Private consensual activity may not amount to a crime even if a servicemember has pled guilty to committing one.

It is no secret that some of the crimes that servicemembers have been punished for under the UCMJ involve private consensual sexual activity. For example, adultery is typically a consensual sexual activity, but is also a crime under the UCMJ. Sodomy (which is a charge that is typically used to charge oral sex) is also many times consensual and is also a crime under the UCMJ. In 2003, in U.S. v. Lawrence the U.S. Supreme Court struck down a state statute that made it a crime for two people of the same sex to engage in certain intimate consensual sexual conduct because it violated the constitutional “right to liberty under the Due Process Clause.” This then caused the military courts to call into question the offenses under the UCMJ that involve consensual private sexual activity. Recognizing that constitutional rights may apply differently to servicemembers than they do to civilians, the Court of Appeals for the Armed Forces (CAAF) developed a framework in U.S. v. Marcum, in 2004 to be used in cases which involve criminalizing private consensual sexual activity. Then in 2011, in U.S. v. Hartman, CAAF reversed the finding of guilty to sodomy even though the servicemember pled guilty to the charge. The reason for this decision was because the military judge at the court-martial failed to go through the framework set out in U.S. v. Marcum and more importantly failed to make sure that the servicemember pleading guilty at the court-martial explained on the record why he believed that his private consensual activity was actually criminal. Recently, on October 2, 2013, the Air Force Court of Criminal Appeals in U.S. v. Timsuren examined whether a servicemember’s plea of guilty to fraternization charges and a conduct unbecoming charge that involved potentially private consensual sexual activities should be affirmed. This examimation was made in light of U.S. v. Hartman because, like in U.S. v. Hartman, the court-martial military judge failed to use the Marcum framework and elicit from the servicemember what made his private activity criminal in nature. Ultimately, the convictions for fraternization and conduct unbecoming were upheld because the court was able to distinguish the U.S. v. Timsuren facts from the facts in U.S. v. Hartman. However, this does not mean that will be the result in future court-martial cases or appeals involving private consensual sexual activity. If you are being court-martialed or otherwise charged for private consensual sexual activity or you were previously convicted of an offense involving private consensual sexual activity, give me a call. You need someone to represent you in your court-martial, appeal or other military action who understands the intricacies in the law in this area. I have vast experience and I can help. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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