SEYMOUR JOHNSON AIR FORCE BASE, N.C. -- In December 2011, the President signed legislation and an executive order increasing the punishments for service members found guilty of child pornography charges, and providing greater protection for victims of sexual assault under the Uniform Code of Military Justice.

"By incorporating these changes, Congress and the President are making it known they will no longer tolerate certain behavior from members of the armed forces," said 1st Lt. Nicole Vele, 4th Fighter Wing chief of civil law. "Actions that were not as severely punished in the past will now be dealt with in our courts the way they have been dealt with in State courts for years."

Each Airman is subject to the UCMJ, so when there are changes implemented it is imperative everyone familiarize themselves with them.

"Ignorance of the law is not a defense," Vele said. "So, if you are engaging in this type of behavior, stop. If you don't stop, and you are caught, you will be punished; and at some point, you will be caught."

Child pornography

There are three main changes to the UCMJ involving child pornography as a result of Executive Order 13593. First, EO 13593 added a specific Article 134 provision for child pornography.

"This is particularly helpful for us because we no longer have to use a separate federal statute for charging offenses," Vele said. "Especially since the federal statute contained language that required proof the child depicted in the pornography was actually a minor. This is extremely expensive to do because it is difficult and (may be) impossible to track down the actual children involved in these offenses. So, in order for the government to prove its case against the accused, the use of experts was required."

This leads to the second EO 13593 change, which is the incorporation of language that doesn't require the government to prove the actual age of the child depicted in the pornography. The UCMJ now states, "An accused may be convicted of possessing, receiving, viewing, distributing or producing child pornography if he was aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct."

The final change to the UCMJ under EO 13593 increased the maximum allowable punishment for child pornography offenses. Under the old guidance, the maximum allowable punishment for possession and distribution of child pornography was 10 years, unless there was a prior conviction, and then the maximum sentence was 20 years. Under the new Article 134 provision, the maximum punishments are as follows:
· Possessing, receiving or viewing child pornography -- dishonorable discharge, forfeiture of all pay and allowances and confinement for 10 years.
· Possessing child pornography with intent to distribute -- dishonorable discharge, forfeiture of all pay and allowances and confinement for 15 years.
· Distributing child pornography -- dishonorable discharge, forfeiture of all pay and allowances and confinement for 20 years.
· Producing child pornography -- dishonorable discharge, forfeiture of all pay and allowances and confinement for 30 years.

Victim advocate - Victim privilege

Additional provisions under EO 13593 increase protections afforded to victims of a sexual assault or violent offense.

"This rule gives the victim the privilege to refuse to disclose, and prevent any other person from disclosing, confidential communication made between the victim and a victim advocate, so long as the communication was made for the purpose of facilitating advice or supportive assistance to the victim," Vele said.

The National Defense Authorization Act of 2012 also affords additional protections to victims that are separate from the UCMJ changes.

"The NDAA provides victims of sexual assault with the ability to request a permanent change of station move from their commander, which must be reviewed within 72 hours," Vele said. "This change also provides the victim with the right to have a legal assistance attorney regardless of whether they are using restricted or unrestricted reporting. It requires the retention of certain evidence and records related to sexual assault and that base legal offices provide a copy of the record of trial free of charge, to a victim who testifies at trial. While some of these changes have already gone into effect, others will be effective in June."

The coming changes are meant to encourage sexual assault reporting, so advice and supportive assistance may be given to the victim.

"Such 'supportive assistance' would be assistance given by the sexual assault response coordinator, their assistant, the Family Advocacy Program or a victim advocate," said Staff Sgt. Lori Manvell, 4th FW NCO in charge of military justice. "This new privilege is meant to give the victim confidence that the information they give to someone assisting them, will be kept confidential unless they choose to reveal it or decide to allow the assistor to reveal it for them."

Victims should keep in mind that any information shared with family, friends or coworkers is not covered by this privilege.

"The attorney-client privilege is extended to victims who wish legal assistance on the matter," Manvell said. "An attorney is the best person to give a victim guidance on how the military justice system works. In the past, if a victim decided to pursue formal charges, an official investigation would immediately ensue and once charges were officially established against an alleged accused, the accused's defense counsel would have the right to view the information in the victim's assistance files. Now, that information cannot be obtained without the express permission of the victim."

These changes give victims additional protections that may encourage an increased reporting of sexual assaults.

"Even if the victim decides not to pursue formal charges against the perpetrator, they can feel more confident in their ability to seek confidential treatment," Vele said. "These changes also provide victims with the potential to permanently separate themselves from a known offender by affording them the ability to PCS. This provision is not a guarantee, but it at least requires their commander review the request."

In summary, these changes allow victims to seek assistance from supportive agencies and legal advice from a judge advocate without fear of their information being disclosed once formal charges are filed.

"These changes should allow Airmen to feel a sense of security in the supportive agencies that offer services to Airmen," Manvell said. "A victim must take note that while this privilege exists for them, should they decide to pursue formal charges, it may be extremely difficult to prosecute a case against the alleged perpetrator without all of the information provided by the victim to the supportive agency. A victim should seek confidential legal assistance before pursuing charges to clarify their rights and the court-martial process."

For more information about these UCMJ changes, contact the legal office at (919) 722-5322.