Last week CAAF published a short per curiam opinion in United States v. Whitaker, No. 13-5004/CG, 72 M.J. 292 (CAAFlog case page) (link to slip op.). The case was certified by the Judge Advocate General of the Coast Guard in February, as something of a Medina trailer addressing the Coast Guard CCA’s application of Hartman.

In United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), CAAF reversed the NMCCA and set aside that appellant’s plea of guilty of consensual sodomy in violation of Article 125 because the military judge’s inquiry with the appellant into the factual basis for his plea did not adequately establish why that appellant’s conduct was criminal in light of the liberty interest identified by the Supreme Court in  Lawrence v. Texas, 539 U.S. 558 (2003), and applied by CAAF in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

Earlier this term, in United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013) (which like this case was also certified by the Coast Guard JAG), CAAF explained that a plea of guilty to consensual sodomy could not survive review where “the inquiry did not establish the accused’s personal understanding of the relationship between the facts he was admitting and why his plea to voluntary sexual activity with an adult could nonetheless be subject to criminal sanction.” Slip op. at 5. CAAF affirmed the CGCCA’s decision vacating the conviction in Medina.

In Whitaker, the CGCCA also reversed the conviction for consensual sodomy, entered in accordance with the Appellee’s pleas at a general court-martial composed of a military judge alone. He pleaded guilty to sodomy, assault consummated by a battery (three specifications), and providing alcohol to a minor, in violation of Articles 125, 128, and 134, UCMJ, and was sentenced to confinement for fifteen months, reduction to E-1, total forfeitures, and a dishonorable discharge.

“At trial, Appellee stipulated that he committed oral sodomy upon a sleeping shipmate by inserting his penis between her lips and that he knew she ‘was asleep and an unwilling participant.'” Slip op. at 2. The CGCCA focused its analysis “on the absence of the type of
guilty plea colloquy discussed in [Hartman]. The CGCCA concluded that the military judge’s failure to explain to Appellee either that certain sexual activity is constitutionally protected under [Lawrence], or why an act of sodomy committed upon a sleeping victim fell outside the bounds of Lawrence’s protected liberty interest, rendered Appellee’s plea improvident.” Id. (citations omitted). But CAAF reverses, finding that the Appellee’s plea was provident:

Here, Appellee admitted in the stipulation of fact to an act of sodomy occurring without consent, since a sleeping victim cannot consent. Nonconsensual sexual activity is simply not protected conduct under Lawrence, and an act of sodomy with a sleeping victim does not implicate constitutional protections or even arguably constitute permissible behavior. Thus, contrary to the CGCCA’s reasoning, the military judge did not err in failing to explain why Appellee’s conduct was subject to criminal sanction.

Slip op. at 3-4 (citations omitted).

Even though this plea survived review, I suspect that any military judge hearing a plea in a similar case today would conduct a Hartman inquiry as a matter of prudence.

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