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
offense of sodomy solely in terms of the definition of the offense set
the MCM and appellant merely described the nature of the sexual conduct
himself and the other party to the sexual act, but the inquiry failed
reflect consideration of the appropriate framework for distinguishing
conduct constitutionally protected and conduct that may be prosecuted
criminally under Article 125 as set forth in United States v. Marcum,
MJ 198 (CAAF 2006); although in response to the questions from the
judge, appellant stated that the incident took place on board a
facility, that the other participant in the sexual activity was a
assigned to the same ship as appellant, and that a third servicemember
present and asleep in the room at the time of the charged act of
military judge failed to explain to appellant the significance of the
questions, nor did the military judge ask appellant whether he
relationship of the questions and answers to the distinction between
protected behavior and criminal conduct; in the absence of a dialogue
lay terminology to establish an understanding by the accused as to the
relationship between the supplemental questions and the issue of
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).
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).
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
(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).
States v. Marcum, 60 MJ 198 (the application of Lawrence
Texas, 539 U.S. 558 (2003) to consensual conduct charged under
UCMJ, must be addressed in context and not through a facial challenge;
question this Court must ask is whether Article 125 is constitutional
applied to the charged conduct; this as-applied analysis requires
of three questions: First, was the conduct that the accused was
guilty of committing of a nature to bring it within the liberty
identified by the Supreme Court? Second, did the conduct
behavior or factors identified by the Supreme Court as outside the
(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).