United States v. Marcum

STATES, Appellee, UNITED MARCUM, Sergeant,

Eric P. Technical Force, Appellant.

U.S. Air

No. 02-0944.

Crim.App. No. 34216. Appeals

U.S. Court of

the Armed Forces.

Argued Oct. Aug.

Decided Appellee: Lau- Colonel

Amicus Curiae Leeker, Margaret Lieutenant Colonel ren B. (on Baines, Captain B. Matthew J. MaClean brief)—for Army, Govern- States Appellate Division. ment opinion of the Judge BAKER delivered the Court.

Contrary pleas, Appellant was con- of dereliction victed officer members un- duty providing alcohol to individuals sodomy, age non-forcible der the by sodomy, assault consummated forcible assault, battery, specifi- and three indecent committing indecent acts viola- cations of 92, 125, 128, and Uni- tion Articles Military Justice [hereinafter form Code UCMJ], 892, 925, 928, §§ and 10 U.S.C. (2000), respectively. Appellant was sen- years, for 10 a dis- tenced to confinement forfeitures, discharge, total and honorable grade. The to the lowest enlisted reduction authority confine- convening reduced the years, approved to six but otherwise ment findings and sentence. the Air Force case reviewed Appeals, affirmed Court of Criminal which findings States and sentence. United Marcum, No. ACM WL 2002). July op. (A.F.Ct.Crim.App. slip following granted of the This Court review BAKER, J., opinion delivered the issues: Court, GIERKE, EFFRON, in which and JJ., ERDMANN, CRAWFORD, joined. C.J., separate concurring opinion filed I ISSUE part dissenting part. and

the result APPELLANT SUFFERED WHETHER (ar- Appellant: Spinner

For WHEN HIS Frank J. ERROR PREJUDICIAL Knott, Beverly Major RE- gued); Colonel B. Ter- TRIAL COUNSEL DEFENSE ry McElyea, Captain L. K. PRIVILEGED COMMUNICA- VEALED Jennifer (on brief). APPELLANT’S Martmck TIONS WITHOUT DURING THE PERMISSION SEN- Appellee: For LeEllen Colonel Coacher APPELLANT’S OF TENCING PHASE Major (argued); R. Rider and Jennifer IN M.R.E. 502 TRIAL VIOLATION OF (on Sigmon Colonel Lance B. Lieutenant AND 511. brief); V. Lieutenant Colonel Robert Combs Taylor Captain C. Smith. II ISSUE F. Appellant: Curiae for Stuart De- Amici THE MILITARY JUDGE lery (argued); Josh and Alison J. WHETHER Goldfoot brief)—for (on THE PAN- ERRED BY INSTRUCTING Nathan The American Civil (on Union, THE Eugene al. R. Fidell EL THAT MAXIMUM SEN- Liberties et brief)—for Military Ex- APPELLANT’S CASE WAS TENCE IN Social Scientists THE LIFE PAROLE WHEN perts. WITHOUT tone, PRESIDENT HAD NOT timing, graphic AUTHORIZED conclude that the THAT FOR APPEL- PUNISHMENT privileged substance of this communication LANT’S OFFENSES. prejudiced Appellant during sentencing. I, light of our decision on Issue we need III parole

ISSUE not decide whether life without punishment sodomy authorized at forcible WHETHER APPELLANT’S CONVIC the time of As a offenses. 125, FOR TION VIOLATING ARTICLE findings, we affirm respect with to the but UCMJ, BY ENGAGING IN CONSENSU respect reverse with to the sentence. (CHARGE II, AL SODOMY SPECIFI 1) I. Issue III BE Article 125 CATION MUST SET ASIDE IN LIGHT THE OF UNITED STATES SU Facts

PREME HOLDING COURT’S IN LAW TEXAS, 558, RENCE V. 539 U.S. Appellant, cryptologic linguist, technical (2003). 2472, 156 L.Ed.2d 508 (E-6), sergeant supervising and the noncom- Addressing order, these of issues out we missioned in a flight officer of Persian-Farsi 125, UCMJ, hold that Article is constitutional speaking intelligence analysts, was stationed applied Appellant. Base, at Offutt Air Force Nebraska. His training supervising duties included air- rights generally Constitutional apply to newly assigned Operations men to the Train- members the armed forces unless ing Flight. terms, express express language Constitution, they inapplicable. are off-duty While Appellant socialized with However, Appellant’s military actions in the flight parties. According airmen from his at context fell autonomy outside the zone of testimony multiple members of his identified protect- Court as a unit, spent night airmen “often” at Appel- Among ed things, Ap- interest. other following parties. lant’s off-base home these pellant sodomy was convicted of non-forcible charges case resulted from alle- with a subordinate airman within his chain of gations by some of these subordinate airmen An prohib- command. Air Force instruction Appellant engaged in consensual and its such sexual conduct between servicemem- activity nonconsensual sexual with them. in differing pay-grades bers and within the same chain of command. This instruction Among offenses, Appellant other provides for potential criminal sanctions charged sodomy with the forcible Senior operation through of Article 92. This in- (SrA) (E-4). H Specifically, Specifi- Airman H, struction evidences that Airman Senior Charge alleged cation II subordinate, inwas “did, Omaha, Nebraska, at or near between position easily where “consent 1 September on or about 1998 and on or Texas, refused.” Lawrence v. about 16 October commit with (2003). 156 L.Ed.2d 508 Senior Airman H Robert O. force and Military Civilian defense counsel violated without consent of the Senior Airman said [hereinafter Rule of Evidence 502 M.R.E.] Robert O. H.” pre-trial twenty-page he submitted a offense, regard charged With SrA H sentencing statement as a exhibit without night drinking testified that after Appellant’s consent. This statement was stayed Appellant’s apartment he at prepared by Appellant for his coun- defense slept H on the couch. SrA further testi- in preparation sel use for trial. The state- point up fied that at some he woke to find ment depicts graphic detail Appellant orally sodomizing Although him. sexual encounters with six members his perform “did testified that he Although Air Force unit. trial all,” oral at testimony sex he testified to [SrA H] recounted much of the same infor- statement, “kissing penis mation contained within the [SrA H’s] we twice.” asked When me, coercion, part time, force, around the that was any any arm around you, use “did actually touching couch.” pressure, intimidation violence?” sir, “No, I and nei- responded, did not lant charged the time of the conduct At Moreover, Appellant H.” did Airman ther H question, were both Appellant and SrA activity that occurred be- that the testified Force, Dep’t of Air Instruction subject to “equally Appellant and SrA H was tween 1996). (May instruction ad- This 36-2909 participatory.” rela- professional unprofessional dresses Dep’t of the Air Force. tionships within the testimony, did not According to SrA H’s he Force, subject to 36-2909 is Air Instruction say anything Appellant at the time through of Arti- operation criminal sanction incident, covers, grabbed but (Failure obey regulation). order or cle torso, pulled up turned them over not admitted Although this instruction was H away Appellant into the couch. SrA trial, Appellant admitted into evidence apartment left the soon after this incident he was “aware during cross-examination that place. SrA H that he didn’t took testified through policy” Air his of an Force and protest at the time because he didn’t know an Air had more than actions he “broken Appellant H also how would react. SrA tes- policy.” Force him tified that actions made seared, angry, and uncomfortable. and members panel A of officers enlisted guilty of forcible sod- Appellant found “not H, According to SrA he later confronted sodomy in omy” guilty but of non-forcible Ap- told Appellant about this incident. He of 125. He was convicted on violation Article pellant, just “I want to make it clear between 21, convening authority May ap- 2000. The thing happen that this sort of ever us doesn’t proved except for the term of his sentence Nevertheless, again.” forgave Appel- SrA H 6,2000. September confinement on lant and SrA H friendship. continued trial, Subsequent by the action con- relationship he his testified that considered vening authority, and the Air Force Court of Appellant type with that of like “a father son case, Appeals’ in this Criminal review brother, relationship big or little brother granted in Law- Supreme Court certiorari type relationship!]]” Subsequent this inci- to Texas, challenging rence v. case the consti- dent, explained Appellant SrA H he how and tutionality criminalizing of a Texas statute together kissed other salsa danced each sodomy. argued same sex Lawrence was on “European in the custom of men.” HSrA 2003, 26, 26, on March and decided June him, bought also told that he loved Appellant petitioned 2003. souvenir, him a t-shirt as a and sent numer- This Court September review on 2002. Appellant expressing his ous e-mails con- granted petition Ap- his on March friendship. tinued regarding pellant’s supplemental issue provided HSrA also testi- ruling in Lawrence was Supreme Court’s mony regarding an incident that occurred granted by August on this Court prior SrA H testified offense. Discussion during up the incident he woke morning top Appellant and he was on of with A Article Text face his near stomach. Article 125 states: testified, side, my laying actually “I was on couch, belly top my of with on almost (a) Any subject person chapter to this who couch but turned a little bit like this copulation engages unnatural carnal towards, my face towards the rest person of same or with another top H living room. Airman was me [on] opposite guilty is sex or with an animal with, moving H facing sodomy. Penetration, me. Airman was however my pelvis against slight, complete which is what area butt is sufficient to of- erection, up.me He had an he had his fense. woke (b) Any person guilty sodomy narrowly found tal must be tailored accom- punished as

