Why Marines Might Get Away With Sharing Nude Photos

Military and civilian law make prosecuting revenge porn difficult, and neither NCIS nor cops have adequate resources. It will take the FBI to get justice.

Bill Chizek/Getty

The Marine Corps nude-photo scandal has spread throughout the entire Department of Defense and brought the commandant of the Marine Corps to testify before the Senate less than two weeks after the story broke.

But for all the attention given to the sickening scandal, most of the perpetrators may escape consequences.

In January, a cache of explicit photos and videos of numerous female Marines and civilian women, some photographed without their consent, was posted in the private Facebook group, “Marines United.” Some of the photographs also contained the individual’s name, military rank, and unit, according to the story that broke the news on March 4, written by former Marine and journalist Thomas J. Brennan.

Facebook said it had shut down the Marines United group, but reports of its demise proved to be exaggerated. Marines United administrators had simply created multiple backup rooms that were also designated secret, in order to skirt law enforcement investigations and Facebook censors, according to previous reporting by The Daily Beast.

The photos fall into the category of “revenge porn,” which is the dissemination of sexually explicit or nude images of a former lover or spouse, with the intent of causing their embarrassment and humiliation. But the term has expanded to include other forms of online sexual abuse, stalking, and harassment involving the non-consensual dissemination of photos and videos, including those that were originally taken and/or distributed with the subject’s consent.

In general, offenders fall into two distinct categories, servicemember or veteran, and each poses different problems for potential prosecution for revenge porn.

During a Senate Armed Services Committee hearing on Tuesday, Sen. Richard Blumenthal noted that two articles under the Uniform Code of Military Justice: Article 120 (rape, sexual assault, and other sexual misconduct) and Article 134 (conduct that goes against good order and discipline) do not address revenge porn and cyberbullying.

Blumenthal asked Gen. Robert B. Neller, the man leading today’s Marines and the nation’s top Marine, whether he felt a provision should be introduced into the UCMJ regarding online harassment. Neller told the committee that the Marine Corps has had talks regarding whether the current military articles adequately address the problem.

“I believe the tools [Articles 120 and 134] are sufficient if that’s the level of punishment or administrative action you wanted to go to, if the facts support that,” Neller said.

For prosecution of servicemembers, these types of cases can be problematic and heavily dependent on “fact-based evidence” versus persuasion of a military judge or jury.

Lt. Col James W. Weirick, a former Marine Judge Advocate General, told The Daily Beast that adding a provision into the UCMJ could be helpful, but “those laws are difficult to craft because of potential violations of the First Amendment.”

Creating a cyberbullying provision into the UCMJ would be similar in scope to the half of all states that have adopted cyberbullying laws that seek to increase accountability of those who engage in electronic harassment, according to Weirick and the Cyberbullying Research Center.

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However, Weirick says that there is content within Marine Corps culture that could be considered bullying.

“You know, making fun of Boots [inexperienced Marines] and how they wear their uniforms wrong, taking pictures of some overweight Army dude. The question becomes do we want to criminalize all of that or do we want to say ‘we discourage this,’ as an institution. Criminalizing it is another thing,” he said.

It’s a matter of culture more than crime, Weirick explained.

“I’m not saying a provision can’t be created, it’s just hard because we’ve gone down this road with comments against women and I understand the larger cultural issue [within the armed forces] and females in the Marine Corps,” he said.

“I think everyone is looking for a quick answer to this and there’s not going to be one,” Weirick continued. “But you want to have an impact on the culture inside the military, how about make some three- and four-star female admirals and generals, that would have a lot more cultural impact than just shutting down some websites.”

Though there is also a potential national security risk to the nude-photo sharing, because explicit images could be used to blackmail active-duty servicemembers.

“While this is a threat, it’s not unknown at this point. Everybody knows [the nude photos] are out there it’s not a concealed issue anymore for blackmail purposes,” Bradley Moss, a national security attorney who frequently represents members of the intelligence community, told The Daily Beast.

For veterans that are fully transitioned out of military service, they are considered civilians in the eyes of the law and are therefore susceptible to prosecution by federal, state, and local statutes.

Civilians can be compelled to appear before a military court even if they live off-base, because military lawyers can use the civilian court system to enforce subpoenas. But that is rare, and in general, non-service-members are bound to the local and state laws that are applicable where they reside, where they were using the computer, and where the images in question end up.

State authorities have a different challenge from military or federal authorities regarding revenge porn investigations and prosecutions, dependent on the state.

Thirty-four states have revenge-porn laws that allow criminal charges ranging from misdemeanors to felonies. In North Carolina, home to Camp Lejeune—the largest Marine Corps amphibious base on the East Coast—revenge porn is a low-level felony. Just across the border in South Carolina there are no revenge porn laws, and local authorities make cases using laws against distributing obscene material and trespassing.

If crimes cross state lines, they can also be investigated by federal authorities under Title 18, Section 2261 of the U.S. criminal code, which bans interstate stalking, domestic violence, and harassment. Federal law also bans peeping and makes it illegal to access another person’s computer or online accounts without consent.

Whether it’s martial or civilian law, the relevant authorities are likely to be overwhelmed with the number of people involved and the labyrinth of sharing. The Naval Criminal Investigative Service seems to lack the necessary manpower and resources to address the problem efficiently. Local police and sheriff’s departments often have little to no experience investigating or prosecuting such cases.

Only the Federal Bureau of Investigation has the manpower and the expertise to fully handle the case, but it is not known to be investigating at this time.

Chris Swecker, former FBI assistant director who is now an attorney and a consultant on cybercrime, said the bureau has developed sophisticated tools for tracing cybercrimes back to the original posters of the material, and federal agents will undoubtedly bring those tools to bear in the Marines United case.

“It’s a matter of peeling back each layer of the onion and getting back to who the original posters are,” Swecker said. “That takes a little time, takes some expertise, takes resources… it’s difficult, but it’s doable, and in a high-profile case like this [the FBI is] going to pull out all the stops. It’s just going to take a little time.”

Aside from criminal prosecution, victims have one other avenue for justice: civil court.

Civilian victims of revenge porn can sue for damages usually on the grounds of copyright infringement. For instance, Pittsburgh law firm K&L Gates has assembled a legal clinic of more than 50 lawyers working pro bono on behalf of clients who are victims of cyberoffenses.

Victims’ rights advocacy group Without My Consent has set up a 50-state project to help victims of revenge porn file criminal complaints or civil lawsuits against their tormentors. The group recommends that victims of revenge porn save all evidence, and ask any websites, email providers, social media apps, and other intermediaries to save any evidence which implicates the person sharing the images. Then they should request that the images be removed for violating copyright.