NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) Indecent viewing: DD, TF, 1 year, E-1. (Category 1)
(2) Indecent recording: DD, TF, 5 years, E-1. (Category 2)
(3) Broadcasting or distribution of an indecent recording: DD, TF, 7 years, E-1. (Category 2)
NOTE 2: Effective 28 July 2023, EO 14103 added the words “without legal justification or lawful authorization” to the Sample Specifications and Elements of these offenses.
b. SAMPLE SPECIFICATION:
Indecent Viewing:
In that _________ (personal jurisdiction data), did (at/on board—location), on or about _________, without legal justification or lawful authorization, knowingly (and wrongfully) view the private area of __________, without (his) (her) consent and under circumstances in which (he) (she) had a reasonable expectation of privacy.
Indecent Recording:
In that ________ (personal jurisdiction data), did (at/on board—location), on or about _________, without legal justification or lawful authorization, knowingly (photograph) (videotape) (film) (make a recording of) the private area of __________, without (his) (her) consent and under circumstances in which (he) (she) had a reasonable expectation of privacy.
Broadcasting or Distributing an Indecent Recording:
In that _________ (personal jurisdiction data), did (at/on board—location), on or about _________, without legal justification or lawful authorization knowingly (broadcast) (distribute) a recording of the private area of __________, when the said accused knew or reasonably should have known that the said recording was made without the consent of _____________ and under circumstances in which (he) (she) had a reasonable expectation of privacy.
c. ELEMENTS:
Viewing:
(1) That (state the time and place alleged), the accused, without legal justification or lawful authorization, knowingly (and wrongfully) viewed the private area of (state the name of the alleged victim);
(2) That the accused did so without the consent of (state the name of the alleged victim); and
(3) That said viewing took place under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy.
Recording:
(1) That (state the time and place alleged), the accused, without legal justification or lawful authorization, knowingly (photographed) (videotaped) (filmed) (made a recording of) the private area of (state the name of the alleged victim);
(2) That the accused did so without the consent of (state the name of the alleged victim); and
(3) That said recording was made under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy.
Broadcasting or Distributing of an Indecent Recording:
(1) That (state the time and place alleged), the accused, without legal justification or lawful authorization, knowingly (broadcast) (distributed) a recording of the private area of (state the name of the alleged victim);
(2) That the recording was made without the consent of (state the name of the alleged victim);
(3) That the accused knew or reasonably should have known that the recording was made without the consent of (state the name of the alleged victim);
(4) That the recording was made under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy; and
(5) That the accused knew or reasonably should have known that the recording was made under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
(“Wrongful” means without legal justification or lawful authorization.)
An act is done “knowingly” when it is done intentionally and on purpose. An act done as the result of a mistake or accident is not done “knowingly.”
“Private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.
“Under circumstances in which that other person has a reasonable expectation of privacy” or “reasonable expectation of privacy” means:
(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or
(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.
(“Broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons.)
(“Distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means.)
(A “recording” is a still or moving visual image captured or recorded by any means.)
NOTE 3: Mistake of fact as to consent. When the accused is charged with indecent viewing or recording, and the evidence has reasonably raised mistake of fact as to consent, include the following instruction on honest and reasonable mistake of fact as to consent. If instructing on an attempted offense, only the honest mistake of fact instruction should be given.
The evidence has raised the issue of mistake on the part of the accused whether (state the name of the alleged victim) consented to the conduct concerning the offense(s) of indecent (viewing) (visual recording), as alleged in (the) Specification(s) (___) of (the) (Additional) Charge (___).
Mistake of fact as to consent is a defense to (that) (those) charged offense(s). “Mistake of fact as to consent” means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person consented to the (viewing) (photographing) (videotaping) (filming) (visual recording). The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, that would indicate to a reasonable person that the other person consented. (Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. “Negligence” is the absence of due care. “Due care” is what a reasonably careful person would do under the same or similar circumstances.)
The prosecution has the burden of proving beyond a reasonable doubt that the mistake of fact as to consent did not exist. If you are convinced beyond a reasonable doubt, at the time of the charged offense(s), the accused was not under a mistaken belief that the alleged victim consented to the (viewing) (photographing) (videotaping) (filming) (visual recording), the defense does not exist. Even if you conclude the accused was under a mistaken belief that the alleged victim consented to the (viewing) (photographing) (videotaping) (filming) (visual recording), if you are convinced beyond a reasonable doubt that at the time of the charged offense(s), the accused’s mistake was unreasonable, the defense does not exist.
NOTE 4: Voluntary intoxication and mistake of fact as to consent. If there is evidence of the accused’s voluntary intoxication, the following instruction is appropriate:
There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense(s). On the question of whether the accused’s mistaken belief, if any, was reasonable, you may not consider the accused’s intoxication because a reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.
NOTE 5: Voluntary intoxication and “knew or reasonably should have known.” When the accused is charged with broadcasting or distributing an indecent visual recording, and there is evidence that the accused was intoxicated, the following instructionmay be appropriate with respect to whether the accused “knew or reasonably should have known” the circumstances under which the recording was made.
The evidence has raised the issue of voluntary intoxication in relation to the offense(s) of (state the alleged offense(s)). With respect to (that) (those) offense(s), I advised you earlier that the government is required to prove that the accused knew or reasonably should have known that the recording was made without the consent of (state the name of the alleged victim), and that the accused knew or reasonably should have known that the recording was made under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy.
In deciding whether the accused had such knowledge, you should consider the evidence of voluntary intoxication.
The law recognizes that a person’s ordinary thought process may be materially affected when (he) (she) is under the influence of intoxicants. Thus, evidence that the accused was intoxicated may, either alone or together with other evidence in the case, cause you to have a reasonable doubt that the accused had the required knowledge.
On the other hand, the fact that the accused may have been intoxicated at the time of the offense(s) does not necessarily indicate that (he) (she) was unable to have the required knowledge because a person may be drunk yet still be aware at that time of (his) (her) actions and their probable results.
In deciding whether the accused had the required knowledge, you should consider the effect of intoxication, if any, as well as the other evidence in the case.
The burden of proof is on the prosecution to establish the guilt of the accused. If you are convinced beyond a reasonable doubt that the accused in fact had the required knowledge, the accused will not avoid criminal responsibility because of voluntary intoxication.
However, on the question of whether the accused “reasonably should have known” that the recording was made without the consent of (state the name of the alleged victim), and the question of whether the accused “reasonably should have known” that the recording was made under circumstances in which (state the name of the alleged victim) had a reasonable expectation of privacy, you may not consider the accused’s intoxication, if any, because what a person reasonably should have known refers to what an ordinary, prudent, sober adult would have reasonably known under the circumstances of this case.
In summary, voluntary intoxication should be considered in determining whether the accused had actual knowledge that the recording was made without the consent of (state the name of the alleged victim), and under circumstances in which (state the name of alleged victim) had a reasonable expectation of privacy. Voluntary intoxication should not be considered in determining whether the accused “reasonably should have known” that the recording was made without the consent of (state the name of the alleged victim), and under circumstances in which (state the name of alleged victim) had a reasonable expectation of privacy.