CAAF today granted review of this issue:  “WHETHER APPELLANT’S CONVICTION UNDER ARTICLE 125, UCMJ, FOR CONSENSUAL SODOMY IN THE PRESENCE OF A THIRD PERSON VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.”  United States v. Hartman, __ M.J. __, No. 10-0291/MC (C.A.A.F. Nov. 9, 2010).  NMCCA’s second unpublished decision in the case is available hereUnited States v. Hartman, No. NMCCA 200900389 (N-M. Ct. Crim. App. June 22, 2010) (per curiam).  CAAF had summarily reversed NMCCA’s first opinion in the case:

[W]e note that the decision of the court below is not free from ambiguity with respect to the factual question whether it was “reasonably likely” the third party would have observed the conduct at issue. See United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999). Accordingly, it is, ordered that the petition for grant of review is granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review consistent with Izquierdo.

NMCCA’s original opinion is available hereUnited States v. Hartman, No. NMCCA 200900389 (N-M. Ct. Crim. App. Dec. 29, 2009).

18 Responses to “CAAF grant”

  1. question says:

    When’s the last time heterosexual sodomy was charged because someone else was asleep in the room?

  2. Anon says:

    Hell, forget the third-party in the room, have you heard of “sexsomnia,” also called sex sleep?

    People who experience sexsomnia engage in sex while sleeping, though they have no memory of their actions once they wake up. The intensity of this sleep sex varies, with some sexsomnia victims merely moaning and groping, and others engaging in sexual activity either with themselves or with another person in the bed. On the extreme end of the scale are those who become violent and dangerous while performing sexual acts.

    I can’t wait until THIS issue gets litigated!

  3. Pity the fool says:

    What kind of sodomy was involved here?

  4. Tami says:

    The issue is whether it would be reasonably likely for the third person to observe the conduct given that the third person apparently slept through the entire event. Some people can sleep through anything. It’s kind of like “does a tree make noise when it falls if no one is around to hear it?” Or what if the person is deaf?

    I can see the argument that if the third party is unconscious, then it is not reasonably likely for that person to observe the conduct. I don’t think there is a “what if the third party had been conscious” standard.

    As for the question about the type of sodomy, it was anal sex–Fireman B penetrated the appellant.

  5. Southern Defense Counsel says:


    I agree that the issue is what you said, but in reading the NMCCA opinion, they didn’t really answer the question, even though that was what CAAF ordered them to do. Instead, they talked about a bunch of other stuff and said “affirmed – see Marcum.”

  6. Anonymous says:

    Don’t know whether you are serious or not, but either way this sounds like a great defense to start using in sexual assault cases. DC can get some expert (since everyone gets numerous experts now as a matter of routine) to come in and say she was all into it even though she has no memory of it. Got to love the convenience of that. And it all plays into the huge stereotypes carried around in the minds of the members. NG baby!!!! (Because after all, the members have been there and done that too. ;))

  7. Ama Goste says:

    It happens more often than you’d think as the result of LIOs–charge forcible sodomy, but you get a conviction for just sodomy (consensual) and the indecent acts because the roommate is in the next bed.

  8. Anonymous says:

    Anonymous 0728:

    This defense is already being used–it’s called the Ambien defense. The instructions even warn the user that taking Ambien could result in you doing things you don’t remember–cooking, eating, driving, and yes, having sex.

  9. Socrates says:

    Agree. NMCCA decision should have mentioned actual facts such as 1) distance from sleeper from sexer; 2) physical layout of space (noise containment); 3) use (or not) of curtains/blankets/sheets, etc.; 4) actual noise.

    By the way – among parents – there is an ongoing debate about whether having sex with a baby in the crib (same room) – or children in the next room – is natural, moral, legal, etc. Most parents have done it. I wonder how NMCCA factors this theoretical problem into the discussion of liberty interest. (I think the homophobia still lingers)

  10. Anonymous says:

    Sweet! Well there ya go. :D

  11. Anonymous says:

    Was this a case of consensual being a LIO, or did some crazy SJA actually go for this a plea deal — just to get the guy?

  12. Anonymous says:

    It could be that NMCCA didn’t get into the facts because there were no facts developed. This was a guilty plea. If there is nothing in the record regarding whether the roommate woke up, then I think this case is a bust.

  13. kyle says:

    If you read the first opinion, you will see that he was originally charged with forcible sodomy.

    The facts indicate that the “victim” woke up to the appellant fondling his penis. Then, once the “victim” was good and hard, the appellant penetrated his own anus with the “victim’s” penis. Sounds like it wasn’t all that forced, unless you believe that all anal sex is inherently forced.

    This begs the question: I wonder what punishment the “victim” got?

  14. Anon says:

    Right: No facts = No providency. It does not mean upholdhing the plea based on abstract or theoretical notions. NMCCA couldn’t take CAAF’s cue…even though it was rather “open and notorious.”

  15. Tami says:


    The first opinion says that appellant woke up b/c the other Sailor was fondling HIM. I too am puzzled about the charge of “forcible” sodomy.

  16. kyle says:


    You are correct, and I had my facts wrong! WTF? The appellant was awaken by getting wanked by the “victim”, and they charged the appellant with forcible sodomy?

    Does anybody know what kind of punishment that the “victim” received for his consensual act of sodomy?

    If this were an Army case where some SVP was tying to get her or his Master military justice practitioner ASI requiring 80 courts martial, 18 of which must be contested, then I might understand how this stupid case got charged. Does the Navy have an equivalent program for ASI?

  17. anonymous says:

    What the heck? Where was the adult supervision here?

  18. Anonymous says: