WASHINGTON — Marine Corps Commandant Gen. Robert Neller on Friday promised action against any service member involved in the social media nude photo sharing scandal, but just what punishment these troops could face remains unclear.
Earlier this week, Naval Criminal Investigative Service officials said they are looking into possible felony charges against individuals involved with the Marines United Facebook page, a community with nearly 30,000 members that was sharing nude pictures of female Marines and other women.
According to the War Horse, which first published accounts of the site with the Center for Investigative Reporting last weekend, at least some of the cases involved photos of women being stalked by colleagues, photos stolen off colleagues' computers, and photos shared without the women's permission or knowledge.
Neller said fewer than 10 women have come forward to file formal complaints about the photo sharing so far, but he expects that number to rise. He also acknowledged that he is aware of other sites sharing the photos in the wake of the Marines United page shutdown.
"I don't know the exact number of Marines that may have been targeted," he told reporters in a Pentagon press conference. "I don't know how many active duty Marines participated or were (involved in) this behavior … I can assure you if there's accountability to be made, those that are involved will be held accountable."
A task force was established Wednesday by Corps officials to look into what laws may have been broken by individuals involved.
"I'm not going to get into penalties and what the outcome is going to be," he said. "But it's something the task force is going to help us understand.
"What can we do, what can't we do, and what potentially needs to be changed so that there can be better accountability so that people might realize there are going to be consequences for that kind of behavior."
Many of the acts fall into a complicated legal area for military officials.
"There will be some people who put photos up who clearly violated the Uniform Code of Military Justice," said Don Christensen, former Air Force Chief Prosecutor and president of Protect Our Defenders. "But there are many others involved who might not be able to be prosecuted for any crimes."
The UCMJ is clear that an individual who "knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent" has committed a crime.
But Christensen said individuals who steal private photos and share them without permission fall into a different legal area. Both military and federal law don’t specify that as a crime, a situation that Rep. Jackie Speier, D-Calif., called "a gaping hole in regard to revenge porn."
Military officials can use general bad conduct language in the UCMJ to attempt to send those individuals to prison, but Christensen called it a less-than-certain legal strategy.
Speier, who has pushed legislation for federal penalties against sharing nude photos without consent, will introduce a new measure early next week to amend the UCMJ to specifically outlaw the practice in the military as well.
"It’s a violation of privacy, it’s despicable behavior," she said. "I think this shows a rotten culture in the military, and I’m not going to allow it to continue."
She said the UCMJ changes are needed because military officials haven’t taken steps in recent years to address the problem, despite repeated reports of similar abuse and degradation. Her legislation would force their hand.
"I don’t want people who treat women like cattle or meat to be in the military," she said. "If this is the way some men look at women in the military, they need to be kicked out."
Timothy Parlatore, a New York criminal defense attorney and former surface warfare officer who does pro-bono UCMJ work with sailors, said that Article 134, which covers actions prejudicial to good order and discipline and that bring discredit to the service, would likely be the net that the services use to punish active duty personnel who shared photos or made aggressive or harassing comments on the site.
"Article 134 is very broad and the actions could be seen as prejudicial to good order and discipline," he said. "Certainly it's service discrediting, no question about that."
But Christensen said prosecutions under that article can prove difficult, especially since military leaders haven't specified this type of online activity as a crime in the past.
In addition, getting information from Facebook and internet service providers could be challenging for investigators, unless they can get a court order. Parlatore said if investigators do get that information, they would be able to share it with local and state agencies, who may have better defined criminal penalties for distributing nude photos without consent.
The end result may be "they are going to spend millions of dollars on this and ultimately what they'll get is a bunch of misdemeanors," Parlatore said.
Christensen said even if Marines involved with the online harassment may avoid criminal charges, they’re still likely to face harsh administrative penalties, including dismissal from the service.
Neller conceded that Corps officials have not responded to similar problems in the past, and acknowledged he has not talked to Marines about behavior on social media when discussing other potentially self-destructive acts, such as alcohol abuse.
"I don’t have a Facebook page," Neller said. "I don’t do social media. That’s maybe my mistake. Now it’s right, dead center. It’s right in front of me now. Got to understand the threat, understand what’s going on."
Reporter David Larter contributed to this story.
Leo Shane III covers Congress, Veterans Affairs and the White House for Military Times. He can be reached at firstname.lastname@example.org.
Jeff Schogol is a senior reporter at Marine Corps Times.He can be reached at email@example.com.