shall be a court-martial plish government a compelling interest. The may direct. narrowly argue amici that Article 125 is not reaches, among tailored other because con- Scoby, As we stated in United States duct, consensual, off-base, private, inti- terms, By prohibits every its Article 125 activity mate persons married intercourse, kind of unnatural carnal spouses. Arguing their civilian in the alter- fraud, accomplished whether force or native, quoting the amici do Similarly, with consent. the article does distinguish “dispute good between act committed that the interests order and home, privacy per- of one’s with no discipline, security, and in national are im- present partner, son other than the sexual portant. importance But the of those inter- act a public the same committed in irrelevant, simply ests is there no because place strangers, a group front of who they basis conclude that are even rational- fully apprehend in the nature the act. ly sufficiently related to Article let alone (C.M.A.1978). Thus, 5 M.J. justify law advanced its onerous 125 forbids whether it is consensual right’ burdens on the ‘full ‘con- forcible, homosexual, pub- heterosexual or protected by guarantee duct the substantive ” private. lic or liberty.’ arguments, Under both the am- government ici maintain that the has no le- Arguments B. gitimate compelling military interest in Appellant challenges his conviction on the regulating private conduct. ground recognized that a Laurrence constitu- argues The Government Lawrence is liberty tional intimacy interest in sexual be- applicable military in the consenting private. tween in environment adults argues lant that Article 125 due to separate suffers the the distinct and character of same constitutional deficiencies as the Texas military recognized life from civilian life as statute Lawrence because both statutes Supreme Levy, Court Parker v. 417 private sodomy criminalize consensual acts 733, 2547, 94 41 U.S. L.Ed.2d S.Ct. 439 between adults. further contends (1974). argues The Government further light Supreme that in rejection Court’s Supreme expressly because the Court did not Hardwick, 186, v. of Bowers 478 106 U.S. engaging state that homosexual is 2841, (1986), 92 S.Ct. L.Ed.2d 140 right, a fundamental this Court should ana- conviction the Due violates Process Clause. lyze using 125 rational basis stan- a Appellant argues As 125 that Article standard, Utilizing dard review. this is either unconstitutional on its face or un- Government contends Article 125 is constitu- applied constitutional as to conduct. rationally tional it is because related to curiae,* The amici arguing support legitimate Specifically, state interest. position, that Article assert 125 Government maintains that Article 125 crimi- According unconstitutional on its to face. unaccepta- nalizes conduct that “create[s] amici, Supreme placed Court Law morale, high ble risk to the standards of privacy jurisprudence rence within its line of good discipline, order and and unit cohesion” by overruling effectively Bowers and decid recognized by within the Con- consensual, conduct, ing private, sexual 654(a)(15). gress § 10 U.S.C. including sodomy, constitutionally pro is a Whether conviction must be liberty tected interest. See light Supreme set aside in Court’s U.S. at 2472. As with other S.Ct. holding ques- rights, Lawrence is a constitutional fundamental the amici contend that a Ohio, purporting statute to criminalize a tion novo. v. fundamen- reviewed de Jacobellis * Area, opinion Capital Legal The amici curiae referred are ion the National Lambda Fund, represented sup- in the Brief of Amici Curiae in Defense Education Servicemembers Network, port Appellant Legal on behalf of American Civil Defense and Retired Members of Union, Military. Liberties the American Civil Liberties Un- rule, This, general should counsel 184, 190, as a 12 L.Ed.2d U.S. 84 S.Ct. State, court, by the or a attempts (1964). against relationship meaning of the define the Lajivrence The Decision

