NO. 201900175, (N-M. Ct. Crim. App. Dec 11, 2020) (unpub. opinion)
On December 11, 2020, the Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence of Appellant Vincent D. Taman. Appellant was convicted, contrary to pleas, by a general court-martial consisting of officer and enlisted members, of one charge of knowingly and wrongfully receiving and viewing child pornography and an additional charge of soliciting and advising the production of child pornography, both in violation of Article 134, Uniform Code of Military Justice (UCMJ). The convening authority approved the sentence consisting of confinement for six months and a bad-conduct discharge.
Editor's Note: Why no initials for the victim in this case?
Two years after Appellant initially meeting the victim, Ms. Wilson, in their high school JROTC, the two began an online relationship which was known to others in the high school. During and after high school, Appellant had a popular reputation. At the start of the relationship, Appellant was twenty years old, in the Marine Corps, and stationed in Okinawa, Japan, while Ms. Wilson was a sixteen-year-old high school student living in the continental United States and daughter of a Servicemember. Occurring over more than one online platform, the two conversed and she later testified that while she did not want to do so, Appellant requested nude pictures, which later led to sexually explicit videos and other pictures of her body. Ms. Wilson further testified that Appellant would direct her how to angle and light the photos for the best visibility. With the time difference between the two and the amount of requests Appellant sent to Ms. Wilson, these actions affected her at school and eventually at home when she was caught in a sexually explicit manner by her father, who later reported this conduct to his command and local civilian law enforcement (as his daughter was indeed a minor).
1. Standard of Review
Appellant claims that Article 134, UCMJ, as applied to his case is unconstitutional as it would violate his free speech and privacy rights. The NMCCA could not cite to the trial transcript of any defense objection on the grounds of free speech nor privacy. The first time Appellant argued this was on appeal, and therefore the Court reviewed his assignment of error in regards to Article 66(c) as plain error. Plain error review may only grant relief where, “1) there was error, 2) the error was plain and obvious, and 3) the error materially prejudiced a substantial right of an accused.” Article 134, UCMJ, is a facially constitutional criminal statute, so “Appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed.”
2. Free Speech Violation
Child pornography is not protected by the first amendment. Appellant argued that his “long-distance relationship” with a sixteen year old girl he participated in JROTC with was consensual and therefore all the internet communication and acts stemming from that relationship would be protected, even as she was a minor being asked to send nude and sexually explicit photos and videos to him via cellular apps. NMCCA rejected this notion and affirmed that she was a minor for the purposes of the child pornography statute and the First Amendment does not protect this speech. Obscenity is “utterly without redeeming social importance,” and child pornography specifically is a class of speech that is unprotected as a means to “prevent the sexual exploitation and abuse of children” which is “harmful to the physiological, emotional, and mental health of the child.” The government interest in protecting children from sexual exploitation and distribution of child pornography is paramount. The Court further held that lawful consent to sexual acts do not immunize an adult for criminal liability of documenting the sex act which creates child pornography. The federal law for consent is the age of eighteen, and here Ms. Wilson had only been sixteen, making her a minor for this case.
3. Privacy Violation
Appellant further argues that his right to privacy in the photos was violated. While he relied
on Lawrence v. Texas, which dealt with consensual sex of adults of the same sex, here, the NMCCA finds that unpersuasive: Ms. Wilson was sixteen years old and not an adult. NMCCA held that Federal, State, and Service courts of criminal appeal “have rejected assertions that Lawrence extends privacy protection to criminal images of minors that arose from consensual sex acts.” Ms. Wilson was sixteen years old and the relationship was a farce, if anything, based on the facts of the case; regardless of their relationship status, Appellant still solicited, advised, and received pictures consistent with and in violation of the child pornography laws.
The NMCCA affirmed Appellant’s convictions due to the lack of prejudicial error; his constitutional rights to free speech and privacy were not violated. The NMCCA affirmed Appellant’s sentence.
 The convening authority disapproved the reprimand adjudged by the members.
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