United States v. Mason and United States v. Irvin: impacting military justice practice in child pornography cases

Air Force Law Review, Spring, 2004 by Daniel A. Olson

I. INTRODUCTION

As your installation's Chief of Military Justice, you've just been briefed that an active duty officer has been downloading child pornography from the Internet. (1) You're tasked to draft charges, but haven't kept abreast of recent developments pertinent to child pornography prosecutions. (2) This note will provide guidance to military justice practitioners charging and prosecuting child pornography cases by examining two recent decisions from the Court of Appeals for the Armed Forces: United States v. Mason (3) and United States v. Irvin. (4)

II. LANDSCAPE

Federal law has long criminalized the production and distribution of child pornography. (5) Historically, however, these prohibitions have applied only to pornographic images involving actual children. (6) By 1996, however, developments in computer technology had enabled child pornographers to circumvent federal anti-child pornography legislation by creating sexually explicit visual depictions of children without using any actual children in the production process. (7) For example, child pornographers learned to create computer-generated images of children that were essentially indistinguishable from pictures of actual children. (8) Child pornographers also learned to use inexpensive computer software to manipulate ("morph") innocent pictures of children into sexually explicit images. (9) To combat child pornographers' newly developed abilities to produce computer-generated ("virtual") child pornography, Congress passed the Child Pornography Prevention Act of 1996 (hereinafter referred to as the "CPPA"), criminalizing the receipt or distribution of such images by re-defining "child pornography" in the broadest possible terms. (l0) Specifically, to achieve its purpose of proscribing virtual child pornography, Congress defined "child pornography" as follows:

   "Child pornography" means any visual depiction,
   including any photograph, film, video picture, or
   computer or computer generated image or picture,
   whether made or produced by electronic, mechanical, or
   other means, of sexually explicit conduct where: (A) the
   production of such visual depiction involves the use of a
   minor engaging in sexually explicit conduct; (B) such
   visual depiction is, or appears to be, of a minor engaging
   in sexually explicit conduct; (C) such visual depiction
   has been created, adapted, or modified to appear that an
   identifiable minor is engaging in sexually explicit
   conduct; or, (D) such visual depiction is advertised,
   promoted, presented, described, or distributed in such a
   manner that conveys the impression that the material is
   or contains a visual depiction of a minor engaging in
   sexually explicit conduct. (11)

Congress' statutory definition of child pornography, however, was soon challenged by a trade association for the adult entertainment industry. (12) In particular, the trade association argued that the statutory definition of "child pornography" was unconstitutionally overbroad because it proscribed images that merely "appear[ed]" to involve children and merely "convey[ed] the impression" of involving children. (13) In its landmark decision in Free Speech Coalition, the United States Supreme Court agreed. (14) While acknowledging the horrors of child sexual abuse, the Court concluded that Congress had improperly abridged a "substantial amount of lawful speech." (15) Thus, the Court found the definitions of "child pornography" at 18 U.S.C. [section] 2256(8)(B) and (D) to be overbroad and unconstitutional. (16)

The Supreme Court's decision in Free Speech Coalition was not without impact on the military services. (17) Indeed, general courts-martial had convicted and sentenced service members for violating the CPPA before the Supreme Court's decision in Free Speech Coalition rendered some of the CPPA's definitions invalid. (18) Accordingly, military courts have had to consider the impact of Free Speech Coalition on these convictions. (19) This note seeks to examine two such cases recently decided by the Court of Appeals for the Armed Forces. (20)

III. UNITED STATES. V. MASON

In 1998, investigation revealed that the accused, a contracting officer assigned to the Defense Supply Center Columbus, had visited inappropriate websites on government computers. (21) More specifically, the accused had used government computers to view pornographic images on the Internet, engage in suggestive discussions in teen chat rooms, and receive images of child pornography. (22)

The accused was subsequently charged under Article 92 of the Uniform Code of Military Justice (hereinafter referred to as the "UCMJ") with three specifications of violating a general regulation pertaining to use of government computers. (23) He was also charged under Article 133 with one specification of conduct unbecoming an officer and a gentleman. (24) Finally, he was charged under clause 3 of Article 134. (25) More specifically, he was charged with one specification of violating the CPPA. (26) Notably, the third charge and specification involved a set of images specifically characterized as "child pornography," as distinct from the images referred to in the Article 133 charge. (27) The accused entered pleas of guilty and was convicted by a general court-martial. (28) That is, he was convicted of violating a lawful general order in violation of Article 92, of engaging in conduct unbecoming an officer and a gentleman in violation of Article 133, and of knowingly receiving child pornography in violation of Article 134. (29)