CAAF decided United States v. Castellano, No. 12-0684/MC, 72 M.J. 217 (CAAFlog case page) (link to slip op.), on May 23, 2013, finding that since an act of sodomy may not be criminalized unless there are factors that remove sexual activity from the protected liberty interest identified by the Supreme Court in Lawrence v. Texas, then the existence of such factors must be determined by the trier of fact, reversing the NMCCA and setting aside the finding of guilty of sodomy and the sentence.
Judge Ryan writes for a unanimous court, with Judge Stucky concurring in a separate opinion in which he voices some non-dispositive (to this case) disagreement with the rest of the court.
The Appellant was convicted (in accordance with his pleas) of adultery, and (contrary to his pleas) of one specification of attempted adultery, two specifications of indecent conduct, one specification of sodomy (as a LIO of forcible sodomy), and two specifications of assault consummated by a battery (as LIOs of aggravated sexual contact), by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for eighteen months, reduction to E-1, total forfeitures, and a bad-conduct discharge.
The NMCCA set-aside the assault convictions due to the trial military judge’s failure to properly instruct the members on the availability of the defense of mistake of fact as to consent. The CCA then reassessed and approved the adjudged sentence.
The NMCCA also considered, and rejected, a challenge to the trial military judge’s application of the factors outlined in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In Marcum, CAAF applied the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), to sodomy prosecutions under Article 125, UCMJ, via a three-part 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? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?” Marcum, 60 M.J. at 206-207.
The Appellant argued that the trial military judge erred when he considered the Marcum factors as a question of law, and refused to submit them to the members for their determination as de facto elements. The NMCCA rejected this argument, as it had before (see United States v. Useche, 70 M.J. 657 (N-M.Ct.Crim.App. 2012), rev. denied, 71 M.J. 379 (C.A.A.F. 2012); see also United States v. Stratton, No. 201000637 (N-M.Ct.Crim.App. Jan. 26, 2012) (unpublished) (discussed here)), and as it did again afterward (see United States v. Pearce, No. 201100110 (N-M.Ct.Crim.App. Nov. 28, 2012) (unpublished)). The NMCCA’s rejection of the Marcum-factors-as-elements argument hasn’t prevented that court from granting relief (it set-aside the findings in Stratton after concluding that the military judge improperly applied the factors), but that court has consistently held – as it did in this case – that “[j]udicially created principles, such as the Marcum factors, are not elements of offenses.” United States v. Castellano, No. 201100248 (N-M.Ct.Crim.App. Jun. 26, 2012). And the NMCCA is not alone. The AFCCA reached the same conclusion in United States v. Harvey, 67 M.J. 758, 763 (A.F.Ct.Crim.App. 2009), rev. denied, 68 M.J. 489 (C.A.A.F. 2010) (“The appellant asserts that the Marcum factors are de facto elements of his Article 133, UCMJ, offense and that it was error for the military judge not to instruct the members on the Marcum factors. We disagree.”).
But CAAF explains that this conclusion is wrong. Judge Ryan begins her discussion by explaining that “in Lawrence, the Supreme Court identified a constitutionally protected liberty interest in private sexual activity between ‘full[y] and mutual[ly] consent[ing]’ adults.” Slip op. at 10 (quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003)). She continues, explaining that in Marcum, the court upheld the constitutionality of Article 125’s criminalization of sodomy by construing the statute to apply only to acts of sodomy that involve a factor identified by the Supreme Court as not involved in Lawrence, or a factor unique to the military environment that affect the nature and reach of Lawerence. This leads to a critical analytical turning point: Marcum factors are not statutory elements, however “but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction.” Slip op. at 11-12. Accordingly, the existence of such a factor cannot be left to the military judge’s discretion.
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