On Wednesday, 17 October, sometime around 1100, CAAF will hear 15-minute arguments by the parties in one of the most significant cases on its docket. The issue in United States v. Wilson, No. 06-0870/AR, is whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125. This issue is significant enough in itself. It also carries the potential for further exploration of Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). And now it carries the potential to explore a fascinating jurisprudential issue as well.
In United States v. Gainous, __ M.J. ___, No. 06-0932/NA (C.A.A.F. Aug. 14, 2007), CAAF specified the following issue:
WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).
This particular language is significant, since the issue was specified by the court. And the issue appears rather weighted, since dicta usually doesn’t overrule precedent. This wording suggests that the issue may launch a fascinating jurisprudential discussion of the nature of stare decisis. Note that the issue doesn’t simply ask whether mistake of fact as to age is or isn’t a defense to a sodomy charge. Rather, CAAF asks about the legal import of two of its previous cases addressing that issue.
CAAF directed that no briefs be filed in Gainous. But it gave the counsel in Wilson an important glimpse into what is on at least some of the CAAF judges’ minds. Wilson should be a fascinating argument. Too bad it is scheduled to be so short.