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.

5 Responses to “To paraphrase Marvin Gaye, what’s Goings on”

  1. Just Some Guy says:

    CAAF originally granted review of Goings last October remanding it back to ACCA that same day…one of the Fosler trailers.  Does anyone know if this was a GP? 

  2. Just Some Guy says:

    Interesting that they are re-visiting the failure to “state an offense” issue on it as well.  How does today’s CAAF Opinion in US V. Humphries play into it?
     

  3. Phil (Viking) Cave says:

    Did they also brief the affirmative defense of taping to avoid false allegations defense?
     

  4. k fischer says:

    Phil,

    That defense would certainly discount the intent to satisfy the lust or sexual desire of the tapor or the tapee, unless, of course the tape was found in the guy’s VCR.  Hopefully, the appellant kept the tape in a box labeled “Alibi Evidence in the Event of a FRA.” 

    However, I wonder if the indecency of the offense and conviction were based on a a third party being involved.  Even under the privacy interest of Lawrence v. Texas, I find it hard to imagine that CAAF would determine that the menage/Chinese finger cuff is no longer indecent.

    Was this the only offense for which the appellant was tried or was this just a stupid add-on for a drug hot?

  5. stewie says:

    apparently Humphries says (to me after reading it) that they want to maintain the ability to deny what I can only guess would be characterized as “unworthy” convictions based on “prejudice” while allowing other “worthy” convictions based on “prejudice.”
     
    I say this because J. Stucky is correct that the only real prejudice noted in the decision is well the error itself. It’s also interesting that they change their reading of the President based not on any idea that he’s changed things, but because the Supremes have changed.
     
    That is, clearly the shall part was based on the idea that failure to state an offense WAS jurisdictional (or at least -esque) and thus the RCM was set up to reflect that and the word shall is given obvious and plain meaning. But since the Supremes have now loosened things up, the CAAF reads the RCM likewise, without any evidence that the RCM was in fact intended to follow and track.
     
    At any rate, we are left with the Court now being stuck doing a case by case review of failure to state an offense claims, rending the RCM pretty much meaningless because shall just means if the accused can show prejudice, but THAT now means well, not sure what it means, because what’s the prejudice in Humphries?