United States v. Marcum , 60 M.J. 198 ( 2004 )

UNITED STATES, Appellee
v.
Eric P. MARCUM, Technical Sergeant
U.S. Air Force, Appellant
No. 02-0944
Crim. App. No. 34216
United States Court of Appeals for the Armed Forces
Argued October 7, 2003
Decided August 23, 2004
BAKER, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, AND ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a separate opinion concurring in the result in part and
dissenting in part.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Colonel Beverly
B. Knott, Major Terry L. McElyea, and Captain Jennifer K.
Martwick (on brief).
For Appellee: Colonel LeEllen Coacher (argued); Major Jennifer
R. Rider and Lieutenant Colonel Lance B. Sigmon (on brief);
Lieutenant Colonel Robert V. Combs and Captain C. Taylor Smith.
Amici Curiae for Appellant: Stuart F. Delery, Esq. (argued);
Josh Goldfoot, Esq. and Alison J. Nathan, Esq. (on brief) — for
The American Civil Liberties Union, et. al. Eugene R. Fidell,
Esq. (on brief) — for Social Scientists and Military Experts.
Amicus Curiae for Appellee: Colonel Lauren B. Leeker,
Lieutenant Colonel Margaret B. Baines, Captain Matthew J.
MacLean (on brief) — for the United States Army, Government
Appellate Division.
Military Judge: S. A. Gabrial
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Marcum, No. 02-0944/AF
Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by officer
members of dereliction of duty by providing alcohol to
individuals under the age of 21, non-forcible sodomy, forcible
sodomy, assault consummated by a battery, indecent assault, and
three specifications of committing indecent acts in violation of
Articles 92, 125, 128, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 892, 925, 928, and 934 (2000),
respectively. Appellant was sentenced to confinement for 10
years, a dishonorable discharge, total forfeitures, and
reduction to the lowest enlisted grade. The convening authority
reduced the confinement to six years, but otherwise approved the
findings and sentence.
The case was reviewed by the Air Force Court of Criminal
Appeals, which affirmed the findings and sentence. United
States v. Marcum, No. ACM 34216, slip op. (A.F. Ct. Crim. App.
July 25, 2002). This Court granted review of the following
issues:
ISSUE I
WHETHER APPELLANT SUFFERED PREJUDICIAL ERROR WHEN HIS TRIAL
DEFENSE COUNSEL REVEALED PRIVILEGED COMMUNICATIONS WITHOUT
APPELLANT’S PERMISSION DURING THE SENTENCING PHASE OF
APPELLANT’S TRIAL IN VIOLATION OF M.R.E. 502 AND 511.
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ISSUE II
WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL
THAT THE MAXIMUM SENTENCE IN APPELLANT’S CASE WAS LIFE
WITHOUT PAROLE WHEN THE PRESIDENT HAD NOT AUTHORIZED THAT
PUNISHMENT FOR APPELLANT’S OFFENSES.
ISSUE III
WHETHER APPELLANT’S CONVICTION FOR VIOLATING ARTICLE
125, UCMJ, BY ENGAGING IN CONSENSUAL SODOMY (CHARGE
II, SPECIFICATION 1) MUST BE SET ASIDE IN LIGHT OF THE
UNITED STATES SUPREME COURT’S HOLDING IN LAWRENCE V.
TEXAS, 123 S.CT. 2472 (2003).
Addressing these issues out of order, we hold that Article
125, UCMJ, is constitutional as applied to Appellant.
Constitutional rights generally apply to members of the
armed forces unless by their express terms, or the express
language of the Constitution, they are inapplicable. However,
Appellant’s actions in the military context fell outside the
zone of autonomy identified by the Supreme Court as a protected
liberty interest. Among other things, Appellant was convicted
of non-forcible sodomy with a subordinate airman within his
chain of command. An Air Force instruction prohibits such
sexual conduct between servicemembers in differing pay-grades
and within the same chain of command. This instruction provides
for potential criminal sanctions through operation of Article
92. This instruction evidences that Senior Airman H,
Appellant’s subordinate, was in a military position where
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“consent might not easily be refused.” Lawrence v. Texas, 539
U.S. 558, 578 (2003).
Civilian defense counsel violated Military Rule of Evidence
502 [hereinafter M.R.E.] when he submitted a twenty-page pre-
trial statement as a sentencing exhibit without Appellant’s
consent. This statement was prepared by Appellant for his
defense counsel to use in preparation for trial. The statement
depicts in graphic detail Appellant’s sexual encounters with six
members of his Air Force unit. Although Appellant’s trial
testimony recounted much of the same information contained
within the statement, we conclude that the timing, tone, and
graphic substance of this privileged communication prejudiced
Appellant during sentencing.
In light of our decision on Issue I, we need not decide
whether life without parole was an authorized punishment for
forcible sodomy at the time of Appellant’s offenses. As a
result, we affirm with respect to the findings, but reverse with
respect to the sentence.
I. Issue III Article 125
Facts
Appellant, a cryptologic linguist, technical sergeant (E-
6), and the supervising noncommissioned officer in a flight of
Persian-Farsi speaking intelligence analysts, was stationed at
Offutt Air Force Base, Nebraska. His duties included training
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and supervising airmen newly assigned to the Operations Training
Flight.
While off-duty Appellant socialized with airmen from his
flight at parties. According to the testimony of multiple
members of his unit, airmen “often” spent the night at
Appellant’s off-base home following these parties. The charges
in this case resulted from allegations by some of these
subordinate airmen that Appellant engaged in consensual and
nonconsensual sexual activity with them.
Among other offenses, Appellant was charged with the
forcible sodomy of Senior Airman (SrA) (E-4).
Specifically, Specification 1 of Charge II alleged that
Appellant “did, at or near Omaha, Nebraska, between on or about
1 September 1998 and on or about 16 October 1998, commit sodomy
with Senior Airman H by force and without
consent of the said Senior Airman H.”
With regard to the charged offense, SrA H testified
that after a night of drinking with Appellant he stayed at
Appellant’s apartment and slept on the couch. SrA H
further testified that at some point he woke up to find
Appellant orally sodomizing him. Although Appellant testified
that he “did not perform oral sex on [SrA H] at all,” he
testified to “kissing [SrA H] penis twice.” When asked
“did you, at any time, use any force, coercion, pressure,
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intimidation or violence?” Appellant responded, “No, sir, I did
not and neither did Airman H.” Moreover, Appellant
testified that the activity that occurred between Appellant and
SrA H was “equally participatory.”
According to SrA H’s testimony, he did not say
anything to Appellant at the time of the charged incident, but
grabbed the covers, pulled them up over his torso, and turned
away from Appellant into the couch. SrA H left the
apartment soon after this incident took place. SrA H
testified that he didn’t protest at the time because he didn’t
know how Appellant would react. SrA H also testified
that Appellant’s actions made him scared, angry, and
uncomfortable.
