Thursday, April 09, 2009

AFCCA holds an officer can be convicted for private, consensual sexual conduct even if it's protected by Lawrence and Marcum

AFCCA's Harvey decision is significant. It involves an Air Force chaplain in Turkey who had a consensual homosexual relationship with two Turkish men. He was found guilty of conduct unbecoming an officer and gentleman for engaging in sodomy with one of the two Turkish men.

AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."

Turning to the facts of the case, the court reasoned:
[W]e conclude that the 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. This is such a case. 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. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.
Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).

As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.

My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.


John O'Connor said...

"Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA."

This was an issue worthy of juidcial review. That said, if I were a JAG (and I know, there are lots of reasons I'm not), I would strongly consider never referring a subjurisdictional case to the CCA out of fear that some misguided (I deleted a more earthy adjective) court someday would say that this action somehow supports giving the CCA writ power over subjurisdictional cases I elect not to refer to the CCA.

Anonymous said...

CAAFLOG: This is interesting, but are you going to comment on the recent NMCCA decision in the new Article 120 case - Neal? We've been awaiting your thoughts on the opinion, the constitutionality of the new Art. 120 (particularly the affirmative defense of consent), and the constitutionality of the burden-shifting language in Art 120(t)(16) that NMCCA didn't think was ripe in Neal.

Looking forward to your analysis.

Phil Cave said...


Isn't there a significant distinction between coram nobis issues and a statutory grant under Article 69(d) and the principals of certification.

John O'Connor said...

My comment had nothing to do with Denedo or coram nobis. It had to do with the mindless argument that CCAs have writ jurisdiction over subjurisdictional courts-martial because, well, there was this once or twice that the JAG certified one over.

LexICON said...

How does the AFCCA reconcile their holding with the doctrine of overbreadth, in light of US v. Williams, 128 S. Ct. 1830 (2008)?

The Court stated in that case, "According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech."

I suppose we can split hairs on speech vice conduct, but it seems to me that without a nexus to some underlying misconduct, a Conduct Unbecoming charge would be teethless.

Anonymous said...

I think the AFCCA construed the third Marcum factor too narrowly, seemingly asserting that Marcum created an exclusive laundry list of additional factors relevant solely in the military environment, and then proceeded to say they did not exist in this case. It seems to me that had he been charged under 125, some of these factors existed which would have resulted in a constitutional conviction under 125. For instance, as our long-term and/or temporary presence in foreign countries is largely a matter of agreement between the foreign country and ours (not to mention the agreed upon scope of our/their activity relative to that presence) and these consent is partly a function of the behavior of our personnel while there, any activity that is in violation of our laws (and their law or social/moral customs) could negatively impact our future freedom of operation there and ultimately negatively impact National Security.

I think the more important part of Judge Jackson’s opinion is the question or law or fact piece.

Anonymous said...

Nice Job AFCCA. There is no reasonable argument that this officer's conduct was "becoming." He is an embarrassment, and should have been tried by a GCM.

Anonymous said...

Anon 0840, surely you are not implying that, had the Chaplain's offenses occurred on US soil, the outcome would be different.

Anonymous said...

Not implying that at all. Just saying that under the facts presented the Marcum third factor test is satisfied and I disagree with AFCCA's conclusion that it was not, thus requiring it to expand the analysis.

Socrates said...

This ruling is like saying than an officer may have a liberty interest in shitting, as long as the shit does not stink. The "exception" swallows the rule. And if one does not mind a dirty pun, the court doth protest a bit much about the swallowing.

If one detaches themselves from the sexual aspect of this case and just looks at liberty interests, we can see pretty clearly that this ruling is thinly disguised homophobia. To test this hypothesis, think of a liberty you like: praying in a Christian church, chosing to have three daughters, reading the Satanic verses, having an abortion, whatever. One can't look to the "community," domestic or foreign, to say that the liberty interest is superceded. At least not so lightly. I think that women officers will at least intuitively "get" the argument that their right to have an abortion cannot be backdoored at officer unbecoming if the command or community are deeply offended by it.

If a single officer had sex with two Turkish women, different result. The felacio factor was gratuitous - just to make sure the homosexual discrimination was not TOO thinly disguised. If sexual relations is a liberty interest, then one can only limit that liberty around the edges, not at its core. For example, no sex or related conduct at the military workplace, on-base, in uniform, etc. But in the privacy of one's own abode, an adult should be able to have sex with other consenting adults as one pleases. Even officers in the US military.

Anonymous said...

John O'Connor said...
My comment had nothing to do with Denedo or coram nobis. It had to do with the mindless argument that CCAs have writ jurisdiction over subjurisdictional courts-martial because, well, there was this once or twice that the JAG certified one over.
Does not Unger v. Ziemniak, 27 MJ 349 (CMA 1989) hold that there is writ jurisdiction to review a “subjurisdictional” case forwarded to TJAG pursuant to Article 69?

John O'Connor said...

