2020 (October Term)

United States v. Adams, 81 M.J. 475 (Congress’s 2016 amendments to Article 43, UCMJ, reduced the statute of limitations for indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, to five years – see US v. McPherson, 81 MJ 372 (CAAF 2021)). 

(the savings clause in the 2016 amendments to Article 43, UCMJ, did not apply in this case and prevent the five-year statute of limitations from barring the rehearing of indecent liberties with a child charged under Article 134, UCMJ, and sodomy with a child charged under Article 125, UCMJ, because the original charges were not dismissed as defective or insufficient for any cause but rather were repreferred as new charges for the same offenses with only minor changes and the government reassured the military judge that the new charges and specifications were exactly the same as the original charges; for the savings clause in Article 43(g), UCMJ, to apply, the original charges must have been dismissed because they were defective or insufficient in some manner). 

(a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights).    

2012 (September Term)

United States v. Whitaker, 72 M.J. 292 (n conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003)). 

(the accused’s plea of guilty to sodomy with a sleeping victim was provident where the stipulation of fact stated that the accused knew that the victim was asleep and an unwilling participant, and there were no facts or statements in the record that were inconsistent with the stipulation; although this fact was neither set forth in the specification nor explored by the military judge during the providence inquiry, the military judge was allowed to consider the stipulation of fact in determining whether the accused’s plea was provident, and whether the accused’s conduct under the circumstances implicated constitutionally protected conduct; considering the stipulation of fact in conjunction with the providence inquiry, which adequately covered the elements of Article 125, UCMJ, there was no substantial basis in law or fact to question the providence of the accused’s plea). 

United States v. Castellano, 72 M.J. 217 (although Article 125, UCMJ, prohibits every kind of unnatural carnal intercourse, wholly private, consensual sexual activity between adults otherwise proscribed by Article 125, UCMJ, is constitutionally protected, absent some other fact).

(Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest), including those that track the aggravating factors that the President has also identified for the purpose of sentencing in the discussion to Article 125, UCMJ (listing as aggravating factors that the act was done with a child or by force and without consent of the other person), are critical to an Article 125, UCMJ, conviction because, in the absence of such additional factors, an act of sodomy may not be criminalized; the existence of the additional factor that makes an act of sodomy criminal must be determined by the trier of fact). 

(in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments).  

(none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented). 

United States v. Medina, 72 M.J. 148 (the accused’s guilty plea to consensual sodomy with an adult in violation of Article 125, UCMJ, was improvident where the providence inquiry, in which the military judge added an element requiring that the act of sodomy be prejudicial to good order and discipline, failed to ensure the accused’s personal understanding of matters critical to his guilt; that is, the military judge failed to discuss with the accused why this additional element removed his sexual activity from the liberty interest protection recognized in Lawrence (539 US 558) and Marcum (60 MJ 198) and subjected that activity to criminal sanction).

United States v. Hartman, 69 M.J. 467 (the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 requires consideration of three questions set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006): first, was the conduct of a nature to bring it within the liberty identified by the Supreme Court in Lawrence v. Texas, 539 US 558 (2003); second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest). 

(appellant’s guilty plea to the offense of consensual sodomy was improvident where the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the MCM and appellant merely described the nature of the sexual conduct between himself and the other party to the sexual act, but the inquiry failed to reflect consideration of the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 as set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006); although in response to the questions from the military judge, appellant stated that the incident took place on board a military facility, that the other participant in the sexual activity was a servicemember assigned to the same ship as appellant, and that a third servicemember was present and asleep in the room at the time of the charged act of sodomy, the military judge failed to explain to appellant the significance of the questions, nor did the military judge ask appellant whether he understood the relationship of the questions and answers to the distinction between constitutionally protected behavior and criminal conduct; in the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, appellant’s plea was not provident).

United States v. Yammine, 69 M.J. 70 (indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ). 

2008 (Transition)

United States v. Wilson, 66 M.J. 39 (there is no mistake of fact defense available with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen).

 
2005

United States v. Stirewalt, 60 MJ 297 (constitutional challenges to Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence v. Texas must be addressed on an as applied, case-by-case basis; there is a tripartite framework for addressing Lawrence challenges within the military context: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court?  Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? and, Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?). 

(where consensual sodomy occurred between a commissioned officer department head and a subordinate enlisted crew member, and where this conduct was prohibited by Coast Guard regulations and policy, the conduct fell outside any protected liberty interest recognized in Lawrence and was appropriately regulated as a matter of military discipline under Article 125; thus, Article 125 was constitutional as applied).

(by its terms, Article 125 prohibits every kind of unnatural carnal intercourse, whether accomplished by force or fraud, or with consent; similarly, the article does not distinguish between an act committed in the privacy of one’s home, with no person present other than the sexual partner, and the same act committed in a public place in front of a group of strangers, who fully apprehend in the nature of the act; thus, Article 125 forbids sodomy whether it is consensual or forcible, heterosexual or homosexual, public or private).  

United States v. Marcum, 60 MJ 198 (the application of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct charged under Article 125, UCMJ, must be addressed in context and not through a facial challenge; the question this Court must ask is whether Article 125 is constitutional as applied to the charged conduct; this as-applied analysis requires consideration of three questions:  First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court?  Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence?  539 U.S. at 578.  Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?). 

(in this case, the prohibition against non-forcible sodomy in Article 125, UCMJ, did not violate due process as applied to the accused where the accused was convicted of non-forcible sodomy with a subordinate servicemember who he supervised and rated as a supervising NCO; the accused’s conduct fell outside the liberty interest in private, consensual sexual activity between adults because his conduct was with a subordinate servicemember within his chain of command who might be coerced or who was situated in a relationship where consent might not easily be refused).

United States v. Banker, 60 MJ 216 (this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy). 

2002