According to SrA H, he later confronted Appellant
about this incident. He told Appellant, “I just want to make it
clear between us that this sort of thing doesn’t ever happen
again.” Nevertheless, SrA H forgave Appellant and
continued their friendship. SrA H testified that he
considered his relationship with Appellant like that of “a
father type son relationship or big brother, little brother type
relationship[.]” Subsequent to this incident, SrA H
explained how he and Appellant salsa danced together and kissed
each other in the “European custom of men.” SrA H also
told Appellant that he loved him, bought him a t-shirt as a
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souvenir, and sent numerous e-mails to Appellant expressing his
continued friendship.
Appellant and SrA H also provided testimony
regarding an incident that occurred prior to the charged
offense. SrA H testified that during the incident he
woke up in the morning and he was on top of Appellant with his
face near Appellant’s stomach. Appellant testified, “I was
laying on my side, actually almost on top of the couch, with my
belly on the couch but turned a little bit like this towards,
with my face towards the rest of the living room. Airman
H was [on] top of me with, facing me. Airman H
was moving his pelvis area against my butt which is what woke me
up. He had an erection, he had his arm around me, around the
part that was actually touching the couch.”
At the time of the charged conduct in question, Appellant
and SrA H were both subject to Dep’t of the Air Force,
Instruction 36-2909 (May 1, 1996). This instruction addresses
professional and unprofessional relationships within the Air
Force. Dep’t of the Air Force, Instruction 36-2909 is subject
to criminal sanction through operation of Article 92 (Failure to
obey order or regulation). Although this instruction was not
admitted into evidence at trial, Appellant admitted during
cross-examination that he was “aware of an Air Force policy” and
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that through his actions he had “broken more than an Air Force
policy.”
A panel of officers and enlisted members found Appellant
“not guilty of forcible sodomy but guilty of non-forcible
sodomy” in violation of Article 125. He was convicted on May
21, 2000. The convening authority approved his sentence except
for the term of confinement on September 6, 2000.
Subsequent to the trial, action by the convening authority,
and the Air Force Court of Criminal Appeals’ review in this
case, the Supreme Court granted certiorari in Lawrence v. Texas,
a case challenging the constitutionality of a Texas statute
criminalizing same sex sodomy. Lawrence was argued on March 26,
2003, and decided on June 26, 2003. Appellant petitioned this
Court for review on September 23, 2002. This Court granted his
petition on March 10, 2003. Appellant’s supplemental issue
regarding the Supreme Court’s ruling in Lawrence was granted by
this Court on August 29, 2003.
Discussion
A. Article 125 Text
Article 125 states:
(a) Any person subject to this chapter who engages in
unnatural carnal copulation with another person of
the same or opposite sex or with an animal is guilty
of sodomy. Penetration, however slight, is
sufficient to complete the offense.
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(b) Any person found guilty of sodomy shall be punished
as a court-martial may direct.
As we stated in United States v. Scoby,
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.
5 M.J. 160, 163 (C.M.A. 1978). Thus, Article 125 forbids sodomy
whether it is consensual or forcible, heterosexual or
homosexual, public or private.
B. Arguments
Appellant challenges his conviction on the ground that
Lawrence recognized a constitutional liberty interest in sexual
intimacy between consenting adults in private. Appellant argues
that Article 125 suffers from the same constitutional
deficiencies as the Texas statute in Lawrence because both
statutes criminalize private consensual acts of sodomy between
adults. Appellant further contends that in light of the Supreme
Court’s rejection of Bowers v. Hardwick, 478 U.S. 186 (1986),
Appellant’s conviction violates the Due Process Clause. As a
result, Appellant argues that Article 125 is either
unconstitutional on its face or unconstitutional as applied to
his conduct.
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The amici curiae,∗ arguing in support of Appellant’s
position, assert that Article 125 is unconstitutional on its
face. According to the amici, the Supreme Court placed Lawrence
within its privacy line of jurisprudence by overruling Bowers
and effectively deciding that private, consensual, sexual
conduct, including sodomy, is a constitutionally protected
liberty interest. See Lawrence, 539 U.S. at 577. As with other
fundamental rights, the amici contend that a statute purporting
to criminalize a fundamental right must be narrowly tailored to
accomplish a compelling government interest. The amici argue
that Article 125 is not narrowly tailored because it reaches,
among other conduct, the private, consensual, off-base, intimate
activity of married military persons and their civilian spouses.
Arguing in the alternative, quoting Lawrence, the amici do not
“dispute that the interests in good order and discipline, and in
national security, are important. But the importance of those
interests is irrelevant, because there is simply no basis to
conclude that they are even rationally related to Article 125,
let alone sufficiently advanced by that law to justify its
onerous burdens on the ‘full right’ to engage in ‘conduct
∗
The amici curiae referred to in this opinion are represented in
the Brief of Amici Curiae in support of Appellant on behalf of
the American Civil Liberties Union, the American Civil Liberties
Union of the National Capital Area, Lambda Legal Defense and
Education Fund, Servicemembers Legal Defense Network, and
Retired Members of the Military.
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protected by the substantive guarantee of liberty.’” Under both
arguments, the amici maintain that the government has no
legitimate or compelling military interest in regulating
Appellant’s private conduct.
The Government argues that Lawrence is not applicable in
the military environment due to the distinct and separate
character of military life from civilian life as recognized by
the Supreme Court in Parker v. Levy, 417 U.S. 733 (1974). The
Government further argues that because the Supreme Court did not
expressly state that engaging in homosexual sodomy is a
fundamental right, this Court should analyze Article 125 using
the rational basis standard of review. Utilizing this standard,
the Government contends Article 125 is constitutional because it
is rationally related to a legitimate state interest.
Specifically, the Government maintains that Article 125
criminalizes conduct that “create[s] an unacceptable risk to the
high standards of morale, good order and discipline, and unit
cohesion” within the military as recognized by Congress in 10
U.S.C. § 654(a)(15).
Whether Appellant’s conviction must be set aside in light of
the Supreme Court’s holding in Lawrence is a constitutional
question reviewed de novo. Jacobellis v. Ohio, 378 U.S. 184,
190 (1964).
C. The Lawrence Decision
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The petitioners in Lawrence challenged the
constitutionality of a Texas statute criminalizing same sex
sodomy. See 539 U.S. at 562. This statute provided that “[a]
person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex.” Id. at
563 (quoting Texas Penal Code Ann. § 21.061(a) (2003)). The
Supreme Court determined at the outset that the statute posed a
question of substantive due process: “whether the petitioners
were free as adults to engage in the private conduct in the
exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution.” Id. at 564. The
“pertinent beginning point” for its review, the Supreme Court
stated, was Griswold v. Connecticut, 381 U.S. 479 (1965). Id.Griswold addressed the right to a marital zone of privacy in the
context of a Connecticut law proscribing the use of
contraception and counseling regarding contraception. See 381
U.S. at 482. This liberty interest was subsequently extended
outside the marital context in Eisenstadt v. Baird, 405 U.S. 438(1972)(right of individuals, married or unmarried, to have
access to contraceptives) and Carey v. Population Services
Int’l, 431 U.S. 678 (1977)(right to distribute contraception).
