UCMJ Article 117a: Wrongful Broadcast or Distribution of Intimate Visual Images

Article 117a punishes knowingly sharing an intimate image of an identifiable adult who did not explicitly consent to the sharing, when the sharer knew or should have known that the person expected privacy and that the sharing was likely to cause harm. It does not matter how the image was made. The conduct must also have a “reasonably direct and palpable connection” to a military mission or environment. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 2 years.

The six elements

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 55a.b, follows 10 U.S.C. § 917a(a):

1. The accused knowingly and wrongfully broadcast or distributed a visual image.
2. The image is an intimate visual image of another person, or a visual image of sexually explicit conduct involving another person.
3. The person depicted was at least 18 when the image was created, is identifiable from the image or from information displayed with it, and did not explicitly consent to the broadcast or distribution.
4. The accused knew or reasonably should have known the image was made under circumstances in which the person retained a reasonable expectation of privacy regarding any broadcast or distribution.
5. The accused knew or reasonably should have known the sharing was likely to cause harm, harassment, intimidation, emotional distress, or financial loss to the person, or to harm the person substantially with respect to health, safety, business, calling, career, financial condition, reputation, or personal relationships.
6. The conduct had a reasonably direct and palpable connection to a military mission or military environment.

The article was added to the UCMJ by the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91, § 533), enacted December 12, 2017; its Part IV paragraph was added to the Manual in 2022.

Definitions

Section 917a(b) defines the key terms:

• Broadcast: electronically transmitting a visual image with the intent that it be viewed by a person or persons.
• Distribute: delivering to the actual or constructive possession of another person, including by mail or electronic means.
• Intimate visual image: an image depicting a private area, meaning the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.
• Reasonable expectation of privacy: circumstances in which a reasonable person would believe that a private area, or sexually explicit conduct, would not be visible to the public. Under ¶ 55a.c(2), it is determined from the totality of the circumstances.
• Visual image: photographs, film, and video, including digital images “made by any means,” streamed content even if not stored, and electronic data capable of conversion into an image.

The military connection requirement

Element 6 is what brings the conduct under the UCMJ. Under ¶ 55a.c(3), the connection “is contextually oriented and cannot be evidenced by conduct that is connected only in a remote or indirect sense.” The conduct “must have a measurably divisive effect on unit or organization discipline, morale, or cohesion, or must be clearly detrimental to the authority or stature of or respect toward a Servicemember.” A connection that is only remote or indirect does not satisfy the element, so the government has to show an actual effect of that kind, not merely that the people involved were in the military.

What is not wrongful

“Wrongful” means without legal justification or excuse. The paragraph does not apply to an image whose disclosure is “in the bona fide public interest,” and it does not prohibit lawful law enforcement, correctional, or intelligence activity, the reporting of unlawful activity, or use under a subpoena or court order in a legal proceeding (¶ 55a.c(1)).

Maximum punishment: 2 years

Under ¶ 55a.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Because section 917a appears in the covered-offense list of 10 U.S.C. § 801(17)(A), an Article 117a allegation arising after December 27, 2023 goes to a special trial counsel, who alone decides whether it is covered and, if so, whether to refer it, dismiss it, or agree to a plea (10 U.S.C. § 824a(c)).

Article 117a or Article 120c

The two articles divide by how the image was made. Article 120c covers secretly viewing or recording another person’s private area without consent, and broadcasting or distributing a recording the accused knew or should have known was made that way; its distribution offense carries 7 years. Article 117a looks at whether the depicted person explicitly consented to the sharing itself, so it reaches an image that was taken with the person’s agreement and later passed on without it. An image of a person under 18 is outside Article 117a; child pornography is a separate Article 134 offense, and sexual offenses against children fall under Article 120b.

Sources

• 10 U.S.C. § 917a, Article 117a, Wrongful broadcast or distribution of intimate visual images (Cornell LII)
• 10 U.S.C. § 801, Article 1, Definitions, paragraph (17) (Cornell LII)
• 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 55a; Appendix 17, analysis of ¶ 55a

General information about military law, not legal advice for any individual case.