Today the Air Force Court of Criminal Appeals heard a fascinating argument in which the government and the defense agreed that Marcum created an additional de facto element that must be satisfied in an Article 125 prosecution. The government, however, argued that that additional element didn’t need to be satisfied in the Harvey case because his act of consensual, noncommercial, private same-gender oral sex charged under Article 133 rather than under Article 125. The argument should result in an interesting opinion.

Also today, with impecable timing, the January 2009 issue of the Army Lawyer went up on the web with a lead article about Article 125. Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 1. Here’s a link.

Military justice practitioners will also be interested in the issue’s article on military justice in a deployed setting, available here. Captain A. Jason Nef, Getting to Court: Trial Practice in Deployed Environment, Army Law., Jan. 2009, at 50.

18 Responses to “January 2009 Army Lawyer out — with Article 125 article”

  1. Anonymous says:

    Oh of course, the constitutional liberty interest changes because we’re under a different UCMJ Article.

    Where do government lawyers go to school?

  2. Toussaint-Guillaume Picquet de la Motte says:

    I see Cloudesley taking an interest in the introductory statement of this article.

  3. Bridget Wilson says:

    Very interesting. Perhaps I am most interested in FN 11 in which the author describes the two adults in Lawrence as engaging is sexual practices “common to a homosexual lifestyle” Rumor has it that opposite sex couples have been known to engage in the same behavior, at least I have heard that to be the case.

    Anon 07:47, Exactly how does the Marcum/Lawrence analysis change because this is charged under 133?

  4. Cloudesley Shovell says:

    Always good two see my friend Miracle Max doing his part to advance the law with a sense of humor.

    Bonus points to the author for sneaking the word “frotteur” into the article, a word I had never heard of until just now.

    However, I respectfully disagree with the author’s analysis of the interplay between the new Art. 120 and Art. 125.

  5. Anonymous says:

    Had to look it up. Frotteurism: the paraphiliac practice of achieving sexual stimulation or orgasm by touching and rubbing against a person without the person’s consent and usually in a public place — called also frottage. And had to look up paraphiliac as well – a preference for or addiction to unusual sexual practices.

  6. Anonymous says:

    I thought only Congress or the President could add or subtract elements. So CAAF added one in Marcum? Get back in your box, Denedo.

  7. Anonymous says:

    Note that in his biographical footnote, Maj Cummings went to “The Ohio State University” and to “Vermont University” without the “The.” Let’s be consistent. If you are into using “The” before the university, then use “The Vermont University,” as well. Check the school’s website.

  8. Anonymous says:

    Actually, it’s “The University of Vermont.”

  9. Mike "No Man" Navarre says:

    Anon 747: I thought only Congress could add elements. Since when does the prosecution get the power to say what the elements of a crime are? That would be a bit of a kangaroo court if the MilJus system allowed the Pres. to prosecute servicemebers and define the crimes they would be prosecuted under.

  10. Anonymous says:

    Right, no man. But Congress seems to delegate a lot of its power. See Art. 36, UCMJ. Not saying it’s constitutional, but the SCt seems to take a laissez faire approach to most of this now. With most of the UCMJ offenses, Congress sets out the basics and the President fills in the framework.

  11. John O'Connor says:

    Don’t commanders get to decide on the content of orders and then prosecute those who violate what the commander decided should be the subject of an order? I don’t see any important difference between that and allowing the Executive to establish the elements of a crime whetre it also is the prosecutorial authority.

  12. Anonymous says:

    Ummm, No Man, who do you think comes up with the Art. 134 enumerated offenses? It ain’t Congress…

  13. Mike "No Man" Navarre says:

    JO’C and Anon:

    Those aren’t elements. The order first of all must be lawful, so no, not everything the commander says is an element of the offense. Art. 92 doesn;t care what the elements of the order were, just that it was obeyed. Furthermore, the CO wasn’t acting in a prosecutorial role when he gave the order so there is a difference between an order and defining elements of a crime. Secondly, the elements of Art. 134 are set out in the US Code and no where else. Those “enumerated” offenses aren’t elements, they are factual findings that set the punishment within the maximum potential punishment (:as a court martial may direct”), which is also determined by COngress. Grover, where are you man . . . what is this concept I am talking about here called, I can’t quite remember. There is a case . . .

  14. Anonymous says:

    US v. Fishbane?

  15. Anonymous says:

    Anyone know whether a proposal’s pending to incorporate the Marcum factors into the next amendment of the MCM?

  16. Bridget Wilson says:

    I have not hear if there is official discussion of adding the Marcum factors element to the next MCM. I have heard a suggestion, other than that in the Army Lawyer article, to transfer sodomy as a 134 charge to be set out in the manner of the 134 adultery.

  17. John O'Connor says:

    No Man:

    If you re-read my post, I never said that the issuance of an order constituted “elements” of a crime. What I said was that the CO issuing the order was deciding what type of conduct would be criminalized (subject, as all laws are, to constitutional standards) and was also proseucitng violations of those criminal norms.

    I’m not arguing one way or the other whether there is some concept in crinminal law that says “elements” of a crime must be established by a legislature (though I have my doubts about whether such a rule should apply in the military context if there is proper delegation). I was quarreling with your point that allowing the Executive to establish elements makes a criminal justice system a kangaroo court. If the “elements” and the “law” are clearly established (such that there is no ex post facto law) and the prosecution is subject to constitutional restraints, it isn’t inherently corrupting or “kangarooish” if the elements were established by the Executive.

  18. Mike "No Man" Navarre says:


    I wasn’t arguing and kangaroos had inhabited the beltway. Rather, I believe that a fundamental precept of both civil and military law is that Congress must establish the offenses and the elements of an offense and not the President. Other separation of powers arguments have not required existing mischief to establish a violation of that constitutional principle. And I am not even suggesting the result would be Better is left to the legislature, see eg the amended Art. 120. I don’t think Congress may properly delegate that function as a separation of those powers was contemplated by the Framers, even as far as military punishments. I think the expansion of the MJus system post Solorio et al only reinforces that this parallel court system should have that same protection.