See Lawrence, 539 U.S. at 565-66.
Having framed the question as one of liberty, the Supreme
Court indicated that “[t]o say that the issue in Bowers was
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simply the right to engage in certain sexual conduct demeans the
claim the individual put forward[.]” Id. at 567. The Supreme
Court also characterized the statutes in Bowers and Lawrence as
seeking
to control a personal relationship that, whether
or not entitled to formal recognition in the law,
is within the liberty of persons to choose
without being punished as criminals.
This, as a general rule, should counsel
against attempts by the State, or a court, to
define the meaning of the relationship or to set
its boundaries absent injury to a person or abuse
of an institution the law protects.
Id.Within this framework the Supreme Court overruled Bowers:
“The rationale of Bowers does not withstand careful analysis. .
. . Bowers was not correct when it was decided, and it is not
correct today. It ought not to remain binding precedent.” Id.
at 577-78.
With respect to the Lawrence petitioners, the Court stated:
The case does involve two adults who, with full
and mutual consent from each other, engaged in
sexual practices common to a homosexual
lifestyle. The petitioners are entitled to
respect for their private lives. The State
cannot demean their existence or control their
destiny by making their private sexual conduct a
crime. Their right to liberty under the Due
Process Clause gives them the full right to
engage in their conduct without intervention of
the government. “It is a promise of the
Constitution that there is a realm of personal
liberty which the government may not enter.” The
Texas statute furthers no legitimate state
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interest which can justify its intrusion into the
personal and private life of the individual.
Id. at 578 (citing Planned Parenthood v. Casey, 505 U.S.
833, 847 (1992)).
While finding the Texas statute unconstitutional, the
Supreme Court stated that “[t]he present case does not involve
minors. It does not involve persons who might be injured or
coerced or who are situated in relationships where consent might
not easily be refused. It does not involve public conduct or
prostitution.” Id. The Supreme Court did not expressly state
whether or not this text represented an exhaustive or
illustrative list of exceptions to the liberty interest
identified, whether this text was intended to suggest areas
where legislators might affirmatively legislate, or whether this
text was intended to do no more than identify areas not
addressed by the Court. Nor did the Supreme Court squarely
place its analysis within a traditional framework for
constitutional review.
(1) Standard of Constitutional Review
The amici, in their primary argument, contend that strict
scrutiny should apply to this Court’s review of Article 125
because the Article impinges on a fundamental constitutional
liberty interest. This follows from the amici’s conclusion that
“the Supreme Court overruled Bowers . . ., and held the Texas
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sodomy prohibition unconstitutional because the Due Process
Clause of the Fourteenth Amendment protects a fundamental right
of adults to make decisions regarding private, consensual sexual
conduct, including sodomy.” As a result, the amici maintain
that Article 125 is unconstitutional because it is not narrowly
tailored to achieve a compelling government interest.
In contrast, the Government contends the Supreme Court did
not find a fundamental right to engage in homosexual sodomy by
overruling Bowers because the Supreme Court applied the rational
basis standard of review in Lawrence. “Rather, by applying a
‘rational basis standard of review’ to reach their determination
that the Texas statute ‘furthers no legitimate state interest
which can justify its intrusion into the personal and private
life of the individual,’ the Supreme Court reaffirmed that the
right to engage in homosexual sodomy is not a fundamental
right.”
Although particular sentences within the Supreme Court’s
opinion may be culled in support of the Government’s argument,
other sentences may be extracted to support Appellant’s
argument. On the one hand, the opinion incorporates some of the
legal nomenclature typically associated with the rational basis
standard of review. For example, as the Government notes, the
Supreme Court declared “[t]he Texas statute furthers no
legitimate state interest[.]” See Lawrence, 539 U.S. at 578.
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This is the counter-weight applied in the rational basis
analysis. Moreover, the Supreme Court did not apply the
nomenclature associated with strict scrutiny, i.e.,
identification of a compelling state interest and narrow
tailoring of the statute to accomplish that interest.
On the other hand, the Supreme Court placed Lawrence within
its liberty line of cases resting on the Griswold foundation.
See id. at 564-65. These cases treated aspects of liberty and
privacy as fundamental rights, thereby, subjecting them to the
compelling interest analysis. See Griswold, 381 U.S. at 485;
Carey, 431 U.S. at 686. With regard to the Supreme Court’s use
of language attributed to the rational basis review, Appellant
and the amici argue the Supreme Court is simply stating that the
Texas statute does not even accomplish a legitimate interest,
let alone a compelling one.
Indeed, in response to the Supreme Court’s decision in
Lawrence, some courts have applied the rational basis standard
of review while other courts have applied strict scrutiny. For
example, the Court of Appeals of Arizona determined that “the
Court applied without explanation the rational basis test,
rather than the strict scrutiny review utilized when fundamental
rights are impinged, to hold the Texas statute
unconstitutional.” Standhardt v. Superior Court of Arizona, 77
P.3d 451, 457 (Ariz. Ct. App. 2003). Whereas the court in
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Fields v. Palmdale School District, 271 F. Supp. 2d 1217, 1221
n. 7 (C.D. Cal. 2003), concluded, “Many of these fundamental
rights, especially those relating to marital activities and
family relationships, have been classified by the Supreme Court
under a broader ‘right to privacy’ that is implicit in the
Fourteenth Amendment[.]”.
The focus by the Government and Appellant on the nature of
the Supreme Court’s constitutional test in Lawrence is
understandable. Utilization of either the rational basis test
or strict scrutiny might well prove dispositive of a facial
challenge to Article 125. On the one hand, the interests in
military readiness, combat effectiveness, or national security
arguably would qualify as either rational or compelling
governmental interests. On the other hand, it is less certain
that Article 125 is narrowly tailored to accomplish these
interests.
The Supreme Court did not expressly state which test it
used. The Court did place the liberty interest in Lawrence
within the Griswold line of cases. See Lawrence, 539 U.S. at
564-65. Griswold and Carey address fundamental rights.
However, the Supreme Court has not determined that all liberty
or privacy interests are fundamental rights. In Lawrence, the
Court did not expressly identify the liberty interest as a
fundamental right. Therefore, we will not presume the existence
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of such a fundamental right in the military environment when the
Supreme Court declined in the civilian context to expressly
identify such a fundamental right.
What Lawrence requires is searching constitutional inquiry.
This inquiry may require a court to go beyond a determination as
to whether the activity at issue falls within column A — conduct
of a nature to bring it within the liberty interest identified
in Lawrence, or within column B — factors identified by the
Supreme Court as outside its Lawrence analysis. The Court’s
analysis reached beyond the immediate facts of the case
presented. This is reflected by the Court’s decision to rule on
the grounds of due process as opposed to equal protection.
“Were we to hold the statute invalid under the Equal Protection
Clause,” the Supreme Court noted, “some might question whether a
prohibition would be valid if drawn differently, say, to
prohibit the conduct both between same-sex and different-sex
participants.” 539 U.S. at 575. The Supreme Court also
acknowledged “an emerging awareness that liberty gives
substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex.” Id.
at 572.
