The No Man will be excited.  This new ACCA published opinion, which rejects a Lawrence v. Texas challenge to a sodomy conviction, cites Apprendi v. New Jersey, 530 U.S. 466 (2000).  United States v. Truss, __ M.J. __, No. ARMY 20080988 (A. Ct. Crim. App. Aug. 31, 2011).

[Gee, can you tell it’s now football season?  I originally mistakenly wrote “Lawrence v. Taylor” instead of “Lawrence v. Texas.”  I must still be in a state of confusion brought on by the Terrapins’ new kaleidoscopic uniforms.]

6 Responses to “Published ACCA opinion [corrected]”

  1. stewie says:

    So let me see if I understand the reality of this decision’s argument. The government can charge you with Forcible Sodomy, and even if they fail to prove forcible sodomy, unless you can prove consent (to some unknown standard, BRD? Clear and convincing? POTE?), then you are guilty or can be found guilty of Sodomy.

    I see no affirmative defense of consent under 125 like there is under the new 120 (because of course consent is not at issue in 125) so isn’t this creating an impermissible burden shift of an element that isn’t even part of the offense onto the accused?

    At the end of the day, if you can’t prove forcible sodomy (either directly or through use of rank) or you can’t prove that this was an otherwise impermissible relationship taking it out of the rubric of Lawrence, then shouldn’t that be it? Not this well you didn’t prove it was consensual so it isn’t protected by Lawrence?

    Would all defense counsel now be forced to put on a defense of consent in future cases like this or else risk this same outcome?

  2. anon says:

    My appellate radar is not blinking red because of any burden-shifting issue or consent issue; its blinking red because, in the end, the court reviewed a judge’s findings for guilt or innocence related to consensual sodomy for clear error. Regardless of any special findings I can’t see how this comports with Article 66.

  3. Cato says:

    It appears from the MJ’s special findings that “a lack of consent,” was the critical fact, albeit based on some lower standard of proof than beyond a reasonable doubt, that brought the accused’s conduct outside of the Lawrence zone of protection. Since this is the fact that makes the accused’s conduct criminal and therefore punishable, does it not need to be proved beyond a reasonable doubt? Is it not a “functional element” that must be read into Article 125 in order for it to be constitutional as applied under Marcum and Stirewalt?

  4. Tami says:

    My take on this is that the judge intended to say something like, “even though I found the accused not guilty of sodomy by force, he is still guilty of sodomy because the level of intoxication involved removes the conduct from the constitutionally protected zone established by Lawrence.”

  5. stewie says:

    Well yes, that is clearly what he said, the question is, is he correct and can he do that without creating a situation where the accused has some extra burden to prove consent or where the government doesn’t have a clear burden to prove lack of consent (when if it had, the conviction would have been for forcible sodomy).

  6. Cap'n Crunch says:

    I’m a little worried here — me and the Mrs. usually get trashed on Friday nights before I bugger her. Unless I can establish that she consented, our conduct isn’t protected. But she won’t do anal unless she is trashed. I think I’m gonna cry…