The Air Force Court of Criminal Appeals overruled a military judge who in a pretrial hearing tossed out evidence in a child pornography case against Staff Sgt. Remington Carlisle, who had anime images and videos on his phone that formed the basis of the charges. (Wikimedia Commons)
A military judge erred in deciding that anime with childlike characters didn’t qualify as child pornography and was inadmissible as evidence in a noncommissioned officer’s pending court-martial, an Air Force appellate court unanimously ruled.
“The questions of whether those images are of persons or minors, and whether the depictions are obscene, are questions of fact” that should be determined at trial, Air Force Court of Criminal Appeals judges stated in a 3-0 decision on Tuesday.
The ruling stems from the case of Staff Sgt. Remington Carlisle, who was charged with one specification each of possessing, viewing and distributing child pornography.
Court documents described 33 images and videos found on his smartphone as “anime style depictions” of “overtly sexualized characters and sexually explicit images and plots.”
The judge, Col. Brian Thompson, found that most of the characters “appear to have the developmental age of a child in the 6 to 10-years-old range,” according to court papers.
But the case stalled in January, when government prosecutors responding to a defense demand provided a “bill of particulars,” a written statement that detailed all 33 visual depictions.
The defense moved to exclude the material, arguing that it did not depict minors and was not sexually explicit.
In an Article 39 pretrial hearing at Mountain Home Air Force Base, Idaho, earlier this year, Thompson determined that the videos and images were inadmissible and irrelevant, saying the subjects did not appear to be minors or human beings but fictional cartoon characters, according to court documents.
In overruling Thompson, the Air Force Court of Criminal Appeals said he had no legal basis to review the prosecution’s anticipated evidence before trial, deem it insufficient for a conviction and prevent the case from going ahead.
The appellate judges also made it clear that according to court precedent, anime-style images may be prohibited under the Uniform Code of Military Justice “if they depict what appear to be children engaged in sexually explicit conduct that is obscene.”
The Air Force appeals court will also have to review a separate case, for the second time, involving another airman at Mountain Home.
In March 2021, Airman Zachary Rocha was given a bad-conduct discharge and sentenced to 90 days in jail for engaging in sexual acts with a 4-foot-tall sex doll with female prepubescent features.
The service’s appellate court reversed the conviction in December 2022 on the basis that Rocha did not have “fair notice” that his conduct was criminal.
The U.S. Court of Appeals for the Armed Forces, the military’s highest court, earlier this month reversed the Air Force Court of Criminal Appeals and sent the case back to the lower appellate court for review.
The armed forces court of appeals found that elements and definitions in military law “provide fair notice to servicemembers of ordinary intelligence that engaging in sexual acts with a lifelike sex doll falls squarely” within the definition of indecent conduct.
