United States v. Goings
2013 CAAF LEXIS 567
| C.A.A.F. | 2013Background
- Appellant was convicted by a general court-martial of rape and indecent act with another under UCMJ; sentence included dishonorable discharge, five years’ confinement, forfeitures, and reduction to E-1; forfeitures were disapproved and automatic pay for six months waived.
- Video evidence showed Appellant and a consenting adult female engaging in sexual activity in his private German apartment, filmed by an unidentified male; the participants were aware of the recording and acted consensually.
- Spec 6 under Article 134 alleged that Appellant allowed a third party to observe and video record the sexual act; the specification did not plead the terminal element of Article 134.
- ACCA initially affirmed the findings and sentence; this Court vacated and remanded for consideration in light of Foster; ACCA again affirmed, holding Spec 6 could be construed to imply the terminal element.
- Appellant argued Lawrence v. Texas could render the indecent act unconstitutional as applied; the Court applied plain error review and ultimately held the conduct was not constitutionally protected under Lawrence as applied in the military context.
- The Court concluded the Government’s failure to allege the terminal element was plain error under Fosler, but found no prejudicial error given the record showed notice and defenses, sustaining the conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawrence privacy zone extends to indecent acts in this case? | Goings argues Lawrence protects private sexual conduct. | Government argues Lawrence does not immunize the military context here. | Lawrence does not render the conduct protected in this context. |
| Specification 6 properly states the terminal element of Article 134? | Goings contends Fosler requires explicit or fairly implied terminal element. | Government argues the specification can be construed to imply the terminal element. | Plain error to omit terminal element; no prejudice shown. |
| Was the failure to plead the terminal element prejudicial under Humphries/Fosler analysis? | Goings asserts prejudice from missing terminal element. | Government contends any prejudice was avoided by notice in record. | No prejudice; conviction affirmed. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (privacy liberty interest in private sexual conduct applies to adults in private settings, with limits in military context)
- Fosler, 70 M.J. 229 (C.A.A.F. 2010) (terminal element cannot be fairly implied from act alone; plain error analyzed)
- Humphries, 71 M.J. 209 (C.A.A.F. 2012) (prejudice analysis for defective specifications requires notice of terminal element)
- Foster, 70 M.J. 225 (C.A.A.F. 2011) (reconsideration standard guiding as-applied challenges)
- Izquierdo, 51 M.J. 421 (C.A.A.F. 1999) (open and notorious standard for indecency in presence of third party)