Background

• Hartman, a Navy servicemember, was convicted by general court-martial of one count of sodomy under Article 125, UCMJ, based on a consensual act with another Navy member in the Transient Visitors Quarters with a third shipmate present and asleep.
• The plea proceeded under the MCM definition of sodomy; the judge asked Hartman to explain why he believed he was guilty, focusing on the conduct itself rather than the legal theory distinguishing permissible versus prohibited conduct.
• During the plea, after initial colloquy, trial counsel and the judge discussed Lawrence and Marcum, and Hartman answered questions about the act, location, and participants, but the judge did not frame or explain the significance of those questions in light of Marcum's framework.
• The military judge did not like-carefully apply the Marcum tripartite framework, nor did he ensure Hartman understood the statutory/criminality distinction tied to Lawrence and Marcum.
• The Navy-Marine Corps Court of Criminal Appeals affirmed; the Court of Appeals for the Armed Forces granted review on the due process viability of the conviction under Article 125 when Lawrence/Marcum considerations apply.
• The case ultimately questions whether the guilty plea satisfied due process when the conduct could be viewed under Lawrence as potentially protected and not criminal under Marcum’s military-context framework.

Issues

Key Cases Cited

• United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004) (tripartite framework for Lawrence challenges in the military context)
• United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004) (identifies Marcum tripartite framework application)
• United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) (plea inquiry importance; critical distinction between permissible and prohibited conduct)
• Care, 40 C.M.R. 247 (C.M.A. 1969) (plea colloquy requirements for provident plea)
• United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (affirmation of plea colloquy showing understanding of criminality)