Anon 1041:

Maybe I'm not making my point clearly enough. I don't dispute that CAAF has jurisdiction to review any case reviewed by the CCA, including subjurisdictional cases referred over by the JAG. See UCMJ, art. 67(a)(3).

My point is a little different. Some are of the view that a CCA can reach out and grab a subjurisdictional case that WAS NOT REFERRED TO IT under its All Writs power on the theory that there is "potential" jurisdiction over any subjurisdictional case because the JAG theoretically can refer such cases over to the CCA.

That mode of thinking, which regrettably has been accepted from time to time, would make me think really hard about referring anything to the CCA because that act might be used later by an accused who is trying to force CCA review of something the JAG DID NOT REFER TO THE CCA, tyhe argument being that sometimes JAGs do this, so there's a potential jurisdiction over all subjurisdictional cases.

Sorry about the ALL CAPS. Not trying to yell, but I can't figure out a better way to emphasize those points, and it's clear that my idea isn't coming across well.

Anonymous said...

Wow. What a ridiculous result from AFCCA. If having private, consensual sex with a foreign national is conduct unbecoming, we'd better be prepared to lock up most of the single officers stationed abroad. The only thing that makes this case any different is that the conduct was homosexual, and that's exactly the sort of logic the Supreme Court struck down in Lawrence.

Anonymous said...


2 Turkish women at the same time? Actually I would suspect that it may be charged as an indecent act.

Actually I think it is a case-by-case issue. Fort instance, if a single male officer engaged in private consensual sex with the 18-year-old virgin female who was the daughter of the mayor of Naples and who was engaged to be married to the son of the Mayor of Salerno, then maybe. What if she was in a convent at the time?

I just don't think it is fair to make sweeping generalizations that the opinion was the result of homophobia.

Anonymous said...

Anon 12:07,

I seem to recall the opinion mentioning that there were rumors being circulated in the Turkish community that the first male was engaging in sex with the officer (BTW, what denomination????), which caused the first male to be upset and to then do something about it (secretly tape the other acts with the second male). Thus, maybe the community that has the problem with the activity was the Turkish citizens, but be that as it may, our military must be sensitive to local customs and value systems to avoid enaging in activity that would be considered improper in their community because it could impact our nation's ability to achieve its foreign policy goals.

Anonymous said...

I'm sure the locals might have a problem with me practicing my Christian faith as well, but that doesn't make my conduct unbecoming if I am rumored to be a Christian and then do something in private that later is discovered and confirms the rumors.

Anonymous said...

Assuming that the chaplain has the basic clearance that officers receive I wonder if the Chaplain reported his repeated contacts with foreign nationals to the appropriate command individuals?

Bridget said...

Interesting. I would say this has several levels of danger that should make many a red-blooded officer nervous. First, we have the court affirming that the Marcum factors are a matter of law to be determined by the court, not the panel. You may think that should not be at issue, but it is not so clear in Marcum.

The court appears to have equated the social disapproval of the locals with the kind of scandal that would make the behavior unbecoming. I ponder the plight of a female officer ,perhaps a pilot, not covering her head and face in a country where that is the custom. Otherwise lawful conduct-unbecoming?

I will need to spend a bit more time with this decision. But, at first glance, it comes very close to saying that sodomy between persons of the same sex is conduct unbecoming. or perhaps it creates the idea that the unhappiness of some persons about the constitutionally protected behavior is sufficient to render it criminal under 133.

Sweet Socrates, are we agreeing? :-)

John O'Connor said...

My God, I might be agreeing with Bridget.

I see it this way:

1. CAN homosexual conduct involve such surrounding circumstances that it would fail the Lawrence/Marcum requirements and yet still be a violation of Article 133? I think the answer to that is clearly yes.

2. DO the surrounding circumstances identified here involve the sort of conduct that should nudge a case from not criminal under Article 125 to criminal under Article 133? I don't think so, mainly for the reasons Bridget says. The additional facts here basically involve an allegation that there were rumors that the accused was engaging in conduct that would not be criminal under Lawrence/Marcum, and that the accused acted consistent with those rumors. I just don't see the fact that locals might be culturally annoyed by an accused's performance of protected nehavior or engaging in legal behavior when there's a rumor you're engaging in that illegal behavior should run afoul of Article 133.

3. What's that mean? You can debate whether Lawrence and Marcum are correctly decided (and the answer need not be the same for each case), but I can't really see how Marcum could bar a sodomy prosecution under these facts without Article 133 being available too. The only conclusion I can reach is that either this case or Marcum is wrong.

John O'Connor said...

Proofreading is my friend. Change "available" to "unavailable" in paragraph 3 of my last.

Anonymous said...

J O'C,

Agree with your corrected version. Either it is barred under 125 and 133 or it is allowed under both.

I'm sure CAAF will grant.

Mike "No Man" Navarre said...

I can officially say that Pigs have flown on CAAFlog after that JO'C post.

Anonymous said...

