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).
United
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
indeed
any) of the elements of indecent acts, notwithstanding that the accused
may
have been on notice of the possibility that he might be convicted of
such an
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
the offense
of indecent acts as an LIO of rape; to the extent that Schoolfield
and US
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. 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).
2000
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).
1999
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).