Spying on the Shower/Latrine Unit--cellphones

There are quite a few cases coming up of people using their smartphone to record themselves having sex, to record others having sex, and looking at "sexual" images, or sharing sexual images of others--with or without consent of the other person(s).

A new case from the Court of Appeals for the Armed Forces is one you and your military defense lawyer need to know about.

United States v. Mays presents a novel set of facts.

The Appellant was seen holding a cellphone over a shower stall in the SLU while a male was showering. This led to charges of attempted wrongful and knowing view of a person's private area, without consent, and where there was an expectation of privacy--of two victims. Noone could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone.

The Appellant's theory at trial and on appeal was that the evidence was not legally sufficient because viewing the person by cellphone image was different from reviewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was

The CAAF agrees with Army Court of Criminal Appeals that under the facts of this case there was a crime committed and the evidence was legally and factually sufficient to sustain the conviction.

I think the "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. However, keep in mind that making a real time image and later viewing it may also be a crime, just one charged as a different offense under the UCMJ.

Here the accused was charged with an attempt. An attempt happens where there is an intent to commit a crime, some actions have been taken to make that happen, and something interrupts of stops the final actions in committing the crime. (Your military defense counsel should talk to you about the affirmative defense of abandonment to an attempt charge.)

The attempt charge in Mays is valid because the Appellant only stopped, one of the times, because he saw a potential witness and fled the scene. Here the fleeing the scene can be considered as consciousness of guilt.

The CAAF does see that there can be a difference between the in person real-time viewing compared to viewing an image through a cellphone camera. But, for the court that doesn't matter when you look at the definition--a broad definition--of what it means to view something. For example, a person might place a camera / cellphone in the shower unit, record people in the shower, and retrieve the camera to view later. Or what if a person uses a secret camera connected to the wifi and the persons cellphone?

As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39

(1998).

Memo to the field: One last point requires attention. The court points out they are not deciding if viewing a visual image that is not contemporaneously produced can be legally sufficient (or whether it is a different offense, but still an offense). 

Your military defense lawyer should know that there have been cases in the past where the accused was using a camera to record someone in the shower, they have kept the recording, and sometimes shared it with others. For example, in December 2014, 12 Sailors got caught up in a "scandal" about this. See Meghann Myers, 12 Sailors Implicated in a Shower Scandal. Navy Times, 11 December 2014. Of these Salors a number got convicted at court-martial and at least one was sentenced to 10 months in the Brig.

On a different subject but same method, Servicemembers have been prosecuted for using their smartphone to photograph classified materia. See, e.g.,  sailor jailed for taking photos of classified area of a nuclear submarine.

If you find yourself in a similar situation, reach out to the military defense lawyers at Cave & Freeburg, LLP, for experienced advice and represenation.