This We’ll Defend: Expanding UCMJ Article 2 Subject Matter Jurisdiction as a Response to Nonconsensual Distribution of Illicit Photographs

Abstract

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent. Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, or National Guardsman at the time of the crime determines which remaining punitive remedies are available to the victim, if any. Under the current legal framework, two recent developments in U.S. military policy risk opening female service members to additional exposure. First, in 2015, the Department of Defense opened all combat roles to women. Second, and concurrently, the Department began downscaling the military to a smaller, more flexible force increasingly supplemented by its reserve and National Guard (non-active-duty) forces. In light of these developments, the current state of the law poses an unacceptable risk that the growing number of female service members will be subjected to the dual horrors of seeing lewd photos of themselves plastered across the internet, and of seeing the perpetrator walk freely. This Note argues for expanding Article 2 subject matter jurisdiction of the Uniform Code of Military Justice to include all currently contracted members of the U.S. military—active duty, reservist, and guard—in order to bring peace of mind to those female service members willing to fight for peace abroad.