An interim revision to Navy regulations prohibits Navy and Marine Corps personnel from posting intimate photos “if the person making the distribution or broadcast does so without legal justification or excuse,” the regulation reads.
The statute details three conditions that will be considered a violation of Navy regulations, including if images are broadcast or transmitted: “with the intent to realize personal gain; with the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or with reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced,” the regs read.
The new regs, which were signed off by Acting Navy Secretary Sean Stackley, go into effect immediately. It is characterized as interim until the next edition of Navy regulations is printed.
The changes were made public Tuesday in an all-Navy message, a move that some experts think will be hard-pressed to defend in court. Changing Navy regulations is a bit of an end-around for making changes to the Uniform Code of Military Justice, which would require an act of Congress.
In this case, detailing expectations of Department of the Navy personnel amounts to a lawful order, which can be enforced with the full weight of the justice system, from non-judicial punishment to general court martial. Sailors and Marines who run afoul of the new regs could be charged with an Article 92, failure to obey a lawful order, the Navy's chief spokesperson confirmed in a statement.
"The addition of Article 1168 'Nonconsensual distribution or broadcasting of an image' to Navy Regulations serves to underscore leadership's commitment to eliminating degrading behaviors that erode trust and weaken the Navy and Marine Corps Team," said Rear Adm. Dawn Cutler in statement Wednesday evening. "It provides commanders another tool to maintain good order and discipline by holding Sailors and Marines accountable for inappropriate conduct in the nonconsensual sharing of intimate imagery.
"This article adds the potential charge of Article 92 'Failure to obey [an] order or regulation' to the possible charges that can be used against an alleged perpetrator. Each case of alleged misconduct will be evaluated on its own facts and circumstances."
The regs now define an “intimate image” as “any visual depiction, including by electronic means, that includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction; depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and taken under circumstances in which the person depicted had a reasonable expectation of privacy.”
Much of the language in the new regs would be very difficult to prove in court, said Brian Bouffard, a former Navy JAG and now private defense attorney.
As an example, Bouffard pointed to the “reckless disregard” language, which stipulates that if you just don’t care that someone might be “humiliated, harmed, intimidated, threatened, or coerced,” you can be punished. That language is a clear reaction to the photo-swapping that was going on in the Marines United Facebook page, as well as on other message boards throughout seedy corners of the internet.
“But if you don’t know a person, how could you know that about them?” Bouffard said. "Ultimately prosecuting these types of cases will probably require a witness to testify that they were either humiliated or harmed, etc., for the government to make an effective case."
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UNCLASSIFIED ROUTINE R 181436Z APR 17 FM SECNAV WASHINGTON DC TO ALNAV INFO SECNAV WASHINGTON DC CNO WASHINGTON DC CMC WASHINGTON DC BT UNCLAS ALNAV 021/17 MSGID/GENADMIN/SECNAV WASHINGTON DC/-/APR// SUBJ/U.S. NAVY REGULATIONS, 1990 INTERIM CHANGE// REF/A/DOC/SECNAV/16SEP90// NARR/REF A IS THE U.S. NAVY REGULATIONS.// POC/W. RECORD/CAPT/JAGC/USN/OJAG (CODE 20)/-/LOC: 1254 CHARLES MORRIS STREET, SE, WASHINGTON NAVY YARD, DC/-/EMAIL: WARREN.RECORD @NAVY.MIL/-/TEL: (202) 685-7057, DSN 325-7057// W. PIGOTT/COL/USMC/JAD/-/LOC: 3000 MARINE CORPS PENTAGON, RM 4D557, WASHINGTON DC/-/EMAIL: WILLIAM.N.PIGOTT@USMC.MIL/-/TEL: (703) 693-9304, DSN 223-9304// RMKS/1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV. 2. Article 1168 of reference (a) is added to read as follows: a. 1168. Nonconsensual distribution or broadcasting of an image (1) The wrongful distribution or broadcasting of an intimate image is prohibited. (2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast: (a) With the intent to realize personal gain; (b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or (c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced. 3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means. 4. "Broadcasting" means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons. 5. An intimate image is any visual depiction, including by electronic means, that: a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction; b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy. 6. "Sexually explicit conduct" is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition). 7. "Private area" is defined in Part IV, paragraph 45c, Manual for Courts- Martial (2016 Edition). 8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a). 9. This interim change will be incorporated into the next printed revision of reference (a). 10. Released by Sean J. Stackley, Acting Secretary of the Navy.// BT #0001 NNNN UNCLASSIFIED//