. In the process, he violated the person's privacy interest which was likely to cause harm to her reputation, and emotional state, or cause embarrassment and harassment. The court did not address the idea that the victim had already shared the images on her Snapchat account so might have given up her right to privacy.
An element of Article 117a is that "under the circumstances, [there was] a reasonably direct and palpable connection to a military mission or military environment.” This phrasing is somewhat ambiguous and sounds like something that is prejudicial to good order and discipline or is service discrediting. This is something a military defense counsel should consider.
The court reviewed the law on preemption—which is found in the R.C.M. under Article 134. Generally, preemption arises when an Article 134 charge is identical to one found in Articles 80 through 132 of the UCMJ. For preemption to apply Congress had to be clear in limiting a prosecution defined in one of the Articles and there is a “residuum of elements” in the Article 134 charge.
The court next reviewed the legislative history of Article 117a and determined that the offense was intended to address only situations where a servicemember or veteran were the victims. In doing so, it held that prosecution where there was a civilian victim could not be maintained under the Article. With that, the court turned to the Article 134(2) allegation of which Gajalava had been convicted. The Article was Congress's response to a spate of social media postings by a group of Marines.
The victim in Gajalava was a civilian and the sharing was done to others which would include civilians.
In the process the court has devined a congressional intent to add a service-connection requirement for a prosecution under Article 117a—both the accused and the victim must be on active duty, in the Reserves, or a veteran. Keep in mind that a veteran includes anyone who has served in the military long enough to have been discharged at the end of the contract or served until retirement. That is a rather large pool of potential victims—there are millions serving or who are veterans. A retiree accused of such conduct should talk to an experienced military defense lawyer for ways in which to attack such a prosecution.
Remember, since Solorio v. United States, there is no Supreme Court dictate that a court-martial prosecution must have a service-connection. The Suprem Court overruled O’Callahan v. Parker and Relford v. Commandant to hold that a person’s military status was all that was needed to confer court-martial jurisdiction. For court-martial purposes anyone on active duty, on Reserve or National Guard orders, and a retiree is subject to court-martial. Thus, it is quite likely a court would hold that a retiree can be guilty of an Article 117a offense.
Interestingly, during the congressional discussions on enacting Article 117a the Department of Justice, in 2017, had recommended creating an enumerated offense under Article 134 in the Manual for Courts-Martial. The current Manual (2019) does not contain an enumerated offense.
That is partly why the charging decision was correct here. But, it is quite likely that Gajalava will petition the Court of Appeals for the Armed Forces to see if they will agree with him about the preemption issue. For the moment, Gajalava is good law for the Coast Guard and may be persuasive if a similar case has to be decided by the Army Court of Criminal Appeals, the Air Force Court of Criminal Appeals, or the Navy-Marine Corps Court of Criminal Appeals. It is quite possible that the CAAF will deny the petition.