Department of Defense

INSTRUCTION

NUMBER 4105.70

June 29, 1998

ASD(FMP)

SUBJECT:  Sale or Rental of Sexually Explicit Material
on DoD Property 

References:  (a)  Assistant Secretary of Defense for
Force Management Policy Memorandum, "Sale or Rental
of Sexually Explicit Material on DoD Property," December
20, 1996 (hereby canceled)

(b)  Secretary of Defense Memorandum, "Delegation of
Authorities," November 14, 1996

(c)  Under Secretary of Defense for Personnel and Readiness
Memorandum, "Delegation of Authority and Assignment
of Duties," December 6, 1996

(d)  Section 2489a of title 10, United States Code

(e)  DoD Directive 1330.9, "Armed Services Exchange
Regulations," December 15, 1986

(f)  DoD 8910.1-M, "DoD Procedures for Management of
Information Requirements," November 28, 1986, authorized
by DoD Directive 8910.1, June 11, 1993

1.  PURPOSE 

This Instruction supersedes reference (a) and, pursuant
to references (b) and (c), implements reference (d),
consistent with reference (e), by providing guidance
about restrictions on the sale or rental of sexually
explicit materials on property under the jurisdiction
of the Department of Defense or by members of the Armed
Forces or DoD civilian officers or employees, acting
in their official capacities.

2.  APPLICABILITY AND SCOPE 

This Instruction:

2.1.  Applies to the Office of the Secretary of Defense,
the Military Departments (including the Coast Guard
when it is operating as a Service in the Navy), the
Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Inspector General of the Department of
Defense, the Defense Agencies, and the DoD Field Activities.

2.2.  Shall not confer rights on any person.

3.  DEFINITIONS 

3.1.  Dominant Theme.    A theme of any material that
is superior in power, influence, and importance to all
other themes in the material combined.

3.2.  Lascivious.    Lewd and intended or designed to
elicit a sexual response.

3.3.  Material.    An audio recording, a film or video
recording, or a periodical with visual depictions, produced
in any medium.

3.4.  Property Under the Jurisdiction of the Department
of Defense.    Commissaries operated by the Defense
Commissary Agency and facilities operated by the Army
and Air Force Exchange Service, the Navy Exchange Service
Command, the Marine Corps Exchanges, and U.S. Navy ships'
stores (sometimes referred to collectively herein as
"retail outlets"), excluding, for the purposes of this
Instruction, entities that are not instrumentalities
of the United States.

3.5.  Sexually Explicit Material.    Material, the dominant
theme of which is the depiction or description of nudity,
including sexual or excretory activities or organs,
in a lascivious way.

4.  POLICY 

In implementing 10 U.S.C. 2489a (reference (d)), it
is DoD policy that:

4.1.  No sexually explicit material may be offered for
sale or rental on property under the jurisdiction of
the Department of Defense, and no member of the Armed
Forces, or DoD civilian officer or employee, acting
in his or her official capacity, shall offer for sale
or rental any sexually explicit material.

4.2.  Material shall not be deemed sexually explicit
because of any message or point of view expressed therein.

5.  RESPONSIBILITIES 

5.1.  The Assistant Secretary of Defense for Force Management
Policy, under the Under Secretary of Defense for Personnel
and Readiness, shall:

5.1.1.  Monitor and, as to DoD resale activities under
the Assistant Secretary's authority, direction and control,
ensure compliance with this Instruction;

5.1.2.  Establish, and appoint a chair of, the Resale
Activities Board of Review (the "Board") and approve
senior representatives from the Army and Air Force Exchange
Service, the Navy Exchange Service, and the Marine Corps
Exchange Service; and approve a senior representative
from each of the Military Departments, if designated
by the Military Department concerned, to serve as board
members on the Resale Activities Board.

5.1.3.  Monitor the activities of the Resale Activities
Board of Review and ensure that the Board discharges
its responsibilities as set forth in section 6., below,
of this Instruction.

5.2.  The Secretaries of the Military Departments shall
ensure that their respective component DoD resale activities
comply with this Instruction and may designate a senior
representative to serve on the Board.

5.3.  The Secretary of the Army and the Secretary of
the Air Force shall each appoint one senior representative
from the Army and Air Force Exchange Service to serve
on the Board.

5.4.  The Secretary of the Navy shall appoint a senior
representative from the Navy Exchange Service Command
and a senior representative from the Marine Corps Exchange
Service to serve on the Board.

6.  PROCEDURES 

6.1.  The Board shall have the authority and responsibility
periodically to review material offered or to be offered
for sale or rental on property under DoD jurisdiction,
and to determine whether any such material is sexually
explicit in accordance with this Instruction.   Within
60 days of the issuance of this Instruction, the Board
shall undertake and complete an initial review of material
that is offered for sale or rental on the date that
this Instruction becomes effective.

6.2.  If the Board determines that any material offered
for sale or rental on property under DoD jurisdiction
is sexually explicit, such material shall be withdrawn
from all retail outlets where it is sold or rented and
returned to distributors or suppliers, and shall not
be purchased absent further action by the Board.

6.3.  Following its initial review under subsection
6.1., above, the Board shall convene as necessary to
determine whether any material offered or to be offered
for sale or rental on property under DoD jurisdiction
is sexually explicit.   The Board members shall, to
the extent practicable, maintain and update relevant
information about material offered or to be offered
for sale or rental on property under DoD jurisdiction.

6.4.  If any purchasing agent or manager of a retail
outlet has reason to believe that material offered or
to be offered for sale or rental on property under DoD
jurisdiction may be sexually explicit as defined herein,
and such material is not addressed by the Board's instructions
issued under subsection 6.5., below, he or she shall
request a determination from the Board about such material.

6.5.  At the conclusion of its initial review under
subsection 6.1., above, and, thereafter, from time to
time as necessary, the Board shall provide instructions
to purchasing agents and managers of retail outlets
about the withdrawal and return of sexually explicit
material.   The Board may also provide instructions
to purchasing agents and managers of retail outlets
about material that it has determined is not sexually
explicit.   Purchasing agents and managers of retail
outlets shall continue to follow their usual purchasing
and stocking practices unless instructed otherwise by
the Board.

7.  INFORMATION REQUIREMENTS 

The Chair, Resale Activities Board of Review, shall
submit to the Assistant Secretary of Defense for Force
Management Policy an annual report documenting the activities,
decisions, and membership of the Board.   The annual
report shall be due on October 1.   The annual report
required by this Instruction is exempt from licensing
in accordance with paragraph 5.4.3. of DoD 8910.1-M
(reference (f)).

8.  EFFECTIVE DATE 

This Instruction is effective immediately.

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Author: Robert L. Vaessen e-mail:
Last Updated: Sat, Apr 3, 1999 09:37