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Military Lawyer’s Thoughts of Marines United Scandal and Online Misconduct by Members of the Military

The “Marines United” scandal is quickly turning into a media circus and is a black eye to the United States Marine Corps.  For those who don’t know, Marines United was a Facebook group, originally designed to help Marines returning from combat.  It consisted of nearly 30,000 members of active duty, reservist, retired, and former Marines.  A small sect of the group, however, broke from the original intent and became something sinister.  This group acquired photographs of female Marines in various states of undress and posted them online.  Additionally, these photos were lewdly commented on by numerous members of the Marines United group.  Thomas Brennan, a member of Marines United and freelance journalist, became distressed by the conduct of this subgroup and wrote a story and exposed the actions of the group.  While Marines United was apparently started with the best of intentions, the actions of the smaller sect have engulfed the entire group.  And this has been further exacerbated by controversial of some of its members.  For a great article on this, see James Laporta’s piece on the Daily Beast, at:

http://www.thedailybeast.com/articles/2017/03/16/marines-united-spokesman-nude-photo-scandal-shows-why-women-shouldn-t-serve.html

Upfront, I am not condoning any of these actions.  The posting of these photos and the lewd comments highlight the fact that although female Marines go through the same training as the males at recruit training at Parris Island or at Officer Candidate School at Marine Corps Base Quantico, where they earn the title of United States Marine, they still somehow are not good enough.  Moreover, female Marines have fought and died in the same conflicts as male Marines since 2001.That being said, from a perspective as a former active duty military lawyer, and now a civilian defense attorney who focuses on military law, I have some concerns as to how this is being handled.

A few years back there was much publicity and congressional scrutiny surrounding the issue of sexual assaults in the military.  In the Marine Corps specifically, the then Commandant, General Amos, decided he would attack this issue by traveling to all installations throughout the Corps and speaking to all uniformed Marines.  Despite advice from top military lawyers, the Commandant made very forceful remarks about sexual assault including stating that the Corps was being “soft” on sexual assault, that he was “very, very disappointed” in court-martials where convicted Marines are not thrown out of the Corps, that false reports were “bullshit,” and that “80 percent” of the allegations of sexual assault are true.  The General at one point even said, “My lawyers don’t want me to talk about this, but I’m going to anyway,” and, “the defense lawyers love when I talk about this, because then they can throw me under the bus later…”  The problem with these statements was that, coming from the top General, they amounted to Unlawful Command Influence, which essentially means he was telling the potential jurors that allegations of sexual assault are true and that he expected a particular outcome from the courts-martial.  Obviously this was highly problematic and in fact led to the granting of several motions from military defense attorneys regarding the Unlawful Command Influence.

As a former active duty military attorney, who served as a defense counsel during the General Amos years, I am again concerned with how the military is handling the issue of cyber bullying and other online misconduct.  Following the Marines United scandal becoming public in March, the current Commandant, General Nellertestified before Congress and was publicly and harshly grilled over the controversy.  In response, the Commandant began to take actions which are eerily similar to those of General Amos.  First an ALMAR (order) was drafted that was meant to address the issue and to formally criminalize the actions.  While this is a necessary step, having reviewed the order, it is extremely broad and vague.  For example, the order states, “Marines must never engage in commentary or publish content on social networking platforms or through other forms of communication that harm good order and discipline or that bring discredit upon themselves, their unit, or the Marine Corps.  In other words, Marines should think twice before engaging in questionable online activities, and must avoid actions online that threaten the morale, operational readiness and security, or public standing of their units, or that compromise our core values.”  The problem with this type of language is that it is extremely subjective and arguably could range from posting to viewing or even just “liking” an online post.  Additionally, like his predecessor, General Neller is embarked on a road trip across the Marine Corps, where he spoke Marines about his thoughts as to this problem.

Further developments occurred in April when the Secretary of Navy decided to update the Navy Regulations with the addition of Article 1168 ‘Non consensual distribution or broadcasting of an image,’ now making it a crime to wrongfully share “intimate” images of others.The regulation defines “intimate” as:

  1. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;
  2. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and
  3. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

Wrongfulness is defined as, “if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

  1. With the intent to realize personal gain;
  2. With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or
  3. With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

There are several apparent issues with this regulation on its face.  First, is the reasonable expectation of privacy language.  As a lawyer, we typically deal with this standard when considering the lawfulness of Fourth Amendment searches against our clients.  Well this turns that standard on its head since now we are talking about the privacy expectations of an alleged victim.  So when does an alleged victim have a reasonable expectation of privacy?  What if the alleged victim is having sex in front of a group of servicemembers, but unbeknownst to him/her, someone is recording it and then texts it to a group of friends?  Presumably you waive the expectation of privacy by engaging in public sex?  Does the reasonable expectation of privacy apply to person at the time the image was captured, or does it apply to the actual image, or both?  What about a nude beach?  Are you only waiving the expectation of privacy to other people on the beach, but not to the rest of the world in the event that someone photographs you and posts it online?  These are all unknowns at this point and some of them will eventually be answered by the appellate courts.  However, for now it seems to be open season for commands to try and fill the gaps, which rarely works out well for the accused.  Further, the litigation surrounding this issue will certainly revolve around Fourth Amendment search/seizure case law that has vastly different fact patterns.

Next is the issue of wrongfulness.  The regulation appears to create a very confusing three-prong test.  What is a legal justification?  When, if ever, is the consent requirement waived?  For example, if someone publicly posts a nude photo of themselves on Facebook and a servicemember reposts it, did they violate the order, or were both the reasonable expectation of privacy and the consent issues waived at the time the post was made?  Most glaring is this “personal gain” issue.  Is this referring to a financial gain?  A gain in status amongst peers?  A gain in personal self-esteem?

This is a very fluid situation at this point, but the danger of once again polluting jury pools and these confusing new regulationsare getting the attention of military defense lawyers throughout the country.

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