Punitive article under the Uniform Code of Military Justice for offenses relating to child pornography

(a) In general Chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) is amended by inserting after section 917a (article 117a) the following new section (article): 917b. Art. 117b. Child pornography (a) Prohibition Any person subject to this chapter who knowingly and wrongfully— (1) possesses, receives, or views child pornography; (2) possesses child pornography with the intent to distribute; (3) distributes child pornography; or (4) produces child pornography, shall be punished as a court-martial may direct, subject to the applicable limits specified in subsection (b). (b) Maximum punishments (1) The maximum punishment for the offense of possessing, receiving, or viewing child pornography under subsection (a)(1) shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. (2) The maximum punishment for the offense of possessing child pornography with intent to distribute under subsection (a)(2) shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. (3) The maximum punishment for the offense of distributing child pornography under subsection (a)(3) shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years. (4) The maximum punishment for the offense of producing child pornography under subsection (a)(4) shall be dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years. (c) Treatment of personally identifiable information On motion of the Government, in any prosecution under this section, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence. (d) Determination wrongfulness Any facts or circumstances that show that a visual depiction of child pornography was unintentionally or inadvertently acquired are relevant to wrongfulness, including, the method by which the visual depiction was acquired, the length of time the visual depiction was maintained, and whether the visual depiction was promptly, and in good faith, destroyed or reported to law enforcement. (e) Determination of knowing An accused may not be convicted of an offense under subsection (a) if the accused was not aware that the visual depiction involved was of a minor or what appeared to be a minor, engaged in sexually explicit conduct. Awareness may be inferred from circumstantial evidence such as the name of a computer file or folder, the name of the host website from which a visual depiction was viewed or received, search terms used, and the number of images possessed. (f) Definitions In this section: (1) The term child pornography means material that contains either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct. (2) The term distribute means to deliver to the actual or constructive possession of another. (3) The term minor means any person under the age of 18 years. (4) The term possess means to exercise control of something. Possession may be direct physical custody like holding an item in one’s hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item. (5) The term produce — (A) means to create or manufacture child pornography that did not previously exist; and (B) does not include reproducing or copying child pornography. (6) The term sexually explicit conduct means actual or simulated— (A) sexual intercourse or sodomy, including genital to genital, oral to genital, anal to genital, or oral to anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals, anus, or pubic area of any person. (7) The term visual depiction includes— (A) any developed or undeveloped photograph, picture, film, or video; any digital or computer image, picture, film, or video made by any means, including those transmitted by any means including streaming media, even if not stored in a permanent format; or (B) any digital or electronic data capable of conversion into a visual image.. (b) Conforming amendment to definition of covered offense Section 801(17)(A) of title 10, United States Code (article 1(17)(A) of the Uniform Code of Military Justice), is amended— (1) by inserting section 917b (article 117b), after section 917a (article 117a),; and (2) by striking the standalone offense of child pornography punishable under section 934 (article 134),.