At the same time the Court identified factors, which it did
not delimit, that might place conduct outside the Lawrence zone
of liberty. Thus, the door is held open for lower courts to
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address the scope and nature of the right identified in
Lawrence, as well as its limitations, based on contexts and
factors the Supreme Court may not have anticipated or chose not
to address in Lawrence. In our view, this framework argues for
contextual, as applied analysis, rather than facial review.
This is particularly apparent in the military context.
(2) Lawrence in the Military Context
The Supreme Court and this Court have long recognized that
“[m]en and women in the Armed Forces do not leave constitutional
safeguards and judicial protection behind when they enter
military service.” United States v. Mitchell, 39 M.J. 131, 135
(C.M.A. 1994)(quoting Weiss v. United States, 510 U.S. 163, 194
(1994)(Ginsburg, J., concurring)). “Our citizens in uniform may
not be stripped of basic rights simply because they have doffed
their civilian clothes.” Goldman v. Weinberger, 475 U.S. 503,
507 (1986)(citations omitted). As a result, this Court has
consistently applied the Bill of Rights to members of the Armed
Forces, except in cases where the express terms of the
Constitution make such application inapposite. See United
States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47
(1960)(“[I]t is apparent that the protections in the Bill of
Rights, except those which are expressly or by necessary
implication inapplicable, are available to members of our armed
forces.”).
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At the same time, these constitutional rights may apply
differently to members of the armed forces than they do to
civilians. See Parker, 417 U.S. at 743. “The military is, by
necessity, a specialized society.” Id. Thus, when considering
how the First Amendment and Fourth Amendment apply in the
military context, this Court has relied on Supreme Court
civilian precedent, but has also specifically addressed
contextual factors involving military life. See United States
v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)(“[T]he
right of free speech in the armed services is not unlimited and
must be brought into balance with the paramount consideration of
providing an effective fighting force for the defense of our
Country.”); see also United States v. McCarthy, 38 M.J. 398(C.M.A. 1993)(warrantless entry into military barracks room to
effectuate apprehension did not violate Fourth Amendment). In
light of the military mission, it is clear that servicemembers,
as a general matter, do not share the same autonomy as
civilians. See Parker, 417 U.S. at 758.
While the Government does not contest the general
proposition that the Constitution applies to members of the
Armed Forces, it argues that Lawrence only applies to civilian
conduct. Moreover, with respect to the military, the Government
contends that Congress definitively addressed homosexual sodomy
by enacting 10 U.S.C. § 654 (2000). According to the
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Government, pursuant to Congress’s Article I authority to make
rules and regulations for the Armed Forces, Congress not only
prohibited sodomy through Article 125, but with Article 125 as a
backdrop, determined in 1993 through 10 U.S.C. § 654 that
homosexuality, and, therefore, sodomy was incompatible with
military service. In enacting § 654, Congress determined that
“[t]he presence in the armed forces of persons who demonstrate a
propensity or intent to engage in homosexual acts would create
an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion that are the essence of
military capability.” 10 U.S.C. § 654(a)(15). Thus, according
to the Government, this Court should apply traditional
principles of deference to Congress’s exercise of its Article I
authority and not apply Lawrence to the military.
The military landscape, however, is less certain than the
Government suggests. The fog of constitutional law settles on
separate and shared powers where neither Congress nor the
Supreme Court has spoken authoritatively. Congress has indeed
exercised its Article I authority to address homosexual sodomy
in the Armed Forces, but this occurred prior to the Supreme
Court’s constitutional decision and analysis in Lawrence and at
a time when Bowers served as the operative constitutional
backdrop. Moreover, the Supreme Court did not accept the
Government’s present characterization of the right as one of
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homosexual sodomy. The Court stated, “To say that the issue in
Bowers was simply the right to engage in certain sexual conduct
demeans the claim the individual put forward[.]” Lawrence, 539
U.S. at 567. “The State cannot demean their existence or
control their destiny by making their private sexual conduct a
crime.” Id. at 578. Nor did the Supreme Court define the
liberty interest in Lawrence in a manner that on its face would
preclude its application to military members.
Constitutional rights identified by the Supreme Court
generally apply to members of the military unless by text or
scope they are plainly inapplicable. Therefore, we consider the
application of Lawrence to Appellant’s conduct. However, we
conclude that its application must be addressed in context and
not through a facial challenge to Article 125. This view is
consistent with the principle that facial challenges to criminal
statutes are “best when infrequent” and are “especially to be
discouraged.” Sabri v. United States, ___ U.S. __, __, 124 S.
Ct. 1941, 1948 (2004). In the military setting, as this case
demonstrates, an understanding of military culture and mission
cautions against sweeping constitutional pronouncements that may
not account for the nuance of military life. This conclusion is
also supported by this Court’s general practice of addressing
constitutional questions on an as applied basis where national
security and constitutional rights are both paramount interests.
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Further, because Article 125 addresses both forcible and non-
forcible sodomy, a facial challenge reaches too far. Clearly,
the Lawrence analysis is not at issue with respect to forcible
sodomy.
Thus, this case presents itself to us as a challenge to a
discrete criminal conviction based on a discrete set of facts.
The question this Court must ask is whether Article 125 is
constitutional as applied to Appellant’s 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?
D. Is Article 125 Constitutional as Applied to Appellant?
Appellant was charged with dereliction of duty, three
specifications of forcible sodomy, three specifications of
indecent assault, and two specifications of committing an
indecent act. With regard to the charge addressed on appeal,
the members found Appellant “not guilty of forcible sodomy, but
guilty of non-forcible sodomy.” As part of Appellant’s
23
United States v. Marcum, No. 02-0944/AF
contested trial, the following additional facts surrounding his
conduct were elicited: The act of sodomy occurred in
Appellant’s off-base apartment during off-duty hours; no other
members of the military were present at the time of the conduct;
Appellant was an E-6 and the supervising noncommissioned officer
in his flight. His duties included training and supervising
airmen. SrA H, an E-4, was one of the airmen Appellant
supervised. As a result, SrA H was subordinate to, and
directly within, Appellant’s chain of command.
The first question we ask is whether Appellant’s conduct
was of a nature to bring it within the Lawrence liberty
interest. Namely, did Appellant’s conduct involve private,
consensual sexual activity between adults? In the present case,
the members determined Appellant engaged in non-forcible sodomy.
This sodomy occurred off-base in Appellant’s apartment and it
occurred in private. We will assume without deciding that the
jury verdict of non-forcible sodomy in this case satisfies the
first question of our as applied analysis.
The second question we ask is whether Appellant’s conduct
nonetheless encompassed any of the behavior or factors that were
identified by the Supreme Court as not involved in Lawrence.
