Thе issue presented in this appeal is whether an unwitnessed act of sexual intercourse on a public beach late at night is a “public” (and thus indecent) act within the meaning of Article 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.
BACKGROUND
At approximately 1700 on 1 August 1987, the appellant and a group of friends attended a command-sponsored “going away” party at a beach on Torrii Station, Okinawa. Around 1900, the appellant and a friend met two young ladies who were walking past the party area on the beach. The two approached the women, introduced themselves and began talking. Shortly thereafter, the group split into two couples, with the appellant staying with [P], a 16 year old daughter of an Air Force technical sergeant. Later that evening, the appellant and [P] walked down the beach together, away from the party, which was in the process of winding down. The two strolled off down the beach for about lk of a mile, into a camping area that was officially closed at 1900. They sat down together at a thatch-covered picnic table. On the ground next to the table was a large canvas tent. The couple remained together for several hours, and at some point after midnight, left the table and walked over to the tent. They lay down on the side of the tent and engaged in sexual intercourse.
Afterward, they dressed and walked back up the beach toward the party site. At approximately 0200, the couple was discovered by [P]’s father, who had come looking for her after she had not arrived home on time. After insistent questioning by [P]’s father, apрellant admitted they had engaged in sexual intercourse.
Lance Corporal Carr was charged with rape and committing an indecent act by fornicating in public, in violation of Articles 120, 10 U.S.C. § 920, and 134, respectively, of the UCMJ. At a general court-martial, he was acquitted of the rape charge but was convicted of the Article 134 offense. He was sentenced to confinement for 1 year, reduction to pay grade E-l, forfeiture of $329.00 pay per month for 12 months, and a bad conduct discharge. The convening authority approved the sentence but suspended for 12 months the bad con
Before this Court, the appellant, in both written and oral argument, contends that the act of fornication did not occur in public and was thus not a criminal act cognizable under the UCMJ. See United States v. Berry,
DISCUSSION
Private sexual intercourse between unmarried persons is not punishable. United States v. Hickson,
In United States v. Berry, supra, the Court of Military Appeals held that an act of sexual intercourse falls within the ambit of the UCMJ when the participants know that a third person is present. Whether the third person is a willing viewer or a startled passer-by is irrelevant — the knowing presence of another is sufficient to remove the act from the constitutionally protected realm of private conduct. Id. at 330. This presence can be manifested in a number of ways. For example, if an act is “visible” to another through senses other than vision, it is a public act. See e.g., United States v. Scoby,
In United States v. Scoby,
Most recently, Chief Judge Everett, in United States v. Hickson,
In United States v. Snyder, 1 U.S.C.M. A. 423,
[Tjhis Article is not intended to set up a moral standard for the conduct of an individual’s affairs in private — provided at least that the questioned conduct does not interfere with the performance of military duties. To be the subject of proscription, acts of the character under scrutiny here must, as a general thing, involve or touch other persons.
In Snyder, the faсt that the solicitation took place at a military club in the presence of others was sufficient to draw the accused’s conduct out of the realm of privacy. Presumably, no violation of Article 134 would have been committed had the solicitation taken place outside the presence оf others. See 4 C.M.R. at 18.
The court in Berry dealt with an act of intercourse in a private hotel room that was performed in the presence of others. In that case the court reasoned that:
The public nature of an act is not always determined by the place of occurrence. A private residence in which other рersons are gathered may be regarded as a public place for the purpose of evaluating the character of conduct by one of the persons. This is particularly true when the act is of such a nature as to bring discredit upon the armed forces. (Citations omitted)
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In our opinion, the act is “оpen and notorious”, flagrant, and discrediting to the military service when the participants know that a third person is present.
In our view, the decisions in Snyder and Berry stand for the proposition that a sexual act can, in some circumstances, shed its constitutional protection notwithstanding its private location.
While it is true that no military court has previously addressed the meaning of the word “private,” many state courts have addressed the broader issue of what constitutes a “public place” for the purposes of prohibiting sexual activity. In doing so, these courts have almost uniformly looked to the location of the act and other circumstances, generally ruling that a sexual act is public where it takes place in such a manner that it is likely to be seen by others.
In State v. J.O.,
In Messina v. State,
Likewise, in People v. Legel, 24 Ill.App. 3d 554,
[i]t is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which thе act occurs. For example, a person standing nude before a lighted window of his private apartment at night, adjacent to a well traveled public sidewalk would be ... in a public place. Contrawise, a couple in a parked car on a public right-of-way but in a lonely country lane might not be in a рublic place, depending upon the likelihood of others traversing this particular area at such hours.
Many other state courts have adopted similar approaches to determining the public nature of a sexual act. See e.g., State v. Ramos,
Additionally, in a somewhat recent military case, the Army Court of Military Review referred to a similar “likelihood of view” test. In United States v. Brundidge,
In our opinion, the approach touched upon by the Army Court in Brundidge and adopted by the above-cited state court decisions represents a logical extension of the basic principles set forth in Berry and Snyder. Article 134, UCMJ, prohibits acts of sexual intercourse which are “open and notorious.” See Berry,
DECISION
When we apply the lеgal principles, as discussed above, to the facts in this case, we find as a matter of law that the act of sexual intercourse was not public, nor was it “open and notorious.” First, while the act was consummated on a public beach, it occurred after midnight in an unlighted area where visibility was poor. Additionally, that part of the beach was officially closed to the general public. Second, it is clear from the record that it was the
Under these circumstances, we are unwilling to hold that this act of sexual intercourse was likely to be seen by others. Indeed, we find no indication that the act would have been exрected to be viewed under the facts presented. Even in the Government’s view, there is no evidence of record to indicate a likelihood that a third party would have observed the act. Government brief at 1.
Accordingly, the findings of guilty to Charge II and its sole specification alleging an indecent act by forniсating in public are set aside. That Charge is dismissed. All rights, privileges and property of which the appellant has been deprived shall be restored.
Notes
. In United States v. Linnear,
. In Snyder, the court stated that “if a person chooses to use obscene language out of the hearing of other individuals he does not thereby commit аn offense in violation of Article 134.”
. In J.O., the court was interpreting a state indecency statute. Indeed, the vast majority of the cited state court decisions necessarily flow from a statutory basis. The decisions are useful, however, in determining the meaning of a “public act” under Article 134. See United States v. Scoby, supra (where the Court of Military Appeals utilized a similar method of legal analysis).