Page 619 - Trump Executive Orders 2017-2021

10322 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

prosecution of other federal and state law child pornography and obscenity offenses which may be
amenable to courts-martial via Article 134 clauses 2 and 3.
(2) Federal "Child pornography" and "Obscenity" offenses. Practitioners are advised that the
Title 18, United States Code, criminalizes the production, distribution, possession with intent to
distribute, possession, and receipt of sexually explicit images of actual children under the age of
18. See 18 U.S.C. §§ 2251; 2252A. Practitioners may charge these offenses utilizing Article 134,
clause 3 (crimes and offenses not capital). Practitioners are further advised that Title 18 United
States Code, Chapter 71, criminalizes the production of"obscene images," that is, visual depictions
of any kind, including a drawing, cartoon, sculpture, or painting. Such images are considered
obscene under federal law when they depict minors involved in sexually explicit activity, and/or
engaging in bestiality, sadistic or masochistic abuse. See 18 U.S.C. § 1466A. These federal
obscenity offenses may likewise be prosecuted at courts-martial via Article 134, clause 3.
(3) State "child pornography'' and "obscenity'' qffen.s·es. If a Servicemember violates an
applicable state child pornography or obscenity statute within the jurisdiction of a given state, the
substance of that state child pornography and obscenity law may be charged via Article 134, clause
2 as conduct "of a nature to bring discredit upon the armed forces." When so charged, the Article
134 charge should recite every applicable element under the state statute. The maximum
punishment for such offenses is the applicable maximum punishment prescribed for such an
offense under state law.
(4) "Child pornography" means material that contains either an obscene visual depiction of a
minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in
sexually explicit conduct.
(5) An accused may not be convicted of possessing, receiving, viewing, distributing, or
producing child pornography if he was not aware that the images were of minors, or what appeared
to be minors, engaged in sexually explicit conduct. Awareness may be inferred from circumstantial
evidence such as the name of a computer tile or folder, the name of the host website from which a
visual depiction was viewed or received, search tenns used, and the number of images possessed.
(6) "Distributing" means delivering to the actual or constmctive possession of another.
(7) "Minor" means any person under the age of 18 years.
(8) "Possessing" means exercising control of something. Possession may be direct physical
custody like holding an item in one's hand, or it may be constmctive, as in the case of a person
who hides something in a locker or a car to which that person may return to retrieve it. Possession
must be knowing and conscious. Possession inherently includes the power or authority to preclude
control by others. It is possible for more than one person to possess an item simultaneously, as
when several people share control over an item.
(9) "Producing" means creating or manufacturing. As used in this paragraph, it refers to
making child pornography that did not previously exist. It does not include reproducing or
copymg.
(10) "Sexually explicit conduct" means actual or simulated:
(a) sexual intercourse or sodomy, including genital to genital, oral to genital, anal to genital,
or oral to anal, whether between persons of the same or opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic area of any person.
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