C. injury set its boundaries absent or to challenged petitioners in Lawrence The an institution the law or abuse of person constitutionality of a statute crimi Texas protects. sodomy. nalizing sex See 539 U.S. at same Id. provided 2472. This statute S.Ct. Supreme Court this framework Within if he person “[a] commits an offense “The of Bowers rationale overruled Bowers: engages in deviate sexual intercourse with analysis---- careful withstand does Id. at another individual same sex.” decided, it was was not correct when Bowers (quoting Penal S.Ct. 2472 Texas ought today. It not to it is correct 21.061(a) (2003)). §Ann. The Code 577-78, binding precedent.” Id. at remain the stat determined at outset that 106 S.Ct. pro question of due posed ute substantive petitioners, to the Lawrence respect With free as petitioners “whether the were cess: stated: the Court private in the conduct adults who, two The case does involve adults their Due Pro exercise of under the other, and mutual consent from each full cess Clause of the Fourteenth Amendment practices common to a engaged in sexual 564, 123 Id. at the Constitution.” lifestyle. petitioners are “pertinent its beginning point” re private respect for their lives. entitled to stated, view, Supreme Court was Gris their The State cannot demean existence Connecticut, wold destiny by making their or control (1965). 1678, 14 L.Ed.2d 510 Id. Griswold Their private conduct a crime. sexual zone of addressed the a marital liberty Due right to under the Process privacy in the context of a Connecticut law engage gives right them full to Clause proscribing contraception the use of in their conduct without intervention regarding contraception. counseling See 381 of promise the Con- government. “It is 482, liberty at 85 U.S. S.Ct. 1678. This personal is a of stitution that there realm subsequently interest was extended outside liberty government may which the not en- Baird, the marital v. context Eisenstadt legiti- Texas statute furthers no ter.” The 438, 1029, 92 S.Ct. 31 L.Ed.2d 349 justify interest which can its mate state individuals, of (1972)(right married or unmar private personal intrusion into the life ried, to contraceptives) have access to of the individual. Int’l, Carey Population v. 431 Services U.S. 578, (citing 2472 Id. at 123 S.Ct. Planned 678, 2010, 52 L.Ed.2d 675 833, 847, 112 Casey, 505 Parenthood v. U.S. to (1977)(right contraception). distribute See (1992)). 2791, 120 L.Ed.2d 674 S.Ct. Lawrence, 565-66, 123 at U.S. S.Ct. finding Texas statute unconsti- While question as Having framed the one of lib- tutional, Supreme Court stated that erty, Supreme Court indicated that “[t]o present case does not involve minors. “[t]he simply say that the issue Bowers persons It involve be in- does not who right engage in certain sexual conduct jured or situated in rela- coerced who are put the claim the individual for- demeans easily tionships might not where consent at ward[.]” Id. 106 S.Ct. 2841. public does not involve conduct refused. It Supreme also characterized the stat- Court Supreme Court prostitution.” Id. The seeking utes Bowers and Lawrence as or not expressly state whether did that, relationship a personal control represented or illustra- text an exhaustive recogni- whether or not entitled to formal exceptions liberty of to the interest tive list law, liberty identified, in the is within the of tion whether this text was intended punished legislators might affir- persons being suggest to choose without areas where matively this text was legislate, or whether as criminals. i.e., identify scrutiny, intended to do no than areas more ated with strict identification of compelling addressed the Court. Nor did the state interest and narrow tailor- Supreme place squarely analysis Court its ing accomplish the statute to that interest. within a traditional framework for constitu- hand, Supreme On other Court tional review. placed liberty Lawrence within its line of (1) Standard Constitutional Review resting cases on the Griswold foundation. 564-65, See id. at S.Ct. 1678. These cases amici, primary argument, in their con- aspects liberty privacy treated scrutiny apply tend that strict should to this rights, thereby, subjecting fundamental them Court’s review of Article 125 because to the compelling analysis. interest See impinges on a fundamental constitu- Griswold, 1678; U.S. tional interest. This follows from the Carey, amici’s 431 U.S. at Supreme conclusion that “the S.Ct. 2010. With Court ..., regard Supreme overruled Bowers and held the Texas to the Court’s use lan- sodomy prohibition review, unconstitutional because guage attributed rational basis the Due Process Clause the Fourteenth Appellant argue Supreme and the amici protects Amendment a fundamental simply stating Court is that the Texas statute regarding private, adults to make decisions accomplish legitimate does not even inter- conduct, including consensual sexual sod- est, let a compelling alone one. omy.” As a the amici maintain that Indeed, response Supreme Article 125 is unconstitutional because it Court’s decision some courts narrowly compelling tailored to achieve a applied have the rational basis standard of government interest. applied review while other courts have strict contrast, the Government contends the scrutiny. example, Appeals For Court Supreme Court not find a did fundamental ap- of Arizona determined that “the' Court plied explanation without the rational basis overruling Bowers because the test, scrutiny rather than the strict review applied the rational basis standard rights utilized when are im- fundamental “Rather, by review in applying Lawrence. a pinged, hold the Texas statute unconstitu- ‘rational basis standard of review5 to reach Superior tional.” Standhardt Court of their determination Texas statute Arizona, 206 Ariz. 77 P.3d legitimate ‘furthers no state interest which (2003). Whereas court Fields v. justify can its into personal intrusion the District, F.Supp.2d Palmdale School 271 individual,’ private life of Supreme the the 1217, (C.D.Cal.2003), concluded, 1221 n. 7 Court in reaffirmed the to “Many rights, especial- of these fundamental not is a fundamental ly relating those to marital activities and right.” family relationships, by have been classified Although particular within sentences the Supreme ‘right the Court under a broader to Supreme opinion may in Court’s be culled implicit privacy’ that is in the Fourteenth support argument, of the Government’s other Amendment!)]”. may support Ap- sentences extracted to be by The focus the Government and argument. hand, pellant’s theOn one the Supreme lant on the nature Court’s opinion incorporates legal some of no- constitutional test Lawrence is under- typically menclature associated with the ra- standable. Utilization of either the rational tional For basis standard of review. exam- scrutiny might prove test strict basis or well notes, ple, Supreme as the Government challenge dispositive of a facial to Article 125. Court declared Texas statute furthers “[t]he hand, military interest!)]” On the one the interests in legitimate no state See Law- readiness, effectiveness, rence, 578, combat or national at 123 2472. This 539 U.S. S.Ct. security arguably qualify counter-weight is the would as either ra- applied in the rational Moreover, analysis. governmental Supreme compelling basis tional or interests. hand, not apply Court did the nomenclature the other it is less certain that associ- On