For instance, did the conduct involve minors? Did it involve
public conduct or prostitution? Did it involve persons who
24
United States v. Marcum, No. 02-0944/AF
might be injured or coerced or who are situated in relationships
where consent might not easily be refused? See id.When evaluating whether Appellant’s conduct involved
persons who might be injured or coerced or who were situated in
relationships where consent might not easily be refused, the
nuance of military life is significant. An Air Force
instruction applicable to Appellant at the time of the offenses
included the following proscriptions.
Unduly familiar relationships between members in which one
member exercises supervisory or command authority over the
other can easily be or become unprofessional. Similarly,
as differences in grade increase, even in the absence of a
command or supervisory relationship, there may be more risk
that the relationship will be, or be perceived to be
unprofessional because senior members in military
organizations normally exercise authority or some direct or
indirect organizational influence over more junior members.
Relationships are unprofessional, whether pursued on or
off-duty, when they detract from the authority of superiors
or result in, or reasonably create the appearance of,
favoritism, misuse of office or position, or the
abandonment of organizational goals for personal interests.
Dep’t. of the Air Force Instruction, 36-2909 Professional and
Unprofessional Relationships, paras. 2.2, 3.1 (May 1, 1996).
For these reasons, the military has consistently regulated
relationships between servicemembers based on certain
differences in grade in an effort to avoid partiality,
preferential treatment, and the improper use of one’s rank. See
United States v. McCreight, 43 M.J. 483, 485 (C.A.A.F. 1996).
25
United States v. Marcum, No. 02-0944/AF
Indeed, Dep’t of the Air Force Instruction 36-2909 is subject to
criminal sanction through operation of Article 92, UCMJ. As
both the Supreme Court and this Court have recognized elsewhere,
“The fundamental necessity for obedience and the consequent
necessity for imposition of discipline, may render permissible
within the military that which would be constitutionally
impermissible outside it.” Parker, 417 U.S. at 758. While
servicemembers clearly retain a liberty interest to engage in
certain intimate sexual conduct, “this right must be tempered in
a military setting based on the mission of the military, the
need for obedience of orders, and civilian supremacy.” United
States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996).
In light of Air Force Instructions at the time, Appellant
might have been charged with a violation of Article 92 for
failure to follow a lawful order. However, the Government chose
to proceed under Article 125. Nonetheless, the fact that
Appellant’s conduct might have violated Article 92 informs our
analysis as to whether Appellant’s conduct fell within the
Lawrence zone of liberty.
As the supervising noncommissioned officer, Appellant was
in a position of responsibility and command within his unit with
respect to his fellow airmen. He supervised and rated SrA
H. Appellant also testified that he knew he should not
engage in a sexual relationship with someone he supervised.
26
United States v. Marcum, No. 02-0944/AF
Under such circumstances, which Appellant acknowledged was
prohibited by Air Force policy, SrA H, a subordinate
airman within Appellant’s chain of command, was a person “who
might be coerced” or who was “situated in [a] relationship[]
where consent might not easily be refused.” Lawrence, 539 U.S.
at 578. Thus, based on this factor, Appellant’s conduct fell
outside the liberty interest identified by the Supreme Court.
As a result, we need not consider the third step in our Lawrence
analysis. Nor, given our determination that Appellant’s conduct
fell outside the liberty interest identified in Lawrence, need
we decide what impact, if any, 10 U.S.C. § 654 would have on the
constitutionality of Article 125 as applied in other settings.
Appellant’s conduct was outside the protected liberty
interest recognized in Lawrence; it also was contrary to Article
125. As a result, Article 125 is constitutional as applied to
Appellant.
II. Issue I: Sentencing Statement
Facts
After the court members announced their findings, the
court-martial recessed for the evening. Appellant then went
absent without leave (AWOL). After numerous recesses, the
court-martial reconvened and proceeded without Appellant. See
Rule for Courts-Martial 804(b)(1) [hereinafter R.C.M.]. Trial
defense counsel objected to proceeding without Appellant, but
27
United States v. Marcum, No. 02-0944/AF
ultimately made a sentencing argument to members that included,
as a sentencing exhibit, an unsworn statement from Appellant.
The unsworn statement was a compilation of word processed
notes that Appellant had prepared for his defense counsel prior
to trial. Appellant submitted an affidavit stating, “I have
examined this document and believe it is covered by the
attorney-client privilege, which I hereby invoke. At no time
did I authorize my defense counsel to release it to anyone, in
court or out of court. It was prepared for their eyes
exclusively. They never asked me for permission to release it
or permission to offer it as an unsworn statement in court.”
Marcum, No. ACM 34216, slip op at 4.
This twenty-page single spaced document was divided into
six sections. Each section referenced a different male airman
with whom Appellant was alleged to have had sexual contact. The
document described for his lawyer the nature of his professional
and off-duty relationship with each airman, including details
regarding Appellant’s level of attraction for each individual
airman as well as graphic descriptions of the charged and
uncharged sexual contact between Appellant and each airman.
The introduction of this statement caused the military
judge to ask defense counsel, “I just want to make sure that
that’s the means by which you would like to present that to the
court members and you’re not interested in providing that in any
28
United States v. Marcum, No. 02-0944/AF
other fashion. Is that correct?” Civilian defense counsel
responded: “That’s correct, Your Honor. It is rather lengthy
and I believe the impact of the contents of this statement, when
each member of the court is provided a copy of this and they can
read it individually, I think that it will carry the impact that
it was intended to take.” In subsequent argument, civilian
defense counsel made no reference to the unsworn statement,
whereas trial counsel referred to the statement when arguing
about Appellant’s lack of contrition.
Appellant maintains that because he was absent from the
proceedings he did not have the opportunity to assert his
attorney-client privilege prior to defense counsel offering the
written summary as an unsworn statement. Appellant also argues
that even if the unsworn statement was intended to benefit him,
defense counsel had no basis to unilaterally waive the attorney-
client privilege. Therefore, Appellant contends that M.R.E. 502
and 511 were violated because he never waived the attorney-
client privilege nor authorized his defense counsel to utilize
the written summary.
The Government asserts that Appellant was not denied the
opportunity to assert his attorney-client privilege because
Appellant waived this opportunity by going absent without leave.
As a result, the Government contends that defense counsel was
implicitly authorized to disclose the written summary. The
29
United States v. Marcum, No. 02-0944/AF
Government also suggests that Appellant’s unsworn statement does
not fall under the exclusionary rule set forth in M.R.E. 511(a)
because defense counsel introduced the statement on Appellant’s
behalf. Finally, the Government argues Appellant waived any
privilege that might have existed with regard to the written
summary when he testified to its contents during the defense’s
case.
Discussion
Whether Appellant suffered prejudicial error when his trial
defense counsel revealed a privileged communication during the
sentencing phase of trial is a mixed question of law and fact
reviewed de novo. United States v. Ankeny, 30 M.J. 10, 10
(C.M.A. 1990).
“Evidence of a statement or other disclosure of privileged
matter is not admissible against the holder of the privilege if
disclosure was compelled erroneously or was made without an
opportunity for the holder of the privilege to claim the
privilege.” M.R.E. 511(a). “[E]vidence of such a communication
should not be received unless it appears that the privilege has
been waived by the person or government entitled to the benefit
of it or that the evidence comes from a person or source not
bound by the privilege.” Ankeny, 30 M.J. at 19 (quoting Manual
for Courts-Martial, United States, 1969, para. 151a (Rev. ed.)).
