In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.
The appellant exposed numerous females to digital pictures of his genitals, showing them the pictures on his cell phone in four instances and sending a text message with a picture as an attachment in a fifth instance. For these acts he was convicted of five specifications of indecent exposure; four in violation of the new statute and one in violation of the old statute. He was also convicted of two additional specification of indecent exposure involving a live display of his genitals.
The CCA reverses all five convictions involving digital pictures, concluding that Congress did not intend to criminalize such conduct as an indecent exposure under Article 120. Addressing the current statute, the CCA held that:
After considering the statute as a whole, we conclude Congress did not intend to criminalize an “exposure” through communication technology under Article 120c(c), UCMJ.13 Further, we note that Article 120c, UCMJ, is not silent on the issue of photographing private areas or electronically transmitting images. Congress used clear and unambiguous language to expressly proscribe the making and distributing of indecent visual recordings. See UCMJ art. 120c(a)(2); see also UCMJ art. 120c(c)(5).
Slip op. at 10.
Addressing the former statute, the CCA held that:
[W]hat was exposed or shown was not the statutorily required body parts but instead a picture of those body parts. . . .
In the absence of unambiguous legislative intent or clear precedential legal support to apply an expansive reading to the plain language of Article 120(n), UCMJ, we find the evidence legally insufficient to sustain a conviction for indecent exposure. Under the circumstances, we also find an ambiguity in the Article 120(n), UCMJ, statute as applied to appellant’s case. In accordance with the rule of lenity, we resolve this issue in favor of appellant.
Slip op. at 8.
One judge dissents, however, and would hold that “the definition of expose in Article 120(n), UCMJ, and Article 120c(c), UCMJ, is unambiguous, and appellant’s convictions for indecent exposure in Specification 2 of Charge I and Specifications 1-4 of Charge II should be affirmed on that basis.” Slip op. at 12 (Senior Judge Tozzi, dissenting).