A military prosecution for CSAM under Article 134 requires the government to prove knowing possession of contraband, among other things. Military members often have bad ideas about how to defend themselves in this kind of case and take action that only makes the situation worse. There are things they can do to help themselves, and hiring a good military lawyer who will be proactive during the prolonged investigative period is one. McGuire AFB (Joint Base MDL) is a particularly good illustration of how all this works.
What the Government Has to Prove
Article 134 CSAM isn’t a strict liability offense. It’s crucial to understand how military CSAM cases are prosecuted and defended. The government has to prove the accused acted knowingly, and “knowingly” covers both the act of possessing or receiving the file and the nature of what the file depicts. In a typical app-encounter case, the contested questions include:
- Whether the depicted person was under 18, or whether the depiction appears to be of a minor. The actual-minor route and the appears-to-be route are different paths to conviction.
- Whether the accused knew, or reasonably should have known, the depicted person was under 18 or appeared to be. This is a separate question from whether she was, and it’s where most of these cases are won and lost.
- How the material got onto the device. The wrongfulness instruction tells the panel that method of acquisition is relevant: a deliberate targeted download is not the same as a file embedded in a zip or a block transfer.
- How long the file was kept and whether it was opened. A file seized 36 hours after it arrived is different from a file that sat accessible on the desktop for three years.
- Whether the accused destroyed the file or reported it to law enforcement on discovery.
The age element can be settled through a prior NCMEC investigation that identified the victim, communications in the chat establishing her age, school records, or a parent’s testimony. When they don’t have direct proof, they have to prove age through expert medical testimony. This is often called Tanner Staging. A pediatric expert can describe what she sees in the images. Tanner staging is credentialed guesswork, and even if it establishes age, it says nothing about the accused’s state of mind, what he knew, or what his intent was.
Tanner Staging is vulnerable to attack from the defense, so the government will cherry-pick only the youngest-looking depictions to charge, the ones a panel will look at and conclude “obviously a child” without help from the expert.
Then there’s the “appears-to-be” aspect of these cases. Article 134 CSAM covers two categories: a depiction of an actual minor in sexually explicit conduct, or an obscene depiction of what appears to be a minor in sexually explicit conduct.
The appears-to-be theory encompasses virtual material, AI-generated images, morphed images, and youthful-looking adults depicted as minors fall under it, and it doesn’t require the depicted person to exist. The trade-off for the government is that the depiction must be obscene under the Miller test, which actual-minor depictions don’t have to be.
The Defenses That Don’t Work
Plenty of service members charged with CSAM call us already convinced they have their get out of jail free card. They’ve done their own research. They know where the line is, sometimes to the millimeter, and they want a lawyer to confirm what they already believe. One client showed up to a meeting with a three-ring binder of case law in plastic page protectors, intending to prove his behavior was barely legal but legal. He was wrong about almost everything. If that binder had landed in OSTC’s hands, they’d have used it as evidence of intent.
Common CSAM Defenses That Don’t Work in Military Court
| The “defense” | Why he thinks it works | Why it doesn’t work |
|---|---|---|
| Watermark says “18” | The label proves she was an adult | Producers add watermarks. The image is what the image shows. An “18” banner stamped over a toddler is proof of guilty intent, not innocence. |
| “She told me she was 18” | Her statement covers the knowledge element | Can you prove she told you that? An unsubstantiated claim isn’t enough. |
| “It’s AI-generated, no real child” | Fake images aren’t CSAM | An image that appears to be a minor in sexual conduct is CSAM. Fake is the same as real. |
| “It’s just erotica” | If it’s not graphically sexual, it’s legal | Provocative nudity of a minor is enough. Sometimes a clothed minor is enough. |
| “I deleted the files” | The evidence is gone | Forensic tools recover deleted files. Deleting also helps the prosecution prove guilty knowledge. |
The defenses that work are built by fighting the elements above, supported by the chat logs, forensic examinations, a timeline, and what the accused did or didn’t do after the CSAM material arrived. The winning defenses aren’t the ones the accused has already gamed out in his head.
What an Accused Can Do to Help Himself
The waiting period in a military CSAM investigation is months, sometimes more than a year. A few bases have their own digital forensic examiner at the law enforcement detachment. Most don’t. Air Force devices go to the Defense Cyber Crime Center in Maryland and get in line. Other services follow the same drill, using a variety of different labs, with rare exceptions like Bragg CID, which has its own DFE. Labs are backlogged regardless.
What is the Airman doing during this period? He works and carries on the best he can. If he’s in the Air Force, he’ll have a defense counsel he can check in with from time to time, but he shouldn’t expect proactive advocacy at this stage. If he’s not in the Air Force, he’s entirely alone: no defense counsel will be assigned before charges. That’s why you need a civilian military attorney during the pre-charge stage: someone who will be assertive, checking for updates, advocating with OSTC, addressing your anxieties, and answering your questions.
Almost all military JAG defense offices, and civilian military lawyers, will counsel the client to stay out of sight, avoid discussing the case, and check back when charges are served, as if there’s nothing to do but sit and wait. In fact, this waiting period is when a defense attorney might have the most leverage. OSTC has the authority to charge or to decline, and that decision is influenced by what they know when they make it. A civilian attorney who gets to OSTC early, before the report of investigation is finalized, can put context in front of the prosecutor that the agents might omit from briefings. A good example that occurs often in military cases: The Romeo-and-Juliet scenario. A 20-year-old Airman with a 17-year-old girlfriend whose photos are on his phone is technically guilty of a CSAM offense, and OSTC can prosecute it. Or the 19-year-old Airman whose girlfriend sent him “pics” when they were both 17; as soon as the Airman turns 18, he’s an adult in possession of CSAM. OSTC might not feel great about prosecuting that case. Our job is to make them decide not to. Every day the prosecution spends building the case without a defense attorney in the way is a day the charging decision becomes more inevitable.
Why McGuire Is Representative
McGuire is in the New Jersey ICAC enforcement zone, which documented a 74 percent jump in CSAM-related arrests between 2020 and 2024. The base population is young, overwhelmingly enlisted, and the bars and population density that anchor social life at less-rural installations aren’t there. App-based contact can fill the social void. That’s the pattern ICAC stings and platform reporting programs are built to catch.
The same dynamic plays out at almost every base, especially bases performing and supporting a high ops tempo. An OSI investigation that starts from an ICAC tip at McGuire follows the same arc as one at Lakenheath or Pendleton, and the defense imperative should be the same: get to OSTC early, before the charging decision, with the context prosecutors might not have.
Gagne, Scherer & Associates: Experienced Court-Martial Defense Lawyers
If you’re under investigation for a CSAM offense, don’t wait. And don’t explain yourself to anyone before you’ve talked to the civilian court-martial defense lawyers of Gagne, Scherer & Associates at (224) 935-6172.