“A lawyer shall not reveal information relating to the
30
United States v. Marcum, No. 02-0944/AF
representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to
carry out the representation, or the disclosure [is otherwise
permitted by this rule.]” United States v. Dorman, 58 M.J. 295,
298 (C.A.A.F. 2003)(quoting Model Rules of Prof’l Conduct R.
1.6(a) (2003)(emphasis added)).
Military law is clear that the decision to make an unsworn
statement is personal to the accused. During the sentencing
proceedings, an accused may “testify, make an unsworn statement,
or both in extenuation, in mitigation or to rebut matters
presented by the prosecution[.]” R.C.M. 1001(c)(2)(A). If an
accused chooses to make an unsworn statement, he “may not be
cross-examined by the trial counsel upon it or examined upon it
by the court-martial. . . . The unsworn statement may be oral,
written, or both, and may be made by the accused, by counsel, or
both.” R.C.M. 1001(c)(2)(C). This “right of allocution by a
military member convicted of a criminal offense is a fundamental
precept of military justice.” United States v. Provost, 32 M.J.
98, 99 (C.M.A. 1991).
Because an “accused’s right to make an unsworn statement
‘is a valuable right . . . [that has] long been recognized by
military custom’ and that has been ‘generally considered
unrestricted,’” United States v. Grill, 48 M.J. 131, 132
(C.A.A.F. 1998)(citing United States v. Rosato, 32 M.J. 93, 96
31
United States v. Marcum, No. 02-0944/AF
(C.M.A. 1991)), this Court will “not allow it to be undercut or
eroded,” United States v. Partyka, 30 M.J. 242, 246 (C.M.A.
1990). As this Court has previously indicated, “an accused
elects to make an unsworn statement.” Rosato, 32 M.J at 99.
Thus, regardless of whether the unsworn statement is made by the
accused or presented for the accused by his counsel, the right
to make the unsworn statement is personal to the accused.
Therefore, if an accused is absent without leave his right
to make an unsworn statement is forfeited unless prior to his
absence he authorized his counsel to make a specific statement
on his behalf. Although defense counsel may refer to evidence
presented at trial during his sentencing argument, he may not
offer an unsworn statement containing material subject to the
attorney-client privilege without waiver of the privilege by his
client.
Even though Appellant waived his right to be present during
sentencing by being voluntarily absent, he did not waive his
attorney-client privilege. Appellant’s affidavit demonstrates
that defense counsel never asked Appellant for permission to use
the written summary. Thus, by submitting Appellant’s written
summary as an unsworn statement, defense counsel revealed
material subject to the attorney-client privilege without
receiving an appropriate waiver of this privilege from
Appellant.
32
United States v. Marcum, No. 02-0944/AF
The harder question in this case, however, is whether
Appellant waived his right to confidentiality through his trial
testimony. If Appellant did not waive his right to
confidentiality, this Court must decide whether Appellant was
prejudiced by the use of the statement even though Appellant
testified to a great deal of the information contained within
the statement. “A finding or sentence of court-martial may not
be held incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of an
accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
Appellant contends the admission of his written summary
prejudiced him during sentencing because it inflamed the members
and resulted in a more severe sentence than he might have
otherwise received. Moreover, Appellant suggests that if he had
prepared an unsworn statement for sentencing it would have been
different than what was ultimately presented by his defense
counsel.
We believe Appellant has carried his burden on both counts.
Throughout the written summary, Appellant graphically described
the circumstances surrounding his relationships with the victims
and denied responsibility for his actions. Within his
description, Appellant provided numerous sexually explicit
details not contained in his trial testimony, as well as,
comments critical of the victims. Although Appellant’s trial
33
United States v. Marcum, No. 02-0944/AF
testimony was graphic, the tone and substance of the sentencing
statement was more explicit.
Moreover, trial counsel repeatedly referred to Appellant’s
unsworn statement during his sentencing argument. Trial counsel
argued, “They are the victims. And when you read Sergeant
Marcum’s statement remember that. And when you see - when you
read how he attacks the people that came forward to tell what he
did, you remember and ask yourself, who is the professional in
this case? Sergeant Marcum victimizes those airmen once and
then through the testimony and through the statement that you
have, he is victimizing those airmen again. Pay special
attention to his comments concerning Airman [M].” Further,
trial counsel reminded the members, “As you will read in
Sergeant Marcum’s statement, he can’t even admit to what he has
done.” Defense counsel did not refer to the statement at all
during his sentencing argument.
Under these circumstances, we find that Appellant did not
waive his right to confidentiality through his trial testimony.
Further, Appellant was prejudiced when his trial defense counsel
revealed privileged communications during sentencing without
Appellant’s permission.
34
United States v. Marcum, No. 02-0944/AF
Issue II: Life Without Parole
Appellant’s sentencing occurred on May 24, 2000. The
military judge instructed the members that life without parole
was the maximum authorized punishment for Appellant’s offenses.
Appellant was subsequently convicted of various offenses,
including non-forcible sodomy, for which the maximum authorized
confinement was five years. Appellant’s approved sentence
included, inter alia, a term of confinement for six years. In
light of our decision on Issue I, we need not decide whether
life without parole was an authorized punishment for forcible
sodomy at the time of Appellant’s offenses.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings, but
reversed with respect to the sentence. The sentence is set
aside. The record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing on sentence is
authorized.
35
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CRAWFORD, Chief Judge (dissenting on Issue I and concurring
in result on Issue III):
I. Defense Counsel’s Release of Appellant’s Unsworn Written
Statement
I disagree with the majority’s conclusion that defense
counsel erred in releasing Appellant’s written statement.
First, defense counsel’s declaration of intent to submit the
exhibit as Appellant’s unsworn statement establishes that the
statement was not privileged in the first place. Moreover, even
assuming the statement was privileged, it is clear from the
record that Appellant himself waived the privilege, as well as
impliedly authorized defense counsel to waive the privilege and
release the statement on Appellant’s behalf. For these reasons,
I respectfully dissent from the majority’s resolution of Issue
I.
A. Attorney-Client Privilege and Appellant’s Statement
It is well-established that “[a] client has a privilege to refuse
to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client
United States v. Marcum, No. 02-0944/AF
. . . .”1 Moreover, “[e]vidence of a statement or other
disclosure of privileged matter is not admissible against the
holder of the privilege if disclosure was compelled erroneously or
was made without an opportunity for the holder of the privilege to
claim the privilege.”2 “The privilege is intended to encourage
‘full and frank communication between attorneys and their clients
and thereby promote broader public interests in the observance of
law and the administration of justice.’”3
Nevertheless, it is equally well-established that material
is not privileged if it is intended to be disclosed to a third
party.4 In United States v. Grill,5 this Court championed the
accused’s right to make an unsworn statement pursuant to the
Rules for Courts-Martial 1001(c)(2)(C)[hereinafter R.C.M.]. In
keeping with Grill, the United States Air Force promulgated Air
Force Rule 3.1(D) on May 1, 2000, requiring that the defense
give the Government at least three days’ notice of intent to
submit an unsworn statement. Although this rule has since been
1
Military Rule of Evidence 502(a) [hereinafter M.R.E.].