205 In our in Lawrence. accomplish not to address narrowly or chose 125 is tailored contextual, view, argues for this framework these interests. review. analysis, rather than facial applied as Supreme expressly state Court did not military apparent in the particularly is This place the test it used. The Court did which context. the Gris- liberty interest Lawrence within (2) Military Context Lawrence Lawrence, 539 U.S. fine of cases. See wold 564-65, at S.Ct. 2472. 123 Griswold have this Court Supreme Court and rights. Howev- Carey address fundamental and women recognized that long “[m]en er, has determined Supreme Court do not leave constitutional Forces Armed privacy are funda- liberty all or interests judicial protection behind safeguards and Lawrence, rights. the Court did mental military they enter service.” when identify liberty interest as expressly 131, Mitchell, 39 M.J. 135 v. States Therefore, right. we a fundamental will States, (C.M.A.1994)(quoting v. United Weiss presume such a fundamental the existence of 163, 194, L.Ed.2d 127 510 U.S. military when the environment J., concurring)). “Our cit (1994)(Ginsburg, 1 con- Supreme Court declined the civilian stripped may not of basic in uniform be izens expressly identify such a fundamental text they have rights simply because doffed right. Weinberger, Goldman v. civilian clothes.” 503, 507, 106 L.Ed.2d S.Ct. U.S. requires searching con Lawrence is What omitted). (1986) (citations As a may inquiry require inquiry. stitutional This Bill consistently applied the this Court has beyond go a court to a determination as Forces, Rights to members of the Armed activity at issue falls within col whether the express except in cases terms of where bring it with umn A—conduct a nature to application inap make such the Constitution interest identified Jacoby, 11 posite. See United States B—factors within column identified 428, 430-31, 246-47 C.M.A. C.M.R. Supreme as its anal Court outside Lawrence (1960)(“[I]t protections that the apparent ysis. analysis beyond The Court’s reached Rights, except in the Bill of those which are presented. immediate facts of the ease by necessary inappli expressly implication This is reflected the Court’s decision cable, to members our armed are available op grounds process of due rule forces.”). posed equal protection. we to hold “Were Equal the statute invalid under the Protec time, At the same these constitutional noted, Clause,” Supreme tion Court may differently to rights apply members might question prohibition “some whether they forces than do to civilians. the armed differently, say, if drawn would valid Parker, at See U.S. S.Ct. prohibit the conduct both between same-sex is, necessity, a specialized “The participants.” different-sex Thus, considering society.” Id. how 2472. The and Fourth Amend- the First Amendment acknowledged emerging “an awareness also context, military in this Court apply ment gives protection to liberty substantial prece- civilian Supreme has relied on Court deciding in to persons adult how conduct dent, con- specifically but has addressed also private pertaining to their lives matters military involving factors life. See textual 572, 123 sex.” Id. at S.Ct. 2472. Priest, 564, 570, v. 21 United States C.M.A. (1972)(“[T]he fac- free At the same time the Court identified 45 C.M.R. tors, delimit, speech in the armed services is not unlimited which it did not brought balance with the place zone of and must be into conduct outside Lawrence Thus, providing an open paramount ef- liberty. door held consideration for the defense of our scope fighting nature fective force courts to address and lower Lawrence, Country.”); v. McCar- as well as see also United States identified (C.M.A.1993)(warrantless limitations, thy, 38 M.J. 398 on contexts factors its based entry military room may anticipated barracks to effectu- Supreme Court not have into apprehension ate did Fourth put not violate conduct demeans the claim the individual Amendment). light military In mis- forward[.]” sion, servicemembers, it is clear that as a S.Ct. 2472. “The State cannot demean their matter, general do share the same auton- destiny making existence or control their Parker, omy as civilians. See 417 U.S. at private sexual conduct a crime.” Id. at 758, 94 S.Ct. 2547. 578, 123 Supreme S.Ct. 2472. Nor did the Court define the interest in Lawrence While Government does not contest preclude a manner that on face its would general proposition that the Constitution military application its to members. applies Forces, to members the Armed argues applies only that Lawrence to civilian rights Constitutional identified Moreover, respect conduct. with to the mili- Supreme generally apply to members tary, the Government contends that Con- military scope they unless text or gress definitively addressed homosexual sod- Therefore, plainly inapplicable. are we con (2000). omy by enacting § 10 U.S.C. application sider Appel of Lawrence to Government, According pursuant to the to However, lant’s conduct. we conclude that Congress’s authority I Article to make rules its application must be addressed context Forces, regulations for the Armed Con- through challenge and not facial to Article gress only prohibited sodomy through princi 125. This view is consistent with but with Article 125 aas back- ple challenges that facial drop, criminal statutes through determined 10 U.S.C. and, are therefore, infrequent” “especial § 654 “best when and are homosexuality, incompatible ly military discouraged.” with ser- Sabri States, 600, 124 1941, 1948, 158 § enacting Congress vice. deter- U.S. (2004). presence mined military setting, “[t]he the armed L.Ed.2d In the persons propen- demonstrates, forces of who understanding demonstrate a as this case an sity or intent military acts culture and mission cautions unacceptable would create risk to the against sweeping pronounce constitutional high morale, good standards of order and may ments that not account for the nuance discipline, and unit cohesion that are the military sup life. This conclusion is also military capability.” essence of 10 U.S.C. ported by general practice this Court’s 654(a)(15). Thus, according § Govern- addressing questions constitutional on an as ment, apply this Court should traditional applied security basis where national principles of Congress’s deference to exer- rights paramount constitutional are both in authority cise of I apply its Article and not Further, terests. because Article 125 ad military. Lawrence dresses both forcible and non-forcible sod omy, challenge a facial reaches too far. however, landscape, is less Clearly, analysis is not at Lawrence issue certain than the suggests. Government respect sodomy. to forcible fog of separate constitutional law settles powers Congress and shared where neither Thus, presents this case to us itself Supreme spoken nor the Court has authorita- challenge to a discrete criminal conviction tively. Congress has indeed exercised its ques based on discrete set of facts. The authority Article I to address homosexual tion this Forces, Court must ask is whether Article sodomy in the Armed but this oc- applied Appellant’s 125 is constitutional as prior curred Court’s constitu- as-applied analysis requires conduct. This analysis tional decision Lawrence and First, questions. consideration of three opera- at time when Bowers as served the Moreover, the conduct accused was found backdrop. tive constitutional the the Supreme guilty committing it accept bring Court of of a nature did the Govern- liberty present ment’s within the identified the characterization of the interest Second, sodomy. Supreme as one of did the The Court Court? conduct stated, say any “To that the in or encompass issue Bowers was behavior factors identified simply Supreme analysis in the certain sexual the Court as outside the where con- relationships in are situated at 123 S.Ct. who in Lawrence? 539 U.S. might easily be refused? See id. Third, rel- sent there additional factors are solely military environment evant the evaluating Appellant’s con- whether When and reach of the Lawrence affect the nature injured might be persons involved who duct liberty interest? in relation- or who were situated or coerced easily might not be re-

