Last term, in the Army case of United States v. Goings, 72 M.J. 202 (C.A.A.F. May 23, 2013) (CAAFlog case page), CAAF affirmed a conviction for indecent acts in violation of Article 134 based upon the appellant’s actions permitting a third-party to watch and videotape consensual sexual activity between the appellant and his partner. In the decision, CAAF rejected an as-applied constitutional challenge to the charge. Writing for a four-judge majority Judge Ryan explained:

No one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence. But that does not answer the altogether different question whether permitting a third party to observe and memorialize one’s sexual activity on videotape is categorically protected as “wholly private and consensual sexual activity” where the trier of fact has deemed the conduct to be prejudicial to good order and discipline in the armed forces and service discrediting. We hold that, under the circumstances of this case, it is not.

Goings, 72 M.J. at __, slip op. at 11 (emphasis added). Notably, CAAF reviewed Goings for plain error because the appellant did not make the as-applied constitutional challenge until appeal. Further, the appellant’s trial strategy was to try and convince the members that “his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting.” Id., slip op. at 7 n.3. Because of this strategy, the appellant did not litigate the issue in a way that would have produced a record sufficient to establish constitutional protection for his actions where their criminal nature is drawn from something other than the actions themselves. As Judge Ryan explained:

When the conduct being charged does not fall directly within the focal point of Lawrence — sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself –- and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial.

Id., slip op. at 12 (emphases added).

But in a recent per curiam opinion in United States v. Nettles, No 38336 (A.F. Ct.Crim.App. Apr. 21, 2014) (link to unpub. op.), a three-judge panel of the Air Force CCA applies this passage from Goings in a way that focuses not on the additional factor at issue (in Nettles it’s conduct unbecomming), but instead focuses on the number of people involved in the sexual activity (in Nettles it’s three).

Captain Nettles was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person. He was sentenced to confinement for two months, a reprimand, and to be dismissed.

The convictions arose from two sexual encounters involving the appellant, another man (a lieutenant colonel identified only as SC), and two women (one in each encounter). “At trial, the military judge denied the appellant’s motion to dismiss these specifications because he found that the alleged conduct did not fall within a protected liberty interest.” Slip op. at 5.

Rejecting the constitutional challenge and affirming the convictions, the CCA notes:

Our superior court has held that even post-Marcum, “The commission of sexual acts in the presence of a third party has been held to be sufficiently ‘open and notorious’ to constitute an indecent act, punishable under Article 134, UCMJ.” [Goings, 75 M.J.] at 206; see also United States v. Izquierdo, 51 M.J. 421, 422-23 (C.A.A.F. 1999). In Goings, a third party was present during consensual sexual activity and recorded the activity. Our superior court upheld Goings’ conviction for engaging in an indecent act, concluding that the presence of the third party, even though voluntarily present and with the knowledge and consent of the parties engaged in the sexual activity, was sufficiently open and notorious to take it outside of the liberty interest identified in Lawrence. Going[s], 72 M.J. at 206.

As it relates to the facts of this case, our superior court pointed out in Goings:

When the conduct being charged does not fall directly within the focal point of Lawrence—sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself—and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial.

Id. at 207 (emphasis added). The appellant “must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed.” Id.

Nettles, slip op. at 6 (emphasis in original). I think this analysis – and particularly the emphasis – misses the mark. While Goings involved sexual activity in the presence of a third party, I read the majority’s decision as turning on the existence of an additional factor (the panel’s factual determination that the conduct was prejudicial to good order and discipline and service discrediting), not on the fact that there were more than two individuals involved in the encounter. If my read of Goings is right, the mere presence of a third person is not enough to turn an otherwise private and consensual (and constitutionally protected) sexual encounter into an unlawful indecent act. However, the presence of a third person might tip the scales on the prejudicial or discrediting nature of the sexual encounter, rendering it unlawful. This may seem like a distinction without a difference at the appellate stage, but at the trial stage it’s a significant point to be made in instructions and argument.

In Nettles the CCA notes the military judge’s instructions to the members that indirectly referenced the liberty interest:

The military judge further instructed the members:

Article 133, UCMJ, is not intended to regulate the wholly private consensual sexual activities of individuals. In the absence of aggravating circumstances, private consensual sexual activity including sexual intercourse and/or oral sodomy is not punishable as an indecent act.

Among possible aggravating circumstances is that the sexual activity was open and notorious. Sexual activity may be open and notorious when the participants know that someone else is present. This presence of someone else may include a person who is present and witnesses the sexual activity.

The military judge gave a similar instruction with respect to the specifications alleging conspiracy to commit indecent acts.

