UCMJ Article 120a: Mails: Deposit of Obscene Matter

Article 120a punishes knowingly and wrongfully depositing obscene matter in the mail. The maximum is a dishonorable discharge, forfeiture of all pay and allowances, and 3 years of confinement. Despite its narrow subject, it is listed among the “covered offenses” handled by special trial counsel for offenses committed after December 27, 2023.

The statute and its elements

Any person subject to this chapter who, wrongfully and knowingly, deposits obscene matter for mailing and delivery shall be punished as a court-martial may direct.

Source: 10 U.S.C. § 920a.

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 61.b, lists three elements: the accused deposited, or caused to be deposited, certain matter in the mails for mailing and delivery; the act was done wrongfully and knowingly; and the matter was obscene. Causing someone else to mail it is enough.

What “obscene” and “knowingly” mean here

The Manual’s explanation (¶ 61.c) is short and specific:

• Whether something is obscene “is a question of fact” for the factfinder.
• “Obscene is synonymous with indecent,” as the Manual defines indecent for Article 134 indecent conduct (¶ 104.c): “that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”
• The matter “must violate community standards of decency or obscenity and must go beyond customary limits of expression.”
• “Knowingly” means the accused deposited the material “with knowledge of its nature.” The accused does not have to have concluded that it was legally obscene.
• The deposit is wrongful if done “without legal justification or authorization.”

The Manual’s analysis of this paragraph refers to the Supreme Court’s 1973 obscenity decision reported at 413 U.S. 15 for a discussion of the standard. Because obscenity is the element that separates protected expression from this offense, whether the material is obscene at all is the threshold question.

Where the offense came from

Before January 1, 2019, mailing obscene matter was an enumerated Article 134 offense, which required proof that the conduct was prejudicial to good order and discipline or service-discrediting. The Military Justice Act of 2016 (Pub. L. 114-328, § 5431) moved it to Article 120a and removed that requirement (MCM 2024, Appendix 17, analysis of ¶ 61). Before 2019, “Article 120a” was the number for stalking, which is now Article 130.

Article 120a maximum: 3 years

Under ¶ 61.d, the maximum is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

A covered offense despite its narrow subject

Section 920a is on the list of covered offenses in 10 U.S.C. § 801(17)(A). For an offense committed after December 27, 2023, the decision whether it is covered, and then whether to refer, dismiss, or reach a plea agreement, rests with a special trial counsel alone (10 U.S.C. § 824a(c)). Where the matter involves a child under 16, the offense is also a “child abuse offense” for the statute of limitations, allowing charges during the life of the child or within 10 years, whichever is longer (10 U.S.C. § 843(b)(2)).

Electronic messages, indecent language, and recordings

The statute addresses depositing matter “for mailing and delivery.” Sending indecent communications to a child by electronic means is addressed by the lewd-act definition in Article 120b. Indecent language to an adult is an enumerated Article 134 indecent language offense. Recording or distributing images of another person’s private area without consent falls under Article 120c.

Sources

• 10 U.S.C. § 920a, Article 120a, Mails: deposit of obscene matter (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)
• 10 U.S.C. § 843, Article 43, Statute of limitations (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 61 and ¶ 104.c; Appendix 17, analysis of ¶ 61

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