ships consent where fused, military signifi- nuance life the of Applied D. Article 125 Constitutional as Is applicable to An Air Force instruction cant. Appellant? included the of the offenses Appellant at time of dereliction Appellant was following proscriptions. the sodomy, duty, specifications forcible three of relationships between Unduly familiar assault, and of specifications three indecent in which one member exercises members committing an specifications of indecent two authority or over supervisory command regard charge the act. addressed With easily unpro- or can be become other Appellant “not appeal, the found members Similarly, as differences fessional. sodomy, guilty non- guilty of forcible but increase, grade absence of even part As sodomy.” forcible relationship, supervisory command or trial, following additional facts contested may risk the rela- there be more surrounding his conduct were elicited: be, perceived be to be tionship or will sodomy act occurred in off- unprofessional because senior members hours; during off-duty no apartment base organizations normally military exer- military present other members of were authority or or indirect cise some direct conduct; time of the junior organizational more influence over E-6 the supervising and noncommissioned members. flight. in his duties included officer His unprofessional, Relationships are whether H, an training supervising and airmen. SrA they off-duty, detract pursued on or E-4, Appellant super- was one of the airmen authority superiors or from the result H was vised. As SrA subordinate of, in, reasonably appearance or create to, within, directly Appellant’s chain of favoritism, position, office or or misuse of command. organizational goals the abandonment of question Ap- first we is whether ask personal for interests. pellant’s bring conduct was a nature to Instruction, Dep’t. of Air 36-2909 Force within the Lawrence Name- interest. Unprofessional Relation- Professional ly, private, did conduct involve 1,1996). 2.2, (May ships, paras. 3.1 activity consensual sexual between adults? reasons, military has consis- For these case, present the members deter- relationships tently regulated between ser- Appellant engaged in mined non-forcible based on certain differences vicemembers sodomy. This occurred off-base prefer- partiality, grade an effort to avoid pri- Appellant’s apartment it occurred in treatment, improper use ential deciding that vate. will assume without We McCreight, rank. one’s See United States sodomy in jury verdict of non-forcible (C.A.A.F.1996). Indeed, M.J. question satisfies the first of our case Dep’t of Air Instruction 36-2909 is Force analysis. applied subject through opera- to criminal sanction question ask is whether

The second we As both the Su- tion Article UCMJ. encompassed recognized conduct nonetheless preme and this Court have any elsewhere, necessity or factors that were of the behavior “The for fundamental in- consequent necessity identified Court as obedience and instance, discipline, may permissi- imposition Lawrence. For did render volved pub- be minors? Did it involve within the that which would conduct involve ble constitutionally outside it.” prostitution? impermissible lic Did it involve conduct Parker, injured or 417 U.S. at 94 S.Ct. 2547. persons who coerced clearly evening. Appellant While servicemembers retain a liber- with- then went absent (AWOL). ty engage interest to in certain intimate sex- out leave After numerous recess- conduct, es, tempered ual pro- “this must be in the court-martial reconvened and military setting a Appellant. based on the mission of the ceeded without See Rule for military, orders, 804(b)(1) the need for obedience of Courts-Martial [hereinafter supremacy.” and civilian United States v. objected Trial R.C.M.]. defense counsel Brown, (C.A.A.F.1996). 45 M.J. proceeding Appellant, ultimately without but sentencing argument made a to members light of Air Force Instructions at the included, exhibit, sentencing that aas an time, Appellant might charged have been unsworn from Appellant. statement awith violation of Article 92 for failure to However, a follow lawful order. the Govern- The unsworn a compilation statement was proceed ment chose to under Article 125. processed Appellant word notes that had Nonetheless, Appellant’s the fact that con- prepared prior for his defense counsel might duct have violated Article 92 informs trial. submitted stat- affidavit analysis our as to whether con- ing, “I have examined this document and duct fell within the liberty. Lawrence zone of it is attorney-client believe covered privilege, hereby which I invoke. At no time supervising theAs offi- noncommissioned my Idid authorize defense counsel to release cer, Appellant in position responsi- was a it anyone, It court out court. was bility and command within his unit re- prepared eyes for exclusively. They spect to supervised his fellow He airmen. permission never asked me for to release it and rated H. Appellant SrA also testified permission to offer it as an unsworn state- he knew he should a Marcum, ment in court.” No. ACM relationship sexual super- with someone he 1822283,slip op. WL circumstances, vised. Under such Ap- which pellant acknowledged prohibited by was Air single spaced twenty-page This document H, policy, Force SrA a subordinate airman was divided into six sections. Each section command, within chain of was a referenced different male airman with person might “who or who coerced” whom alleged to have had relationship!] “situated [a] where consent sexual contact. The document for described Lawrence, easily be refused.” lawyer professional the nature of his Thus, U.S. at 123 S.Ct. 2472. based on airman, off-duty relationship with each in- factor, Appellant’s conduct fell outside cluding regarding Appellant’s details level of liberty interest identified attraction each individual airman as well result, As Court. we need consider the graphic as descriptions step Nor, analysis. third our Lawrence uncharged sexual contact between given our determination that con- and each airman. liberty duct fell outside interest identified The introduction this statement caused impact, need we decide what if counsel, judge to ask “I defense any, § U.S.C. would have just want to make sure that that’s the means constitutionality applied you present which would like to that to settings. other you’re the court members and not interested pro- conduct was outside the in providing any other fashion. Is recognized interest tected Law- that correct?” re- Civilian defense counsel ; contrary rence also was to Article 125. correct, sponded: “That’s Your Honor. It is As a Article 125 is constitutional as lengthy rather and I impact believe the applied Appellant. statement, the contents of this each Sentencing II. I: Issue Statement copy provided member the court is they individually, this and can read it I think Facts carry impact it will it was subsequent After the court argument, members announced their intended to take.” In findings, the court-martial recessed for the civilian no defense counsel made reference

