Military law against non-consensual pornography — a good idea, but needs work
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When it comes to the Navy’s and the Marine’s new interim law on sharing sexually explicit photos of others without their permission, there’s good news and there’s bad news.

The good news is that the two branches have acknowledged, through this law, that service members have a reasonable expectation of privacy when it comes to sexually explicit pictures. It would be hard for them to continue to ignore the problem within their ranks given the Marines United and related scandals that have continued to send shock waves through the military.  

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The bad news is that the law, as it is currently written, is unlikely to be used. Under the interim law, the prosecution will need to prove, through testimony of the victim, that the defendant was either going to profit from the non-consensual photo distribution, or had an intent to harm the victim, or that the defendant had a reckless disregard for the resulting consequences.

 

None of these alternatives make sense, when you consider the point of the law. The new law is to make non-consensual pornography a crime. Yet the drafters have written a law with excuses big enough to sail a ship through. Going through each of the options points out the inadequacy of the law and its inability to cause any serious change within the Navy or Marines.

The first option, to show distribution for personal gain, would require that the victim come up with a receipt or other evidence that the perpetrator benefitted, which usually means money or favors. The difficulty of locating an individual receipt or payment is obvious — few favor-granters or porn distributors issue receipts. The recent "Fat Leonard" bribery scandal involving U.S. Navy Admirals shows that even when the receipts exist it takes a significant sums and scandals to get the attention of the military.

The second option requires showing an intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person. This element option is a head-scratcher — is there a plausible scenario of good intent for the non-consensual pornography? If there was a good reason, the perpetrator would get the consent of the person depicted, which would take us right out of the law.

Even if you accept that an intent element should exist, it is hard to prove. The victim might be an expert on many things, but what was happening in the perpetrator’s mind is not likely to be one of them. This intent option would require the victim to prove with evidence, via electronic records or verbal statements, that this was the purpose of the perpetrator. Unless the victim can provide independent evidence, their word would probably be insufficient.

Just last week, the media reported another Marine and Naval Academy sexual misconduct case where the perpetrator successfully lied for several years about his actions against a victim. Not until a cell phone was found with text messages did the Marine admit to the misconduct and perjury. They did not believe the testimony of the victims. So, let’s not wait for that to happen again.

And the third option — to show that the defendant acted “with reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced” — is equally problematic. Reckless disregard would mean that the victim has to prove that the defendant had conscious contempt of the consequences and pursued the non-consensual pornography distribution while ignoring these harms. Like the intent option, this is difficult to demonstrate and would likely require evidence beyond victim testimony. The easy-out here for defendants is that was “all in good fun” with no idea of the harm caused.

But it’s not necessary to require these forms of proof. The law should presume that non-consensual pornography causes harm; either to the military, a specific group, or the individual. It’s like running a stop light: the intent doesn’t matter. The fact that the stop light law was violated is sufficient to hold the driver responsible, for violation of the law and any consequences that arise from it. The law doesn’t need to consider the mental state of the driver. This idea of strict liability, holding the perpetrator accountable regardless of their intent or knowledge of the consequences, is the right framing of the law.

Remember the purpose of the law, to eliminate non-consensual pornography in the services, needs to be met. The strict liability model will ensure that the practice is discontinued completely. Under a strict liability requirement, the prosecution will not have to find the unlikely evidence of personal gain, nor the malicious intent to cause harm, or even the crystal-ball requirement of reckless disregard. The presumption that non-consensual pornography is harmful to the military function should be built into the preamble of the law.

The Navy and Marines can do better. The current law is a set-up for failure and a guarantee that few victims will come forward. If the Navy and Marines are truly committed to changing the culture and holding perpetrators accountable, then they need to write a law that works.

The law should start with the recognition that the non-consensual distribution of a sexually explicit photo causes harm. Evidence of distribution of non-consensual pornography, regardless of what the perpetrator intended or was aware of, should be enough to find violation of the law. It’s worth it to our country, and the military that protects us, to get this law right.

M.E. Karns MPH JD is a Senior Lecturer in Social Statistics, Cornell University. Karns was Procedural Advocate for the Complainant, Cornell University, 2014-16 and is a 2017 Public Voices Fellow with the OpEd Project. You can find her on Twitter: @MEKarns


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