70 M.J. 545
A.C.C.A.2011Background
- Appellant was convicted by a court-martial of two specifications of sodomy and one specification of assault consummated by battery under Articles 125 and 128 UCMJ.
- Appellant challenged the sodomy convictions as barred by the Supreme Court’s Lawrence v. Texas protections.
- Facts: in a Fort Drum barracks room, an intoxicated PFC LY, without consent, was sodomized and orally assaulted by appellant after being awakened at night.
- The record shows lack of consent; each specification included the words by force and without consent as sentence aggravators.
- Special findings under Article 51(d) and Rule for Court Martial 918(b) clarified consent and related issues and were reviewed on appeal.
- The court concluded Lawrence does not render the sodomy convictions unconstitutional and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Lawrence protect the conduct from conviction here? | Truss argues Lawrence applies. | Lawrence does not cover non-consensual military barracks conduct. | No protected liberty interest; convictions upheld. |
| Are the military judge’s special findings consistent and sufficient? | Appellant contends inconsistency between verdict and findings. | Findings align with the trial record. | Findings are not inconsistent and are legally/factually sufficient. |
| Is the statute’s application constitutional under Marcum framework? | Lawrence-based challenge to Article 125. | Military context permits application; no Lawrence violation. | Conduct not within Lawrence; constitutionality sustained. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (consent-based liberty interest not implicated here)
- Marcum v. United States, 60 M.J. 198 (C.A.A.F. 2004) (tripartite test for Lawrence challenges in military context)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (sentence aggravators must be pled and proven beyond a reasonable doubt)
- United States v. Zachary, 61 M.J. 813 (Army Ct. Crim. App. 2005) (authorization of enhanced punishment; aggravators and underlying offense separate)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (burden beyond doubt for sentence-enhancing factors)