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.