Slip op. at 6-7. This is the standard indecent acts instruction and the discussion of open and notorious activity as including the presence of a third person is very old law in the military. See United States v. Berry, 20 C.M.R. 325, 330 (1956) (An otherwise lawful sexual act may violate Article 134 if it is committed openly and notoriously, including when the participants know that a third person is present). But Berry long predates Lawrence, and it got harsh treatment from Judge Stucky in his dissent in Goings where he wrote: “I do not believe that Berry remains good law after Lawrence, at least to the extent that it categorically forbids ‘open and notorious’ private, consensual, sexual conduct without any connection to the military other than the accused being a member of the military.” Goings, diss. op. at 14. Moreover, Goings conspicuously lacks an explicit finding that the open and notorious nature of that appellant’s sexual activity was the sine qua non of its unlawfulness. So this instruction seems woefully inadequate under current law.

In Nettles the CCA concludes:

The Supreme Court’s analysis in Lawrence addresses private, consensual sexual activity between two adults. The Lawrence court neither considered nor addressed whether the liberty interest it identified extended to activities involving more than two people, whether simultaneously or consecutively. Cognizant of Lawrence, our superior court’s holding in Goings cited with approval existing military law defining an indecent act as one that was “open and notorious” when the participants know that another was present to witness the sexual activity. 72 M.J. at 206. On these facts, we conclude that the appellant’s acts were not “private.” They are therefore outside the privacy interest identified by the Supreme Court in Lawrence. As such, the appellant’s Constitutional challenge must fail.

Slip op. at 7. This conclusion seems almost reluctant, except for the fact that in recent months the AFCCA keeps finding ways to affirm sex-related convictions as somehow outside the scope of Lawrence. See, e.g.United States v. Timsuren, No. 38146, __ M.J. __ (A.F.Ct.Crim.App. Oct. 2, 2013) (discussed here); United States v. Jagassar, No. 38228 (A.F.Ct.Crim.App. Feb. 4, 2014) (discussed here). And it’s worth noting that in United States v. Harvey, 67 M.J. 758 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (discussed here), the AFCCA found that even if the conduct is protected by Lawrence, it may still be criminalized under Article 133:

[T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. 

Harvey, slip op. at 6. And here I thought the Air Force had the most fun…

The CCA didn’t reference Harvey in its decision in Nettles, but there are many similarities. And while Harvey was partially overruled by CAAF’s decision in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), I think it’s time for CAAF to overrule the rest of that rather disturbing case, where the AFCCA concluded that:

In the case sub judice, the appellant’s act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer.

Harvey, slip op. at 6. Harvey thus stands for the tyrannical proposition that even wholly-private and constitutionally protected conduct may be criminalized in the military if a panel thinks it should be. Goings intimated at that proposition but didn’t go so far. Now with Nettles, CAAF may have the facts it needs to clarify just how far a court-martial panel gets to intrude into a service member’s bedroom in order to make post hoc judgments about what it finds within.

17 Responses to “The AFCCA rejects constitutional protections for threesomes”

  1. Dew_Process says:

    The “Bedroom Police” are alive!
     

    We live in fame or go down in flame. Hey! Nothing’ll stop the U.S. Air Force!
     

    Air Force Song . . . .

  2. Dew_Process says:

    . . .  the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard . . . .
     

    Bond v. United States, Slip Opn. at 20 (2 June 2014): http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf
     
    The “bedroom” however, appears to be a different story!
     

  3. Lieber says:

    This is bullcrap.  The way we’ve internalized Lawrence is basically “we don’t like it so we’re just going to keep distinguishing conduct we don’t like from Lawrence.”  (the funny thing is that you’re probably now better off being gay in terms of protection from the military morality police than being heterosexual…cause it’d be a firestorm if we court-martialed a gay or lesbian officer for consensual sex that didn’t involve fraternization or adultery).  Sometimes we confuse the military with a theocracy and this is one of those times.

  4. Lieber says:

    ok, now that I’ve read the opinion I see that it was a 120 case and the panel went with the lesser charges.  a. I don’t agree with the logic of charging consensual sexual offenses (such as adultery) in 120 cases (for one thing you’re calling the victim a ho if they convict on the consensual offenses); b. it’s military logic that our civilian masters don’t understand (recommend the Orson and the beetles story from GoT this past Sunday night for more on this); c. it doesn’t change anything…just cause you had 120 allegations doesn’t mean that you get to convict on unconstitutional offenses.  either convict on the rape or acquit.  full stop.

  5. stewie says:

    I think CAAF is right legally, but concur with Lieber…enough with the minor sex police misconduct tacked on to a rape case making folks federal felons for stuff they shouldn’t be.  Win the sexual assault case.  If you lose it, then bring an A15 or GOMOR for the lesser offense if you feel like you need to (not advocating that it should happen).

