Court of Appeals for the Armed Forces

United States v. Mays

The Appellant was twice seen holding a cellphone over a shower stall in the SLU while a male was showering. He was charged with attempted wrongful, knowing, nonconsensual view of a person's private area, where there was an expectation of privacy. No-one could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone.

The Appellant's theory at trial and on appeal was the lack of legal sufficiency because viewing the person by cellphone image was different from viewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was

WHETHER THE OFFENSE OF INDECENT VIEWING UNDER UCMJ ART. 120C INCLUDES VIEWING OF A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER?

The CAAF agrees with ACCA. The "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. The attempt charge is valid because the Appellant only stopped one of the times because he saw a potential witness and fled the scene--some consciousness of guilt there.

ACCA opinion.

We acknowledge that a distinction can be drawn between the private area of a person and a visual image of the private area of person. But that is not the question in this case. The question in this case is whether the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, is broad enough to cover both viewing the private area and viewing a contemporaneously produced visual image of the private area of a person. For the reasons explained above, we have concluded that it is.

Memo to the field:

One last point requires attention. Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of
attempted indecent viewing in this case, we do not hold or imply that any viewing of images of another person’s private parts violates Article 120c(a)(1), UCMJ. We leave the question of whether Article 120c(a)(1), UCMJ, prohibits viewing a visual image that is not contemporaneously produced for another case.

As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39 (1998).