§ Article 134 : Child Pornography

This offense is prosecuted under Article 134 of the UCMJ (10 U.S.C. § 934), the General Article. It punishes knowingly and wrongfully possessing, receiving, viewing, distributing, or producing child pornography, under circumstances prejudicial to good order and discipline or discrediting to the armed forces.

Disambiguation — this is not Article 134 itself

Article 134 is a general clause under which the Manual for Courts-Martial lists numerous separately defined offenses. Child pornography is one of those enumerated offenses.

Who It Applies To

Any person subject to the UCMJ who knowingly and wrongfully possesses, receives, views, distributes, or produces child pornography, or possesses it with intent to distribute, under circumstances that are prejudicial to good order and discipline or service-discrediting.

What It Covers

Possessing, receiving, or viewing child pornography

1. The accused knowingly and wrongfully possessed, received, or viewed child pornography.
2. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Possessing child pornography with intent to distribute

1. The accused knowingly and wrongfully possessed child pornography.
2. The possession was with intent to distribute.
3. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Distributing child pornography

1. The accused knowingly and wrongfully distributed child pornography to another.
2. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Producing child pornography

1. The accused knowingly and wrongfully produced child pornography.
2. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Key definitions and rules

• Child pornography means material that contains either an obscene visual depiction of what appears to be a minor engaging in sexually explicit conduct, or a visual depiction of an actual minor engaging in sexually explicit conduct. Under the Manual, the Article 134 offense is broader than the federal and state statutes the Manual references and extends to visual depictions of what appear to be minors.
• A minor is any person under 18. For obscene visual depictions of what appears to be a minor, the minor depicted need not actually exist. Sexually explicit conduct means actual or simulated sexual intercourse or sodomy (genital-genital, oral-genital, anal-genital, or oral-anal), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the anus, genitals, or pubic area of any person.
• A visual depiction includes any developed or undeveloped photograph, picture, film, or video; any digital or computer image, picture, film, or video made, adapted, modified, or generated by any means, including material transmitted by any means such as streaming media, even if it is not stored permanently; and any digital or electronic data capable of conversion into a visual image.
• An accused may not be convicted unless aware that the images were of minors, or what appeared to be minors, engaged in sexually explicit conduct. Awareness may be inferred from circumstances such as file or folder names, the website involved, search terms, and the number of images.
• Possessing means exercising knowing and conscious control, direct or constructive. Distributing means delivering to the actual or constructive possession of another. Producing means creating child pornography that did not previously exist; it does not include copying.
• Under the Manual, facts showing that an image was acquired unintentionally or inadvertently — how it was acquired, how long it was kept, and whether it was promptly and in good faith destroyed or reported to law enforcement — are relevant to wrongfulness.
• Federal and state child pornography and obscenity offenses may also be charged under Article 134, clauses 2 and 3.

Maximum Punishment

Maximum authorized punishment. Each form carries a dishonorable discharge and forfeiture of all pay and allowances, with confinement as follows:

• Possessing, receiving, or viewing: 10 years.
• Possessing with intent to distribute: 15 years.
• Distributing: 20 years.
• Producing: 30 years.

Sentencing parameters. Possessing, receiving, or viewing, Category 2 (1–36 months). Possessing with intent to distribute, and distributing, Category 3 (30–120 months). Producing, Category 4 (120–240 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

A depiction of an actual minor qualifies without a separate showing of obscenity; a depiction of what only appears to be a minor qualifies only if it is obscene. Sexual acts or lewd acts with a child, including communicating indecent language or exposing oneself to a child by electronic means, are addressed by Article 120b, and distributing intimate images of adults by Article 117a.

What the Provision Does

The Manual defines four child pornography offenses under the General Article — possessing, receiving, or viewing; possessing with intent to distribute; distributing; and producing — and sets the maximum confinement by that conduct, from 10 to 30 years.

History

Child pornography was an enumerated Article 134 offense in the 2016 edition of the Manual for Courts-Martial (paragraph 68b). The 2018 amendments to the Manual (Executive Order 13825), effective January 1, 2019, carried it forward as the current paragraph 95, clarified that the offense reaches depictions of what appear to be minors, and added explanations of how federal and state child pornography and obscenity offenses may be charged. Executive Order 14130 (December 20, 2024) amended several of the paragraph’s definitions, including those of child pornography, minor, sexually explicit conduct, and visual depiction.

Sources

• 10 U.S.C. § 934 (Article 134, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 95
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 17 (Analysis of Punitive Articles)
• Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States, 89 Fed. Reg. 105343 (Dec. 27, 2024), Annex, Section 3 (amendments to Part IV, paragraph 95.c)
• 18 U.S.C. §§ 1466A, 2251, and 2252A (federal child pornography and obscenity offenses referenced in the Manual)
• United States v. Richard, 82 M.J. 473 (C.A.A.F. 2022) (Article 134 child pornography convictions were legally insufficient where the government offered no evidence that the conduct had any effect on good order and discipline)
• United States v. Ozbirn, No. 20-0286/AF (C.A.A.F. Mar. 23, 2021) (noting, as held in earlier decisions, that not all naked pictures of children are child pornography)
• United States v. Forrester, 76 M.J. 479 (C.A.A.F. 2017) (explaining that the offense, as then defined in the Manual, is tied to the material that contains prohibited visual depictions, not to the quantity or variety of the depictions)