“[O]nce the decision to prosecute has been made, the attorney for the government should charge, or should recommend that the grand jury charge, the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.” United States Attorneys’ Manual, para. 9-27.300. The case of United States v. Goings, No. 11-0547/AR, is an example of what happens when prosecutors do the opposite.
When German police executed a search warrant on the off-post residence of Staff Sergeant Goings, USA, they found enough evidence to lead to his conviction in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of one specification of rape and one specification of indecent acts, in violation of Articles 120 and 134, UCMJ. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge. But CAAF won’t consider any issues relating to the rape conviction when it hears oral argument on Tuesday, November 13, 2012. Instead, the court will turn its attention to whether the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), extends a Constitutionally-protected zone of privacy to the following activity:
In that [Appellant], U.S. Army, did, at or near Leimen, Germany, between on or about 15 February 2003 and 1 February 2006, wrongfully commit an indecent act with another male and female by allowing the other male to be present and video record on a video cassette tape the said [Appellant] engaging in sexual intercourse with the female.
The Appellant’s brief opens with an acknowledgement that military life is different from civilian life, and that “[in] light of the military mission, service members do not share the same autonomy as civilians.” Appellant’s Br. at 9. It then turns to discussion of the Supreme Court’s 2003 decision in Lawrence, and CAAF’s decision the next year in United States v. Marcum, 60 M.J. 198, where CAAF affirmed a conviction for consensual sodomy with a subordinate on the basis that “while servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy.” Appellant’s Br. at 12-14 (quoting Marcum, 60 M.J. at 207 (citations omitted)). It also mentions a similar ruling from CAAF in United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004), that also involved consensual sodomy between servicemembers of different grades. Appellant’s Br. at 14-15.
Marcum created a three-factor test: (1) was the conduct of a nature to bring it within the liberty interest identified by the Supreme Court – did it involve private, consensual sexual activity between adults; (2) did the conduct encompass any behavior Lawrence listed as outside its analysis; and (3) are there additional factors relevant solely in the military environment? Applying these factors, the Appellant’s brief first argues that the Appellant’s conduct was “wholly private and consensual activity.” Appellant’s Br. at 15. Next, it argues that it is not outside the Lawrence zone, particularly since “the fact a third party was present recording the sexual activity does not, in this case, constitute public conduct.” Appellant’s Br. at 16. Finally, the brief argues that because the Appellant’s conduct occurred off-base with non-military individuals, and because it was unknown to his command prior to his court-martial, it “does not involve additional factors relevant only in a military setting.” Appellant’s Br. at 17.
The Government’s brief takes a different approach: “Lawrence does not extend a zone of privacy to appellant’s indecent act because the offense by its very nature tends to be service discrediting.” Gov’t Br. at 5. The Government makes this argument by characterizing the Appellant’s conduct as “public, open[,] and notorious,” while also noting that “under military case law, photographing or filming sexual acts is an offense punishable under Article 134.” Gov’t Br. at 8. The Government also argues that “a rational fact finder could conclude that the video in question was recorded surreptitiously” (an apparently new theory formulated by the Government’s appellate division), and this theory becomes a main thrust of the Government’s brief. The brief focuses on the service discrediting nature of the Appellant’s conduct, and dedicates only four short paragraphs to the Marcum factors, in which the Government argues almost summarily that “[c]onduct that would tend to bring the armed forces into disrepute is necessarily outside the Lawrence zone of privacy as applied to the military in this case.” Gov’t Br. at 19.
In a short reply brief, the Appellant attacks the Government for “revis[ing] the basis of culpability from that presented at trial and on appeal at the Army [CCA]” based on the new theory of the recording being surreptitious. Reply Br. at 4.
However, looking past the matter of the nature of the video recording, the Government’s argument is essentially that the Lawrence/Marcum factors do not apply outside of a case of consensual sodomy criminalized by Article 125. This theory is neither novel nor successful. See, for example, United States v. Harvey, 67 M.J. 758, 761 (A.F.Ct.Crim.App. 2009) (“The government avers that Marcum is inapplicable to the present case because the sodomy proscribed in Marcum was proscribed as a violation of Article 125, UCMJ, whereas the sodomy proscribed in the present case was proscribed as a violation of Article 133, UCMJ. We disagree with the government’s contention and conclude that the Marcum analysis is applicable to any private, consensual sexual conduct regardless of which UCMJ article the government chooses to charge the conduct.”). However, some quick research shows that CAAF hasn’t specifically rejected this theory.
At least, not yet.