209 statement, person from or the comes a counsel that evidence the unsworn whereas trial arguing when by privilege.” Ankeny, to the statement referred the source not bound about lack of contrition. (quoting Manual Courts- M.J. at 16 30 Martial, States, 1969, para. 151a United he was Appellant maintains that because (Rev. ed.)). lawyer “A shall not reveal infor- have proceedings he did not absent the relating representation to a mation the attorney-client opportunity the to assert his gives con- the informed privilege prior offering the client unless client to defense counsel summary sent, as an unsworn statement. impliedly written authorized the disclosure is argues even if un- Appellant also that the representation, or the carry to out the order him, was to sworn statement intended benefit by permitted this otherwise [is disclosure unilaterally had no defense counsel basis Dorman, v. 58 M.J. States rule.]” United attorney-client There- privilege. waive the (C.A.A.F.2003)(quoting 298 Model Rules fore, Appellant M.R.E. contends that 1.6(a) (2003)(emphasis of Profl R. Conduct 511 were violated he never waived because added)). attorney-client privilege nor authorized is that Military law clear the decision his to utilize written defense counsel summary. personal an make unsworn statement sentencing proceed- During the accused. that Appellant The Government asserts may “testify, make an un- ings, an accused opportunity to his was not denied the assert statement, extenuation, sworn or both attorney-client privilege because by presented matters mitigation or to rebut by opportunity going waived this absent 1001(c)(2)(A). prosecution[.]” If leave. a R.C.M. without As the Government implicitly contends defense counsel an to make an unsworn accused chooses summary. authorized disclose the written statement, “may by he not be cross-examined suggests The Government also upon upon trial it or examined counsel unsworn under lant’s statement does fall court-martial____ by the The unsworn exclusionary rule set forth in M.R.E. written, both, oral, may be statement or 511(a) because defense counsel introduced accused, counsel, by by may be made or Finally, the statement on behalf. 1001(c)(2)(C). “right This both.” R.C.M. argues Appellant the Government waived by military allocution convicted of member any privilege might have existed with precept a criminal offense is a fundamental regal'd summary he tes- written justice.” v. Pro- United States during to its tified contents defense’s vost, (C.M.A.1991). 32 M.J. case. right make an “accused’s an Because Discussion ... unsworn statement ‘is a valuable prejudicial er Whether suffered long recognized by military been [that has] his ror when trial counsel defense revealed ‘generally that has consid custom’ and been during privileged communication the sentenc unrestricted,”’ Grill, v. ered United States ing question law phase trial is mixed 132 (C.A.A.F.1998)(citing 48 M.J. United fact de novo. v. reviewed United States (C.M.A. Rosato, v. M.J. States (C.M.A.1990). 10, 10 Ankeny, 30 M.J. 1991)), “not it to this Court will allow or “Evidence of a statement other disclo- eroded,” Party undercut or States privileged sure of is not admissible matter (C.M.A.1990). ka, As 30 M.J. against privilege if the holder disclo- indicated, previously “an accused Court has compelled erroneously or made sure was to make an statement.” Ro elects unsworn opportunity for the without holder sato, Thus, regardless M.J privilege privilege.” to claim M.R.E. is made whether the unsworn statement “[Ejvidence 511(a). of such a communication presented for accused the accused or appears not be unless it should received counsel, to make the unsworn privilege person has been waived personal government to the benefit of it statement is accused. entitled Therefore, ity description, if an for accused is absent his actions. Within his right without leave his to make an unsworn Appellant provided sexually explic- numerous prior statement is forfeited unless to his testimony, details not contained in his trial absence he authorized his counsel to make as, as well critical comments victims. specific statement on his behalf. Al Although Appellant’s testimony trial was may though refer defense counsel to evi graphic, and of the the tone substance sen- presented during dence at trial his sentenc tencing explicit. was statement more ing may argument, he an not offer unsworn containing subject statement material to the Moreover, repeatedly trial counsel re attorney-client privilege without waiver of ferred to unsworn dur statement privilege by his client. ing sentencing argument. his Trial counsel argued, “They are And the victims. when though Appellant right

Even waived his you Sergeant read Marcum’s statement re present during be sentencing being volun- absent, you you member that. And when tarily see—when attorney- he did not waive his privilege. Appellant’s client read how attacks people affidavit demon- he came did, Ap- strates that defense counsel never asked you forward to tell what he remember pellant permission for to use the written yourself, and professional ask who is the Thus, summary. by submitting Appellant’s Sergeant this case? Marcum victimizes statement, summary written as an unsworn through those airmen once and then the tes subject defense counsel revealed material to timony through you the statement attorney-client privilege without receiv- have, victimizing again. he is those airmen ing appropriate privilege an this waiver of Pay special attention to his comments con Appellant. cerning Further, trial [M].” Airman counsel members, you reminded the “As will read in case, question harder The how statement, Sergeant Marcum’s he can’t even ever, Appellant right is whether waived his admit to what he has done.” Defense coun confidentiality through trial testimony. his sel did not refer the statement at all Appellant If did not his waive confi during sentencing argument. dentiality, this Court decide must whether Appellant prejudiced by was the use circumstances, of the Under these we find that though Appellant statement even testified to Appellant did not waive his to confiden- great deal information contained Further, tiality testimony. through his trial finding within the statement. “A or sentence Appellant prejudiced his trial was de- may of court-martial held incorrect privileged fense counsel revealed communica- ground of an error of law unless the sentencing during tions without materially prejudices error the substantial permission. 59(a), UCMJ, rights of an accused.” Article Issue II: Without Parole Life 859(a) (2000). § U.S.C. con tends the summary admission his written May sentencing occurred on prejudiced during sentencing him because it military judge 2000. The instructed the inflamed the members and resulted parole members that life without was the more sentence he severe than have punishment Appel- maximum authorized for Moreover, Appellant otherwise received. subsequently lant’s offenses. was if suggests prepared he had an unsworn offenses, including convicted of various non- sentencing statement for it would have been sodomy, forcible for which the maximum au- ultimately presented different what than years. thorized confinement was five by his defense counsel. included, alia, approved lant’s sentence inter years. light a term of confinement for six We carried his believe has bur- I, of our Issue decision on we need decide Throughout den on both counts. the written parole an author- whether life without summary, Appellant graphically described punishment ized at the surrounding forcible circumstances his relation- ships responsibil- with the victims time of offenses. and denied privilege the holder of opportunity for Decision privilege is “The privilege.” claim the Air of the United States decision commu encourage ‘fulland frank intended Appeals of Criminal is affirmed Force Court attorneys clients nication between findings, but reversed respect with thereby public interests promote broader respect to the The sentence sentence. of law the administra in the observance of trial is returned is set aside. record ”3 justice.’ tion Air of the Judge Advocate General author- rehearing Force. A on sentence is Nevertheless, equally it is well-established ized. privileged if it is intended material is not In party.4 a third United to be disclosed to Grill,5 championed the v. this Court States CRAWFORD, Judge (dissenting on Chief to make an unsworn state accused’s concurring in result on Issue Issue I and for Courts-Mar pursuant to Rules ment III): 1001(c)(2)(C)[hereinafter In R.C.M.]. tial Appellant’s I. Counsel’s Release of Defense Grill, Air States keeping with United Written Statement Unsworn 3.1(D) on promulgated Air Force Rule Force 1, 2000, give May requiring that the defense majority’s disagree I with the conclusion days’ notice of releasing Ap- at least three counsel erred the Government defense First, Al statement. pellant’s written statement. defense intent to submit an unsworn repealed, though declaration of intent submit has it counsel’s rule since been es- Appellant’s exhibit as unsworn statement Appellant’s time court- effect at the privi- the statement was not martial, and, tablishes accordingly, counsel defense Moreover, leged place. first even presumably gave this case the Government is assuming privileged, the statement was required of his to submit an notice intent clear from the record that himself Appellant’s on behalf. unsworn statement impliedly privilege, waived the as well as disclosure, required making this defense privi- authorized defense counsel to waive the displayed intent counsel lege and release the statement on party a third to disclose the statement reasons, respectfully For these I behalf. and, doing, in so established that state majority’s from the resolution of Is- dissent privileged. ment was not I. sue supported This conclusion further expression of intent as to Appellant’s own Attorney-Client Privilege A. use of the statement. Be- defense counsel’s lant’s Statement Appellant went absent without leave fore (AWOL), extensively counsel used defense It “[a] is well-established that client has to cross-exam- Appellant’s statement trial prevent privilege to refuse to disclose and to witnesses. voiced ine Government any disclosing person other confidential objection to defense counsel’s use of the no purpose of fa communications made for manner, may we statement in this there- professional legal cilitating the rendition of client____”1 reasonably Appellant gave assume that fore Moreover, “[e]v services to with full the statement to defense counsel idence of a statement or other disclosure knowledge and intent the statement against matter privileged is not admissible would, in a left counsel’s if manner to defense privilege of the holder disclosure discretion, compelled erroneously Having released at trial. done or was made without be States, See, 502(a) e.g., Military F.3d 4. Cavallaro United [hereinafter Rule Evidence (1st Cir.2002)("Generally, disclosing M.R.E.]. 246-47 attorney-client party to a communications third 511(a). 2. M.R.E. privilege.”). undermines the States, U.S. 3. Swidler & Berlin v. United (1998) 141 L.Ed.2d 379 (C.A.A.F.1998). 48 M.J. 131 States, (quoting Upjohn U.S. Co. v. 383, 389, (1981)). 66 L.Ed.2d 584 AWOL, place, appellant so the first cannot now trial coun went left his attorney-client privilege unquestionably position claim that should sel difficult prevented what, having have the statement’s if anything, release. to decide to offer during