2
M.R.E. 511(a).
3
Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)
(quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
4
See, e.g., Cavallaro v. United States, 284 F.3d 230, 246-47
(1st Cir. 2002)(“Generally, disclosing attorney-client
communications to a third party undermines the privilege.”).
5
48 M.J. 131 (C.A.A.F. 1998).
2
United States v. Marcum, No. 02-0944/AF
repealed, it was in effect at the time of Appellant’s court-
martial, and, accordingly, defense counsel in this case
presumably gave the Government the required notice of his intent
to submit an unsworn statement on Appellant’s behalf. In making
this required disclosure, defense counsel displayed his and
Appellant’s intent to disclose the statement to a third party
and, in so doing, established that the statement was not
privileged.
This conclusion is further supported by Appellant’s own
expression of intent as to defense counsel’s use of the
statement. Before Appellant went absent without leave (AWOL),
defense counsel extensively used Appellant’s statement at trial
to cross-examine Government witnesses. Appellant voiced no
objection to defense counsel’s use of the statement in this
manner, and we may therefore reasonably assume that Appellant
gave the statement to defense counsel with the full knowledge
and intent that the statement would, in a manner left to defense
counsel’s discretion, be released at trial. Having done so in
the first place, Appellant cannot now claim that attorney-client
privilege should have prevented the statement’s release.
3
United States v. Marcum, No. 02-0944/AF
B. Appellant’s Waiver of the Statement’s Privilege
Even assuming the statement was privileged, it is well
established that an accused may waive the attorney-client
privilege. If an accused “testif[ies] voluntarily concerning a
privileged matter or communication . . . [the accused] waive[s]
a privilege to which he or she may be entitled pertaining to the
confidential matter or communication.”6 Accordingly, I would
hold that when Appellant “voluntarily testifies about a
significant part of the matters contained in” the released
statement, he waived any future challenge to the statement’s
release on the grounds that defense counsel violated the
attorney-client privilege.7 In this vein, as noted above, the
record is clear that defense counsel further used the
statement’s content in his cross-examination of Government
witnesses. Appellant was present at these points in the trial,
yet voiced no objections to defense counsel’s use of the
“privileged” statement.
Even assuming Appellant did not himself waive the attorney-
client privilege, “[e]xcept to the extent that the client’s
6
M.R.E. 510(b). See also United States v. Smith, 33 M.J. 114,
118 (C.M.A. 1991)(observing that “an accused who testifies about
matters discussed in a privileged communication, rather than
disclosing an actual portion of the privileged communication,
waives the privilege”).
4
United States v. Marcum, No. 02-0944/AF
instructions or special circumstances limit that authority, a
lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation.”8
The facts of the instant case present exactly one such
circumstance. As the lower court aptly noted in its unpublished
opinion, “[A]fter he went AWOL, the appellant left his trial
counsel with the unquestionably difficult position of having to
decide what, if anything, to offer as an unsworn statement
during the sentencing party of the appellant’s court-martial.”9
Facing this circumstance, trial defense counsel certainly had
the implied authority to submit on Appellant’s behalf otherwise
privileged matters in an effort to defend Appellant as
successfully as possible. Additionally, Appellant, by his own
7
United States v. Marcum, No. ACM 34216, slip op. at 5 (A.F. Ct.
Crim. App. 2002)(presenting a finding of fact in accordance with
Article 66(c)).
8
ABA Model Rules of Prof’l Conduct Rule 1.6 cmt 5 (2004
ed.)(mirrored by Air Force Rule of Prof’l Conduct 1.6); see also
United States v. Province, 45 M.J. 359, 362 (C.A.A.F.
1996)(holding that counsel’s disclosure of information
relinquished to him by the client was “impliedly authorized” by
the client); Stephen A. Salzburg et al., Federal Rules of
Evidence Manual § 501.02[5][k][ii] (8th ed. 2002); John Henry
Wigmore, Evidence in Trials at Common Law § 2326 at 633
(McNaughton ed. 1961). This implied authority is consistent
with counsel’s duty to act at all times in a client’s best
interest. See United States v. Godshalk, 44 M.J. 487, 492
(C.A.A.F. 1996)(noting that some disclosures by an attorney do
not breach the attorney-client privilege if the attorney is
acting in the client’s best interest).
9
Marcum, No. ACM 34216, slip op. at 6.
5
United States v. Marcum, No. 02-0944/AF
misconduct, forfeited any right to object to counsel’s use of
the statement.
II. Appellant’s Conviction of Non-Forcible Sodomy in Light of
Lawrence v. Texas
As to Issue III, I agree with the majority’s conclusion
that Appellant’s conviction should not be reversed under
Lawrence v. Texas.10 But I disagree with the majority’s
assumption that Appellant’s conduct falls within the protected
liberty interest enunciated in Lawrence. There are factual
distinctions between the petitioners’ offense in Lawrence and
Appellant’s offense in the case at bar. Because of these
significant differences, I would hold that this is not a
Lawrence case and would reserve for another day the questions of
whether and how Lawrence applies to the military. The factual
differences between Lawrence and Appellant’s case are striking.
The offense of sodomy with which the petitioners in Lawrence
were charged occurred in the context of a consensual, adult
relationship. The Court noted at the outset of its opinion that
at the time of their arrest, the petitioners in Lawrence were in
Mr. Lawrence’s apartment, engaging in a private, consensual
sexual act.11 The Court reiterated this factual context shortly
thereafter: “The petitioners were adults at the time of the
10
539 U.S. 558.
6
United States v. Marcum, No. 02-0944/AF
alleged offense. Their conduct was in private and consensual.”12
At the conclusion of its opinion, the Court once again
emphasized the specific factual context of the petitioners’
acts:
The present case does not involve minors. It does not
involve persons who might be injured or coerced or who
are situated in relationships where consent might not
easily be refused. It does not involve public conduct
or prostitution. It does not involve whether the
government must give formal recognition to any
relationship that homosexual persons seek to enter.
The case does involve two adults who, with full and
mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle.13
Indeed, the nature of the petitioners’ relationship as described
by the Court was central to the Court’s conclusion that the
State may not curtail the petitioners’ “’intimate and personal
choices [which are] central to [their] personal dignity and
autonomy.’”14
The facts surrounding Appellant’s offense are strikingly
different. Appellant, a noncommissioned officer, was convicted,
in pertinent part, of non-forcible sodomy with Senior Airman
H, whom Appellant supervised in his work unit. Appellant
was not involved in a romantic relationship with Senior Airman
11
Id. at 564.
12
Id.13
Id. at 578.
