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
(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
(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