as an unsworn statement the sentenc ing party appellant’s court-martial.”9 B. Waiver Statement’s circumstance, Facing this trial defense coun Privilege certainly implied authority sel had assuming privi Even the statement was privi submit behalf otherwise leged, it is well established that an accused leged Appel matters in an effort to defend may attorney-client privilege. waive the If successfully possible. Additionally, lant as voluntarily concerning accused “testifies] misconduct, Appellant, his own forfeited a privileged matter ... or communication any object to counsel’s use of the privilege [the accused] waive[s] to which he statement. may pertaining she entitled confidential matter or communication.”6 Ac Appellant’s II. Conviction Non-Forcible I

cordingly, would that hold when Sodomy Light in Lawrence Texas “voluntarily significant part a testifies about of the matters in” contained the released III, agree majority’s As Issue I with the statement, any challenge he waived future Appellant’s conclusion that conviction should grounds the on statement’s release the not be reversed under Lawrence v. Texas.10 attorney-client defense counsel violated disagree I majority’s assump But with the above, vein, privilege.7 this as noted tion that conduct within falls record clear that is defense counsel further protected liberty in interest enunciated Law used the statement’s content in his cross- rence. There are factual distinctions be Ap examination of Government witnesses. petitioners’ tween offense in Lawrence pellant present points at these in the offense in at the case bar. trial, objections yet voiced no to defense differences, significant Because of I these use “privileged” counsel’s of the statement. hold that this is not a would Lawrence case assuming Appellant

Even ques did not himself day and would reserve another attorney-client “[e]xcept privilege, applies waive the tions whether and how Lawrence military. to the or extent the client’s instructions The factual differences be special authority, limit that a circumstances tween Lawrence and case are lawyer impliedly striking. is authorized make dis The offense of with which appropriate closures about a client when in petitioners in Lawrence were carrying representation.”8 consensual, out the The facts in occurred the context of a adult present exactly relationship. the instant case one such noted at the outset Court arrest, aptly opinion circumstance. As not the lower court of its that at the of their time unpublished opinion, ed in petitioners its he in in “[A]fter Lawrence were Mr. M.R.E, 510(b). Smith, client); by Stephen Salzburg 6. See also States v. thorized" et A. 114, (C.M.A. 1991)(observing 33 118 M.J. Federal Manual Rules Evidence al.. (8th ed.2002); Henry § "an accused who about dis 501.02[5][k][ii] testifies matters John communication, privileged Wigmore, cussed a rather Evidence in Trials at Law Common ed.1961). disclosing portion privi (McNaughton § than an actual at 633 This 2326 im- communication, leged privilege”). authority duty plied waives is consistent with counsel’s a to act at all times client’s best interest. See Marcum, Godshalk, 487, 34216, 7. United States v. No. ACM United States v. M.J. 1822283, slip op. (C.A.A.F.1996)(noting that 2002 WL some disclosures finding attorney attorney-client (A.F.Ct.Crim.App.2002)(presenting breach do not 66(c)). privilege attorney acting fact if the the client’s in accordance with Article interest). best 8. ABA Model Rules Conduct 1.6 of Prof’l Rule Marcum, ed.)(mirrored (2004 cmt No. ACM 2002 WL Air Force Rule of 1.6); slip op. at 6. Prof'l Conduct also United States v. see Province, (C.A.A.F.1996)(hold 45 M.J. ing L.Ed.2d that counsel's disclosure of information relin 10. 539 U.S. quished "impliedly to him the client was au- oth- This followed two private, respond. would event engaging apartment, Lawrence’s between of sexual contact er incidents act.11 The Court reiterat consensual sexual H, which involved lant Airman and Senior shortly context thereafter: ed factual evenings Ap- dancing, touching and petitioners were at the time of “The adults H had been out pellant Airman and Senior alleged conduct was offense. Their drinking socializing. private consensual.”12 At the conclusion again empha opinion, its the Court once in the Clearly, Appellant’s occurred offense relationship with a subor- of a casual peti factual context of context specific sized too that he was dinate who testified airman tioners’ acts: cry a far frightened protest. This is present case not involve minors. does relationship, adult born the consensual persons might It involve who does not choice, personal which charac- intimate and injured coerced or are situated who petitioners’ behavior Lam'ence. terized the might relationships where consent not eas Indeed, pre- concerned offense ily public It not involve be refused. does cisely stated Law- what in prostitution. It does not conduct individual, rence not concern: an Senior did government give volve whether must coerced, H, might have been Airman who recognition any relationship formal easily where consent situation refused, given H’s have Airman persons seek to enter. The been Senior professional position. subordinate Senior who, case two full does involve adults his fear of re- expressed Airman H himself other, and mutual consent from each en officer, jecting superior, noncommissioned practices gaged in sexual common to a at work. This supervisor who in fact his was lifestyle.13 certainly case did involve “two adults not Indeed, petitioners’ nature of rela the the mutual consent with full and [who acted] tionship as described the Court was cen sum, act other.” In for which each tral to that the the Court’s conclusion State Appellant specification 1 of was convicted “ may petitioners’ not curtail the ‘intimate Charge of and II was the kind mutual personal and choices central to act in the context of which the Su- [which are] intimate ”14 preme Court decided Lawrence. personal dignity autonomy.’ [their] and punitive An Article within the enumerated surrounding Appellant’s The facts offense UCMJ, provides: Article strikingly Appellant, are different. a non- officer, convicted, in perti- commissioned was (a) Any person subject chapter to this who part, sodomy nent of non-forcible with Senior engages copulation in unnatural carnal H, Appellant person oppo- Airman same supervised whom in his with another guilty site or with animal is of sex an Appellant work unit. was not involved Penetration, sodomy. slight, however H, relationship romantic with Senior Airman complete the offense. sufficient petitioners were as in Lawrence. On the (b) contrary, Appellant’s Any guilty sodomy offense occurred after a of person found may punished shall be as a court-martial night drinking of H when Senior Airman direct.15 couch, only wearing “crashed” on T-shirt, boxer and a and awoke to find shorts pre- President Article 36 authorizes the him. Appellant performing sex on oral Sen- proof[] arising of for scribe “modes eases protest H ior Airman testified that he did under” “which ... punitive Articles shall apply principles law and the rules of Appellant’s action fear of how of (quoting 14. Planned 11. Id. at 123 S.Ct. 2472. Id. at S.Ct. Casey, Parenthood Southeastern Pa. v. of 833, 851, (1992)). at 112 S.Ct. 2791 12. Id. 125, UCMJ, (2000). § 925 Id. 15. 10 U.S.C. Article Thus, although specification Ap- evidence!.]”16 Article 125 In reference to which pellant challenges appeal, in- general parameters judge outlines the of sod structed the members on the lesser-included omy military, charge offense in the and sodomy of specifically offense as non-forcible findings in specific each case describe the follows: violated, manner which Article 125 was

