CORE CRIMINAL LAW SUBJECTS: Crimes: Article 125 - Sodomy

2008 (Transition)


United States v. Wilson, 66 M.J. 39 (there is no mistake of fact defense available with regard to the child’s age in the Article 125, UCMJ, offense of sodomy with a child under the age of sixteen).

 
2005


United States v. Stirewalt, 60 MJ 297 (constitutional challenges to Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence v. Texas must be addressed on an as applied, case-by-case basis; there is a tripartite framework for addressing Lawrence challenges within the military context: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court?  Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in
Lawrence? and, Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?). 

 

(where consensual sodomy occurred between a commissioned officer department head and a subordinate enlisted crew member, and where this conduct was prohibited by Coast Guard regulations and policy, the conduct fell outside any protected liberty interest recognized in Lawrence and was appropriately regulated as a matter of military discipline under Article 125; thus, Article 125 was constitutional as applied).

 

(by its terms, Article 125 prohibits every kind of unnatural carnal intercourse, whether accomplished by force or fraud, or with consent; similarly, the article does not distinguish between an act committed in the privacy of one’s home, with no person present other than the sexual partner, and the same act committed in a public place in front of a group of strangers, who fully apprehend in the nature of the act; thus, Article 125 forbids sodomy whether it is consensual or forcible, heterosexual or homosexual, public or private).  

 

United States v. Marcum, 60 MJ 198 (the application of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct charged under Article 125, UCMJ, must be addressed in context and not through a facial challenge; the question this Court must ask is whether Article 125 is constitutional as applied to the charged conduct; this as-applied analysis requires consideration of three questions:  First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court?  Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence?  539 U.S. at 578.  Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?). 

 

(in this case, the prohibition against non-forcible sodomy in Article 125, UCMJ, did not violate due process as applied to the accused where the accused was convicted of non-forcible sodomy with a subordinate servicemember who he supervised and rated as a supervising NCO; the accused’s conduct fell outside the liberty interest in private, consensual sexual activity between adults because his conduct was with a subordinate servicemember within his chain of command who might be coerced or who was situated in a relationship where consent might not easily be refused).

United States v. Banker, 60 MJ 216 (this Court has never recognized the ability of a child under the age of 16 to legally consent to sexual intercourse or sodomy). 


2002


United States v. Quintanilla
, 56 MJ 37 (findings of guilty of forcible sodomy were legally sufficient; in light of the military judge’s instructions on tender years and incapacity due to sleepiness, a rational trier of fact could reasonable have determined on the basis of the evidence that the sexual contact described by the victim occurred without his consent while he was in the process of wakening, and that the victim took steps to terminate the contact once he became aware of it).


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