2012 (September Term)
United States v. Goings, 72 M.J. 202 (the offense of indecent acts with another consists of three elements: (1) that the accused committed a certain wrongful act with a certain person; (2) that the act was indecent; and (3) that the conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces; indecent is defined as that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations).
(private consensual sexual activity is not punishable as an indecent act under Article 134, UCMJ, absent aggravating circumstances; one such aggravating circumstance is that the sexual activity is open and notorious, which includes when the participants know that someone else is present).
(the commission of sexual acts in the presence of a third party has been held to be sufficiently open and notorious to constitute an indecent act, punishable under Article 134, UCMJ, and permitting the filming of those same acts is also sufficient; Congress’ and the President’s determination to proscribe such acts that are to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces, no doubt furthers the military’s unique interest in obedience and discipline; in this case, where appellant permitted a third party to observe and memorialize his sexual intercourse with a female on videotape, and the trier of fact deemed the conduct to be prejudicial to good order and discipline and service discrediting, such conduct was not constitutionally protected wholly private and consensual sexual activity under Lawrence (539 US 558 (2003)); in Lawrence, the focal point of the constitutional protection involved an act of sexual intimacy between two individuals in a wholly private setting without more; Lawrence did not establish a presumptive constitutional protection for all offenses arising in the context of sexual activity; to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed; in this case, appellant did not raise such an issue at trial or develop such facts in a motion proceeding; in that context, the military judge did not commit error, let alone plain and obvious error, in failing to sua sponte raise a Lawrence issue).
2009 (September Term)
United States v. Contreras, 69 M.J. 120 (indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense, where by the terms of Article 134, UCMJ, that article might be violated by persons who are not and never have been in the military, and the MCM has not limited the application of indecent acts with another to military members only, as it has done with some other offenses listed under that article).(the application of Article 134, UCMJ, to punish indecent acts with another is not limited to military members, either expressly or by necessary implication; consequently, appellant’s housebreaking specification stated a viable offense when it alleged that he unlawfully entered a fellow airman’s room with the intent to commit indecent acts, despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline).
States v. Jones, 68 M.J. 465 (the offense of
indecent acts is not an LIO of
the offense of rape because the elements of rape do not include all (or
any) of the elements of indecent acts, notwithstanding that the accused
have been on notice of the possibility that he might be convicted of
LIO where (1) the offense of indecent acts was held to be an LIO of
rape by the
CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed
of indecent acts as an LIO of rape; to the extent that Schoolfield
v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law).
United States v. McCracken, 67 M.J. 467 (open and notorious indecent acts under Article 134, UCMJ, was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120, UCMJ, where the members were not instructed on the theory that appellant’s conduct was open and notorious).
(an appellate court may not affirm an included offense on a theory not presented to the trier of fact).
United States v. Miller, 67 M.J. 87 (indecent acts with another is a lesser included offense to indecent liberties with a child, and contains neither a “physical presence” nor a “presence” requirement; the offense does require that the acts be done in conjunction or participating with another person; there must be some affirmative interaction between the accused and the victim to satisfy the “with another person” element; this interaction need not take place between two individuals who are located in the same physical space; but the victim must be more than an inadvertent or passive observer).
United States v. Cohen, 63 M.J. 45 (under military case law, photographing or filming sexual acts is an offense punishable under Article 134 of the UCMJ).
United States v. Sims, 57 MJ 419 ("indecent" signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations; an otherwise lawful sexual act may violate Article 134, UCMJ, if it is committed "openly and notoriously"; an act is "open and notorious" when the participants know that a third person is present).
(where a sexual touching was committed in a private bedroom, with the door closed but unlocked, and where neither party had disrobed, appellant’s conclusory stipulation was inadequate to establish a factual predicate for "open and notorious" sexual conduct; there was a substantial basis for rejecting the plea as improvident, because appellant’s responses and the stipulation of fact state only the conclusion that it was reasonably likely under these circumstances that appellant’s act of touching would have been seen by others, but they do not provide the factual basis for that conclusion).
United States v. Tollinchi, 54 MJ 80 (evidence that appellant had sexual intercourse with a woman in the presence of that woman’s boyfriend is sufficient to establish an indecent act).
United States v. Izquierdo, 51 MJ 421(fornication, committed openly and notoriously, is an aggravating circumstance sufficient to state an offense under Article 134, UCMJ).
(as an indecent act under Article 134, UCMJ, fornication is open and notorious, flagrant, and discrediting to the military service if committed in the actual presence of others, when the participants know that a third person is present, or under circumstances where it is reasonable likely that others will view the act).
(evidence was legally sufficient to show that fornication was open and notorious where, although appellant hung a sheet between beds, two of appellant’s roommates were present during the fornication and both were suspicious of the activity behind the sheet).(evidence was not legally sufficient to show that fornication was open and notorious where intercourse took place behind closed barracks room door and nobody else was present in the room).