7
United States v. Marcum, No. 02-0944/AF
H, as were the petitioners in Lawrence . On the contrary,
Appellant’s offense occurred after a night of drinking when
Senior Airman H “crashed” on Appellant’s couch, wearing
only boxer shorts and a T-shirt, and awoke to find Appellant
performing oral sex on him. Senior Airman H testified
that he did not protest Appellant’s action for fear of how
Appellant would respond. This event followed two other
incidents of sexual contact between Appellant and Senior Airman
H, which involved touching and dancing, on evenings when
Appellant and Senior Airman H had been out drinking and
socializing.
Clearly, Appellant’s offense occurred in the context of a
casual relationship with a subordinate airman who testified that
he was too frightened to protest. This is a far cry from the
consensual adult relationship, born of intimate and personal
choice, which characterized the petitioners’ behavior in
Lawrence. Indeed, Appellant’s offense concerned precisely what
the Supreme Court stated Lawrence did not concern: an
individual, Senior Airman H, who might have been coerced,
in a situation where consent might not easily have been refused,
given Senior Airman H’s subordinate professional
position. Senior Airman H himself expressed his fear of
14
Id. at 574 (quoting Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. at 833, 851 (1992)).
8
United States v. Marcum, No. 02-0944/AF
rejecting a superior, noncommissioned officer, who was in fact
his supervisor at work. This case certainly did not involve
“two adults [who acted] with full and mutual consent from each
other.” In sum, the act for which Appellant was convicted in
specification 1 of Charge II was not the kind of mutual and
intimate act in the context of which the Supreme Court decided
Lawrence.
An enumerated punitive Article within the UCMJ, Article 125
provides:
(a) Any person subject to this chapter who engages in
unnatural carnal copulation with another person of the
same or opposite sex or with an animal is guilty of
sodomy. Penetration, however slight, is sufficient to
complete the offense.
(b) Any person found guilty of sodomy shall be
punished as a court-martial may direct.15
Article 36 authorizes the President to prescribe “modes of
proof[] for cases arising under” the punitive Articles “which
shall . . . apply the principles of law and the rules of
evidence[.]”16 Thus, although Article 125 outlines the general
parameters of the sodomy offense in the military, the charge and
findings in each case describe the specific manner in which
Article 125 was violated, pursuant to Article 36. Certainly,
the modes of proof described in the charge and findings of an
15
Article 125, UCMJ, 10 U.S.C. § 925 (2000).
16
Article 36, UCMJ, 10 U.S.C. § 836 (2000).
9
United States v. Marcum, No. 02-0944/AF
Article 125 case may differ substantially from case to case.
For this reason, I will consider Article 125 only to the extent
it proscribes the conduct for which Appellant was charged and
convicted, as described in the charge and findings under
specification 1 of Charge II.17
Unlike the petitioners in Lawrence, who were both charged
with, and convicted of, consensual sodomy without any evidence
of force, Appellant was charged with three specifications of
sodomy “by force and without consent” under Article 125 (Charge
II). These charges were based on probable cause that Appellant
committed the general offense described in Article 125 with the
added element of force.18 Congress has dictated that even if an
accused is found not guilty of the offense as charged, the
accused may, in the alternative, be found guilty “of an offense
necessarily included in the offense charged[.]”19 Accordingly,
the military judge instructed the members on the lesser included
offenses available for each of the three specifications under
the forcible sodomy charge, including non-forcible sodomy,
17
See Parker v. Levy, 417 U.S. 733, 760 (1974)(noting the
Court’s repeated reluctance to strike down a statute in its
entirety when there are a number of situations to which it might
otherwise be constitutionally applied).
18
See R.C.M. 307(b)(2) (outlining the prerequisites for bringing
the charges against an accused); United States v. Miller, 33
M.J. 235, 237 (C.M.A. 1991)(finding that R.C.M. 307(b)(2)
implicitly requires probable cause to support charges against an
accused).
10
United States v. Marcum, No. 02-0944/AF
attempted forcible sodomy, assault with the intent to commit
sodomy, indecent assault, and assault consummated by a battery.
The members ultimately convicted Appellant of non-forcible
sodomy (specification 1), forcible sodomy as charged
(specification 2), and assault consummated by a battery
(specification 3).
In reference to specification 1, which Appellant challenges
on appeal, the judge instructed the members on the lesser-
included offense of non-forcible sodomy specifically as follows:
The offense charged, forcible sodomy, and the lesser
included offense of non-forcible sodomy differ
primarily in that the offense charged requires, as an
essential element, that you be convinced beyond a
reasonable doubt that the act of sodomy was done by
force and without consent of Senior Airman H,
whereas, the lesser included offense does not include
such an element.
(Emphasis added.) As noted above, the members found Appellant
guilty of this lesser-included offense, instead of the
specification as charged. Appellant now argues that this
conviction of non-forcible sodomy was essentially a conviction
of consensual sodomy. On the contrary, I would conclude that
although the finding of non-forcible sodomy was not a conviction
of the charged offense of forcible sodomy, neither did it
establish consent. Unlike Lawrence, in which there was no
evidence of force whatsoever, the finding in this case simply
19
Article 79, UCMJ, 10 U.S.C. § 879 (2000).
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United States v. Marcum, No. 02-0944/AF
showed that the members were not convinced beyond a reasonable
doubt that the act of sodomy was done by force and without
consent – in other words, that the evidence of force was simply
insufficient.20 This finding did not negate the probable cause
of force that supported Appellant’s charge, nor did it establish
consent. Indeed, Appellant did not, prior to trial, move to
dismiss or amend the forcible sodomy charge for lack of evidence
of force.
Given this factual context of Appellant’s charge, it is
obvious why this is not a Lawrence case. The following diagram
demonstrates what this case is truly about. On the far left is
the purely consensual case as in Lawrence; on the far right is a
case with a conviction for forcible sodomy beyond a reasonable
doubt. This case falls in the middle because there was probable
cause to believe that Appellant had committed forceful sodomy.
R.C.M. 302(c).
Probable
Cause
Lawrence Prove Force
beyond
reasonable
doubt
20
See Ex Parte Taylor, 101 S.W.3d 434, 447 n.3 (Tex. Crim. App.
2002) (Hervey, J., dissenting)(distinguishing a general verdict
of acquittal from a verdict of not guilty due to insufficient
evidence).
12
United States v. Marcum, No. 02-0944/AF
In short, one does not need to go beyond the facts of this
case and the language of the Lawrence opinion to conclude that
Appellant’s conduct did not fall within the liberty interest set
forth in Lawrence. Certainly this case is factually
distinguishable from Lawrence because it does not “involve two
adults, who with full and mutual consent from each other,
engaged in sexual practices common to a homosexual lifestyle.”21
Further, Appellant was a senior noncommissioned officer who
supervised and rated the victim. Thus, the victim was not in a
position where “consent might . . . easily be refused.”22 And
finally, to this date, the parties have not contested probable
cause to believe that Appellant committed forcible sodomy.
For these reasons, I concur in the result as to Issue III.
21
Id.22
539 U.S. at 578.
13