The Navy-Marine Corps CCA didn’t update its website in time for TWIMJ to reflect an oral argument scheduled for this week. The CCA will hear oral argument in United States v. Brown tomorrow, Wednesday, August 14, 2013, at 10:00 a.m. The case certainly seems worthy of attention:
A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of abusive sexual contact, one specification of forcible sodomy, and one specification of unlawful entry, in violation of Articles 120, 125, and 134, UCMJ, 10 U.S.C. §§ 920, 925, and 934 (2006). The members sentenced the appellant to two years confinement and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged and, except for the bad-conduct discharge, ordered it executed.
I. Whether Article 125, UCMJ, sodomy, is unconstitutionally vague on its face and as applied to appellant?
II. In Article 125, UCMJ, force is a functional element that the government must prove beyond a reasonable doubt. The statute contains no definition of force but a parallel provision in Article 120 contains a definition of force which expressly does not include situations where the victim is substantially incapable of declining participation. Here, Appellant was improperly found guilty of an act of sodomy not within the known definition of force. Was appellant’s conviction for forcible sodomy legally and factually sufficient?