  6. DCGoneGalt says:

    You don’t see the big picture: Without tacking on adultery, sodomy, group sex or some other nonsense dereliction/Art 134 offenses you would end up with a full acquittal.  You need those extra charges to ensure you have a conviction (any conviction) in a sexual assault case.  Sure there was an acquittal on all of the Article 120 charges but after spending hundreds of thousands of dollars on an allegation that a civilian prosecutor wouldn’t take a second look at you finally got the bastard for adultery!  Now that conviction can go on a TJAG website and become a data point in a Senate hearing.  Mission accomplished.

  7. k fischer says:

    DCGG, 
     
    Nailed it!

  8. stewie says:

    I’d agree DCGG, but tacking on adultery/threesome as an offense in a sexual assault case is a time-honored government go-to move that well predates in my experience the recent climate. T’aint new. I saw it in almost every case prior to 07 where it was possible…unfortunately.

  9. RKincaid3 (RK3PO) says:

    Sigh….where oh where is Solorio? (to the tune of “Where or where has my little dog gone…).  Longing for a return to the pre-Solorio nexus days.  Then and only then will this insipid stuff be curtailed–because until then–every little deviation from the “norm” can affect what a commander believes is appropriate for a court-martial.
     
    Then again, curtailing a commander’s unilateral discretion could accomplish the same result without returning to the pre-Solorio/O’Callahan days of yesteryear.
     
    Kudo’s to Dew_Process for invoking Bond v US!

  10. stewie says:

    We don’t need to go all the way back to Solario…2006 would do just fine.

  11. DCGoneGalt says:

    2006?  But they didn’t even have iPhones then!
     
    I eagerly await a case where someone with split personality disorder regrets that their other self masturbated.  If they are entirely separate people in their mind but share their body, then according to the psychs then that would satisfy the “any other person” language of Art 120 for the purposes of sexual contact.  The victim and accused would have to work the scheduling issues out for DC/SVC consultation and for trial participation but this would be something I would pay to watch.  I am sure Rob Schneider would star in a made-for-TV movie with this premise, maybe I should copyright it.

  12. Dew_Process says:

    @ RK3PO – There’s a thread about Solorio on Gene Fidell’s Blog, Global Military Justice Reform, here:
     
    http://globalmjreform.blogspot.com/2014/05/solorio-watch_27.html

  13. k fischer says:

    RK3PO, 
     
    I think that the Three’s Company theme is much better suited for the facts in Nettles:
     

    Come and knock on our door….. We’ve been waiting for you…… Where the kisses are his and hers and his, Three’s company too. Come and dance on on our floor…… Take a step that is new….. We’ve a loveable space that needs your face, Three’s company too. You’ll see that life is a frolic and laughter is calling for you…… Down at our rendez-vous, Three’s company, too!!!!!! 

    I do get a sense from the opinion and the way the facts are portrayed that the Court was saying, “Sounds like a rape to me.”  The sentence disparity argument between Lt Col SC who got no punishment and CPT Nettles who got confinement and a dismissal made me chuckle.  The logic between the conspiracy and the indecency of the act in the Nettles conviction explaining the disparity seems a bit labored.  C’mon!  These were the exact same acts.  One end of the Chinese Finger Cuff got promoted to Lt. Col. and the other end got dismissed!
     
    And, if we are going to say that Servicemembers cross dressing in drag shows are kosher and properly sanctioned on post, then I don’t see why multiple co-actors behind closed doors is criminalized.  
     

  14. Christian Deichert says:

    And, if we are going to say that Servicemembers cross dressing in drag shows are kosher and properly sanctioned on post, then I don’t see why multiple co-actors behind closed doors is criminalized. 

     
    I tried a guy once for transvesticism transvestisism cross-dressing.  This was back before DADT was lifted, and dressing up as a woman and going out on the town with other Soldiers was actually the most normal of his acts that we had in front of Judge Pohl; he also had massive amounts of child porn.  I drew up the specification based on two Navy cases.
     
    Of course, now, I see that the guy had undiagnosed gender disphoria, so my charging decision might be different.

  15. Christian Deichert says:

    I see the “strikethrough” option doesn’t work for me.  Ah, well.

  16. k fischer says:

    CD,
     
    Did he go by “L-O-L-A Lola,” and was the fact that s/he was a man unbeknownst to the other Soldiers?  Because that would really be prejudicial to good order and discipline when one of them found out.  

  17. RKincaid3 (RK3PO) says:

    AAAARRRRGGGHHHH!  Now I have that dog-gone “Three’s Company” tune stuck in my head.  Thanks, K Fisher!  NOT!  :)
     
    Hooah, Dew_Process, on Prof Fidell’s Blog and his draft legislation.  Fascinating stuff.