Non-contact sex offenses under the UCMJ don’t require physical touching: recording, distributing images, voyeurism, exposure, child sexual abuse material, sextortion, and online enticement. The charges are spread across Articles 117a, 120c, and 134, and the table below shows what the government has to prove for each. These offenses overlap in ways prosecutors exploit, stacking charges from a single phone extraction across all three articles. In some cases, an honest mistake of fact about age can be a defense in CSAM cases involving older adolescents. OSTC, which controls charging on every offense covered here, makes its decisions by reading the analytical report of what was found on an accused’s devices and picks as many charging theories as possible.
Non-Contact Offenses: Articles 117a, 120c, and 134
These charges come up in phone and computer extractions, cloud storage searches, email and text message reviews, social media investigations, ICAC sting operations, device searches as part of an investigation, and cases where someone showed private recordings to people who were never supposed to see them.
Non-Contact Sex Offenses Under the UCMJ: Key Differences
| Offense | Article | Government Must Prove |
|---|---|---|
| Indecent viewing | 120c | You watched/saw someone’s private areas without their permission in a place where they expected privacy |
| Indecent recording | 120c | You recorded someone’s private areas without their permission in a place where they expected privacy |
| Broadcasting/distributing indecent recording | 120c | You shared or transmitted a recording of someone’s private areas that was made without their permission |
| Indecent exposure | 120c | You intentionally showed your genitals, buttocks, or (for women) nipples in a sexual or offensive way |
| Distribution of intimate images | 117a | You shared sexual images of someone without their permission, knowing it could harm them |
| Forcible pandering | 120c | You forced someone into prostitution |
| Possession/receipt/viewing of CSAM | 134 | You knowingly had, received, or looked at child pornography (real or computer-generated) |
| Possession of CSAM with intent to distribute | 134 | You had child pornography and intended to share it with others |
| Distribution of CSAM | 134 | You shared child pornography with someone else |
| Production of CSAM | 134 | You created new child pornography (including asking a minor to send “pics” or “vids”) |
| Online enticement of a minor | 120b/134 | You tried to talk someone you believed was a minor into sexual activity |
| Sextortion | 127/120c/134 | You used threats to get sexual images, money, or cooperation from someone |
How Non-Contact Offenses Overlap
These charges cover different conduct, but prosecutors can use them together. Here’s how they connect:
- Article 117a covers recordings you obtained lawfully but shared without permission (the ex-girlfriend’s nudes you forwarded to your buddies).
- Article 120c covers recordings you obtained unlawfully in the first place (peeping, hidden cameras, recording someone without their knowledge).
- CSAM offenses cover actual and virtual child pornography, including AI-generated images. The MCM definition includes images of what “appears to be” a minor. The minor doesn’t have to exist.
- Viewing CSAM is a separate offense from possessing it. Cached images on a password-protected computer can be enough to prove viewing even without proof of possession.
- Sextortion cases can be charged under multiple articles simultaneously: extortion (Art. 127), indecent recording/distribution (Art. 120c), CSAM (Art. 134), or child enticement (Art. 120b) depending on the facts.
- “Wrongfully” is an element of every CSAM offense, which leaves a narrow opening for defenses based on accidental or inadvertent acquisition. The “knowledge” element opens the door to mistake defenses about the age of the people in the files.
Mistake of Fact in CSAM Cases
The mistake of fact defense might be available in CSAM cases, where an accused can contest whether he knew or should have known the age of the person, but it depends on what the images show. When the files depict very young children, there’s not much hope of convincing a judge you thought the person was at least 18. When the images involve older adolescents, the question of age gets trickier. At trial, the government sometimes brings in pediatricians or nurse examiners who use a medical scale called Tanner staging to testify that the person depicted is a minor. But Tanner staging isn’t required. The government can also leave it to the judge or panel to look at the images and draw their own conclusions based on common sense and whatever other evidence is available. Defense experts can challenge the reliability of any age estimate made from an image.
OSTC’s Role in Prosecuting Non- Contact Sex Offenses
Every sex offense on this page is a “covered offense” under the Office of Special Trial Counsel’s mandate, which means OSTC, not the command, decides what gets charged and where it goes.
- OSTC prosecutors decide whether a case heads to a general court-martial or gets sent back to the command for a lesser disposition.
- OSTC evaluates whether the evidence supports a high likelihood of conviction, not just whether probable cause exists. They’re protecting their winning percentage.
- That evaluation creates an opening for the defense before charges are even preferred.
- Gagne, Scherer & Associates advocates its clients’ interests through OSTC during the investigation phase, puts favorable evidence and weaknesses in the government’s case in front of the prosecutors when investigators won’t, and pushes for a declination or a lesser disposition before the case ever reaches a charge sheet.
Gagne, Scherer & Associates: Experienced Court-Martial Lawyers
Charging theories under Articles 117a, 120c, and 134 overlap, and OSTC will pile them on. If you’re under investigation or facing charges for any offense covered on this page, contact the experienced military lawyers at Gagne, Scherer & Associates at (224) 935-6172. You’ll speak with a civilian military attorney directly.