pursuant Certainly, to Article 36. the modes charged, sodomy, The offense forcible and proof charge findings of described the lesser of included offense non-forcible sodomy an may primarily of Article differ 125 case differ that the offense substantial charged element, requires, an ly reason, as essential from case I to case. For this will you beyond that convinced a reasonable only consider to the extent sodomy that the doubt act was done proscribes the conduct for which without consent Senior Air- convicted, force charged was described H, whereas, man the lesser of- included charge findings specification under does not such fense include an element. Charge II.17 added.) above, (Emphasis As noted Lawrence, petitioners Unlike who guilty found Appellant members of this less with, of, charged were both and convicted offense, specifica er-included instead of the sodomy any consensual without evidence of charged. Appellant argues tion as now force, Appellant charged with three sodomy this conviction of non-forcible specifications sodomy “by with force and essentially a conviction consensual sod II). (Charge out consent” under Article 125 omy. contrary, On the I would conclude charges These probable were based on cause although the finding of non-forcible general committed the offense was not conviction the offense described in Article 125 with the ele added sodomy, did it forcible neither establish con Congress ment of force.18 has dictated sent. Unlike in which there was if guilty even is found accused whatsoever, finding no evidence of force charged, offense as inmay, accused simply case showed that the members alternative, guilty be found “of an offense beyond not were a convinced reasonable necessarily included offense sodomy that the doubt act of was done charged!.]”19 Accordingly, military judge words, force and without consent—in other instructed the members on the includ lesser simply that the evidence of force insuffic ed offenses available for each of finding negate prob the three ient.20 This not did specifications sodomy supported Appel able cause of force that under the forcible charge, it lant’s nor did establish charge, sodomy, consent. including at non-forcible Indeed, not, trial, Appellant prior did tempted sodomy, forcible assault with the move dismiss or amend the forcible sod assault, sodomy, intent to commit indecent omy charge for lack of evidence of force. by battery. and assault consummated a ultimately members Appellant convicted this Given factual context of (specification 1), sodomy non-forcible forcible charge, why is obvious this is not a Law- sodomy (specification 2), as and as following diagram rence case. The demon- battery (specifica sault a consummated truly what strates this case is about. theOn 3). tion purely far left is the consensual case as UCMJ, cused); Miller, (2000). § 16. Article 10 U.S.C. States v. M.J. 307(b)(2) (C.M.A.1991)(finding R.C.M. im- plicitly requires probable support cause to 733, 760, Levy, See 17. Parker v. 94 S.Ct. accused). against charges (1974)(noting 41 L.Ed.2d 439 the Court's repeated reluctance strike down a statute in its 79, UCMJ, (2000). entirety § are a when there number of situations to 19. 10 U.S.C. might constitutionally ap- which it otherwise be plied). Taylor, 20. Ex Parte S.W.3d See 447 n. J., (Tex.Crim.App.2002) (Hervey, dissenting)(dis- 307(b)(2) (outlining prerequi- tinguishing general acquittal 18. See R.C.M. verdict of from evidence). bringing charges against guilty sites for an ac- verdict due to insufficient Lawrence; probable cause to believe with because there was on the far is a case committed forceful sod- beyond a rea- had conviction for forcible 302(c). omy. middle R.C.M. doubt. This case falls in the sonable short, ther, beyond senior go was a noncommis one does need to supervised officer who and rated sioned language the facts of case and the this Thus, posi victim was not in a victim. Appel opinion Lawrence to conclude that easily ... ref tion where “consent lant’s conduct did not fall within the date, finally, par And to this used.”22 Certainly interest set forth Lawrence. probable ties have not contested cause factually distinguishable case is forcible believe that committed Lawrence it does “involve two because sodomy. adults, who full and mutual consent other, engaged practices from each reasons, sexual I concur in For these the result lifestyle.”21 common to a homosexual Fur- III. to Issue Id. 22. 539 U.S.

Case Details

Case Name: United States v. Marcum

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 23, 2004

Citation: 2004 CAAF LEXIS 832

Docket Number: 02-0944/AF

Court Abbreviation: C.A.A.F.