NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

  • A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
  • A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
  •   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
  • Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
  • The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
  • The court avoided the issue:

      I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

3 Responses to “In the NMCCA (Stratton)”

  1. Charlie Gittins says:

    The light of the dim bulb did not illuminate the issues.  I am unsurprised by the reversal of this MJ.  That is all I have to say about that.  

  2. Goodnight, Jane Fonda! says:

    Not necessarily an important detail, but the Person Formerly Known as The Victim in this case, despite the application of Lawrence, appears to have been — and may still be — female (p. 9 of the opinion).  Makes the conduct less taboo (even in post-DADT world), but thought it important to make clear that Seaman Recruit Stratton’s orientation may not be homosexual, “not that there’s anything wrong with that.”

    http://youtu.be/2GMZjkNW5b8 

    Something else interesting I noticed on p. 9.  Something I have yet to see from a court in these days of Sexual McCarthyism: an indication that an adult female who voluntarily consumes alcohol may possibly be responsible for her voluntary conduct while intoxicated.  

    The quote from NMCCA on p. 9: “Similarly, it was PFC JH’s decision to consume alcohol.”  *sniff, sniff*  Brings tears to me olde and weathered eyes.   

  3. Tstan says:

    It looks like consensual heterosexual sodomy to me. (Took me to pg 9 to get there though.) In that context the BCD looks harsh. Maybe the panel was thinking, don’t do anal if she’s that drunk? Good job by the defense counsel at trial.

    Looks a little like one of the cases argued at ACCA last week, too.