Yesterday we noted the interesting granted issue in United States v. Goings, No. 11-0547/AR: “WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.” We also noted our inability to find an ACCA opinion explaining what gave rise to that interesting issue.
A learned alert reader in the know has shared a case synopsis with us:
The issue briefed at ACCA involved an as-applied, constitutional challenge to appellant’s indecent acts conviction. Appellant and a third person alternated video-taping and engaging in consensual, sexual acts with a female at an off-post apartment. The video tape was discovered during a search on an unrelated offense.
Appellant argued at ACCA that Lawrence v. Texas extends a zone of privacy which protects his consensual, sexual conduct. The government argued that appellant’s conduct is not protected by Lawrence because it was indecent and
service-discrediting. In that regard, CAAF will be faced with determining how Clauses 1 and 2 of Article 134 interact with the first and third prongs of the US v. Marcum test: “First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court [in Lawrence v. Texas]? . . . Third, are
there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.”
We are informed that ACCA affirmed without a written opinion.