This case seems less about homophobia and more about violating a position of trust.
If he'd been cavorting with two local females, and if local uproar was the same, I think we see the same result, because of the position and impact to duties.

Perhaps the fact that this was a Chaplain makes the difference. Whatever his denomination, and sidestepping admittedly important debates over a paid chaplaincy or homosexual ministers, certainly his duties included 1) officiating at base religious services, 2) meeting with local community and religious leaders, and 3) performing acts of religious consequence for adherents (e.g., sacraments or confession). Given his unique and very public position, his conduct likely interfered with these duties and rendered him unserviceable.

Example: I just transferred from a liberal local CONUS community rocked by multiple clergy sex scandals; some illegal (exploiting kids), some immoral (adultery). Regardless of the type of conduct, the pastor usually was dishonored and lost their pulpit. Cf.
several notable ex-elected officials who come to mind ...

Anonymous said...

Anon 0435, do you equate consensual homosexual acts between adults with pedophilia and adultery?

Socrates said...

I have been reflecting on the term "homophobia," and think it is too loaded a term. It implies "fear" is the animus. I cannot prove that, but do not discount the possibility. I think "homosexual discrimination" is a much more straightforward charge.

It is also telling that all pro-discrimination posters (except J'OC) fail to even breathe the phrase "liberty interest." Its as if they have never accepted the legal paradigm that they must deal with. This is not a debate to be held at the ab initio stage. We have a scale we must use.

Can a male officer be court-martialed for sodomwizing his wife? What about having really dirty-filthy sex - including the proverbial "money shot," with his girlfriend? How about getting a lap dance at the strip club? Can anyone cite such prosecutions? I wish people would provide legal analysis, instead of a kind of moral aesthetics.

I understand the point about the reputation of the military, remind you that we have appointed openly homsexual ambassadors to foreign nations, and do not think I am advocating our military return to Sodom & Gomorrah when I insist on some threshold of privacy and sexual liberty.

I find it tellling that a number of posters have suggested theoretical heterosexual court-martials, but can't actually cite any. This is Sherlock Holmes and the dog the does not bark. The silence speaks volumes.

Good points on the position of trust argument and the special nature of the chaplaincy. My retort here would be that surely our military must reserve some "space" between undesirable conduct that warrants poor FITREPs or separation, and criminal conduct deserving of such punishments as jail time.

John O'Connor said...


I appreciate your efforts to exclude me from the group of posters you were criticizing, but I actually don't think my posts fit into the category of "pro-discrimination" in any event.

I merely said that while, in my view, is seems possible that some homosexual acts could be protected under Lawrence/Marcum but still violate 133, nothing identified in this case would seem to permit that result here, that either both 125 and 133 are in play or they both are out of play.

I don't think those comments are pro- or anti- "discrimination." I will say that I believe Congress can legislate with considerably more freedom in the military context than it (or a state) can in the civilian context, so I have my doubts about whether Lawrence is so easily translatable to the military context. I've not really thought that out in any nuanced way, so the most I can say right now is that the legal analysis is different based on Congress's unique power to regulate the military.

Anonymous said...


How about 61 MJ 560 and 61 MJ 578? While both have some additional factors (like Harvey, but more substantial (especially 578)) which allow for the constitutionality of the convictions, they each contain multiple charges for private, adult, heterosexual sex activity.

Christopher Mathews said...

Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying ...Actually, that's a remarkably accurate statement -- it was a young major in the Air Force's Military Justice Division who first noticed the seeming disconnect between this case, Lawrence, and Marcum, and (after some research and discussion) concluded it was a good candidate for certification. I'm glad Lt Gen Rives agreed.

I share John O'Connor's sentiment that this is a decision difficult to square with existing precedent. Either non-forcible sodomy is Constitutionally permissible, or it's not. I don't think it truly matters whether the prosecution is brought under Article 133 or Article 125; the chilling effect on a protected liberty interest is going to be the same.

(Of course, I've long wondered how much sense Marcum really makes; it seems to me that most factual scenarios that meet the test for prosecution in light of that decision would also qualify for prosecution under some other provision of the Code. I'm not sure why those offenses are deserving of additional punishment simply because there's sodomy involved, given the Supreme Court's ruling in Lawrence. I hope CAAF will take this case, if only for the opportunity to clarify its approach to these sorts of cases.)

Anonymous said...

***It is also telling that all pro-discrimination posters (except J'OC) fail to even breathe the phrase "liberty interest." Its as if they have never accepted the legal paradigm that they must deal with.***

If Lance Corporal Snuffy can get NJPed and chaptered out for having private sex with the wife of a major, then this officer can darn sure get a CM conviction for multiple gay sex partners.

The only people who get away with sex in violation of regulations and the UCMJ are: 1) general officers; and 2) women pilots.

In fact, women officer pilots in the AF can order an enlisted woman in their command to a duty status at a given place for the purpose of having sex with the spouse of that enlisted woman...and walk clean with a simple SILT.

Everyone else burns, so this guy burns.