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Not all voyeurism charges are alike

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By, Mathew B. Tully

Q. Is indecent viewing and “peeping Tom” behavior the same thing?

A. Both behaviors are forms of voyeurism, but they’re not the same.

Generally, the difference comes down to how much of their victims the offenders see.

In June 2012, a new version of the Uniform Code of Military Justice took effect that featured a new Article 120c, which concerns “other sexual misconduct.” That includes indecent viewing, visual recording and broadcasting; forcible pandering; and indecent exposure. Before that change, indecent viewing had been included in the UCMJ under the broader Article 120.

Now, a service member commits indecent viewing when he or she, without legal justification or excuse, “knowingly and wrongfully views the private area of another person, without that other person’s consent under circumstances in which that other person has a reasonable expectation of privacy.” Article 120c identifies particular private parts that qualify as a person’s “private area.”

Service courts addressing this issue have typically taken a broader view of acts that constitute indecent viewing.

In U.S. v. Donald E. Clark (1956), the Air Force Board of Review defined “window peeping” as a crime “only when the person observed has not given consent. It is a violation of this prohibition whereby the voyeur infringes upon the privacy of an individual observed that constitutes the criminal aspect of the act.”

As such, the court found that to be in violation of Article 134 because it was prejudicial to good order and discipline in the armed forces and of a nature to bring discredit to the armed forces.

It’s worth noting that this case omits mention of the viewing of any specific private parts, and under the 2012 UCMJ revisions, there is no requirement to show that the act was prejudicial to good order and discipline or service discrediting.

The new law further leaves open to interpretation whether an individual has a “reasonable expectation of privacy” in a particular setting.

To commit indecent viewing, a service member has to see another person’s certain private parts.

“Congress could quite readily make peeping upon a naked person a violation of Article 120, UCMJ,” the U.S. Army Court of Criminal Appeals noted in U.S. v.

Gregory A. Rice (2012). “It hasn’t; rather, it made observation of particular naked parts as criminal under that statute.”

The court added that voyeurism that does not include the viewing of these private parts could still qualify as a simple disorder under Article 134.

Service members who have been accused of voyeurism, whether in violation of Article 120c or Article 134, should immediately contact a military law attorney who might be able show the viewing of a nude person was accidental or that no private parts were viewed.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC. Email questions to askthelawyer@militarytimes.com The information in this column is not intended as legal advice.

 

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