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Q. What kind of trouble can a service member get into for sexting?
A. Sexting is not just a technologically savvy way to flirt — in the military, it can be a crime.
In U.S. v. Zachary N. Capps (2013), the Air Force Court of Criminal Appeals defined sexting as “the exchange of sexually explicit text messages, including photographs, via cellphone.”
Sexting can lead to a host of Uniform Code of Military Justice violations. For starters, if service members engage in sexting on a government-issued mobile device, they could be committing failure to obey a lawful general regulation in violation of Article 92.
Regulations detail how government communications should and should not be used. In U.S. v.William C. Gurney (2013), the Air Force Court of Criminal Appeals found that flirtatious and sexual emails, phone calls and text messages were not an approved and authorized use of government communications systems.
In U.S. v. Bryan A. Ralls (2013), the Navy-Marine Corps Court of Criminal Appeals found a Marine Corps sergeant also violated Article 92 by “exchanging sexually explicitpictures and text messages with a former recruit fresh out of boot camp” because such conduct was “clearly ‘of a nature to be service discrediting’ as defined by Navy Regulation 1165.”
Without question, sexting with a minor can result in a charge of online sexual exploitation of a minor, indecent language or exposure, or possibly manufacturing and/or distributing child pornography in violation of Article 134 or any applicable federal statute. It’s also common for text messages to be used as evidence to help the government prove adultery and fraternization.
In the Gurney case, the Air Force Court of Criminal Appeals found that a chief master sergeant committed maltreatment in violation of Article 93 by pursuing a sexual relationship with a female senior airman and sending seminude pictures of himself to her. (Sexual harassment of a subordinate can constitute maltreatment).
The court found that given the chief master sergeant’s position of authority, the fact that the subordinate also engaged in sexting by sending him seminude images of herself did not matter.
Service members who end up facing charges because of their sexting activities should immediately contact a military law attorney. Depending on the circumstances, an attorney could, among other things, attempt to prevent the text messages from being admitted as evidence, or show the texting was consensual.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.tullylegal.com/washington-dc/). Email questions to firstname.lastname@example.org. The information in this column is not intended as legal advice.