The Court of Appeals in Roberts v. U.S., decided on September 26, 2019, reversed multiple unlawful-disclosure convictions due to erroneous jury instructions.

The unlawful disclosure, a relatively new statute in DC renders unlawful disclosure of certain graphic photographic or video materials.  In this day and age of electronic capture, transfer of data and images, the statute has become more and more relevant and applicable.

Specifically, the unlawful-disclosure statute provides in pertinent parts that it shall be unlawful for a person to knowingly disclose one or more sexual images of another identified or identifiable person when:

  1. The person depicted did not consent to the disclosure of the sexual image;
  2. There was an agreement or understanding between the person depicted and the person disclosing that the sexual image would not be disclosed; and
  3. The person disclosed the sexual image with the intent to harm the person depicted or to receive financial gain.

Disclosure under the Statute is defined to mean transfer or exhibit to 5 or fewer persons.

In short, defendant argued that the trial court instructions erroneously defined the term “disclose” and moreover that the instructions failed to make clear that under the statute disclosure or dissemination of the materials has to be to someone other than the complaining person.

The trial court’s actual jury instructions were that the legal elements of unlawful disclosure of a sexual image, each of which the government must prove beyond a reasonable doubt were as follows:

  • Defendant exhibited a sexual image of the complaining witness (L.H.);
  • Defendant exhibited the sexual image to another person or exhibited the sexual image in a place where it is viewable to another person;
  • Defendant did so voluntarily and on purpose, not by mistake or accident;
  • [L.H.] was identified or identifiable in the sexual image; The sexual image did not result from [L.H.’s] voluntary exposure in a public or commercial setting;
  • [L.H.] did not consent to the exhibition;
  • There was an understanding between [L.H.] and the defendant that the sexual image would not be exhibited; and
  • When defendant exhibited the sexual image, he did so with the intent to harm [L.H.].

Essentially the instructions were the verbal layman version of the actual statutory language but were flawed in details.

The Court of Appeals held that one can be held responsible for “disclosure” exhibit or transferring of images under the statute even if no one other than the complaining witness has in fact seen or viewed them – rather a strict liability standard.  Thus the trial court’s jury instructions on that point was valid.

The second nexus of the instructions though that whether conviction could be had without actually anyone other than the complaining witness viewing the images -– the Court’s ruling on that was it cannot.

That is, the unlawful-disclosure statute requires that the defendant must have disclosed the sexual images at issue to a person other than the person depicted in the image.

Although testimony revealed presence of bystanders and the public nature of some of the areas where the images were disclosed or seen, no witnesses testified to having seen these images or to having been in a position to do so.

The jury could have reasonably inferred that it was sufficient that defendant intended to make the images viewable to L.H. only and that was not sufficient for conviction under the statute and thus a reversal was warranted.

Refer to our Washington DC Criminal Lawyer page for more detailed analysis of the criminal charges in the District.

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