Military Justice by Eugene R. Fidell

Author:Eugene R. Fidell
Language: eng
Format: epub
ISBN: 9780199303496
Publisher: Oxford University Press
Published: 2016-07-01T16:00:00+00:00

The second clause of the general article criminalizes conduct of a nature to bring discredit on the armed forces. The conduct must be such that it will tend to “bring the service into disrepute” or “lower it in public esteem.” Like “conduct to the prejudice of good order and discipline,” this clause covers a multitude of sins and provides ample fodder for litigation. A 1995 case observed that “any reasonable officer would know that asking strangers of the opposite sex intimate questions about their sexual activities, using a false name and a bogus publishing company as a cover, is service-discrediting.” Acts that violate local civil law or foreign law can also trigger this offense since even if they do not apply of their own force in a court-martial, the underlying conduct may bring the service into disrepute or lower public esteem. This part of the general article also unfortunately bears some resemblance to the provisions of some countries’ military codes that penalize defaming the army or the flag.

What lowers the armed forces in public esteem in one country may not do so in another. This explains why in 2003 the Australian Defence Force Discipline Appeal Tribunal in Mocicka v. Chief of Army overturned a pornography conviction on the basis that it was not persuaded that the public would think the less of the Australian Defence Force simply because a noncommissioned officer had looked at dirty pictures (which were not child pornography) while using a government computer. The Tribunal said:

Not everybody in society approves of, or even tolerates, pictures of the kind that the appellant kept. They would offend some people. If the appellant’s conduct had been to brandish them to the general public in some way then, perhaps, it might be said that such conduct was likely to bring discredit on the Defence Force. In our view, on being told that a thirty-seven year old male army sergeant stored pornographic pictorial material that depicted what might be described as ordinary sexual activity, in a section of the Defence Force computer that was accessible only by him and four system managers, the ordinary citizen would not raise an eyebrow. Even if he or she did not approve of such material, it is not likely on learning that that was the case, the Defence Force would be lowered in the esteem of that hypothetical person.

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