UNITED STATES, Appellee

v.
Eric P. MARCUM, Technical Sergeant
U.S. Air Force, Appellant
No. 02-0944
Crim. App. No. 34216
United States Court of Appeals for the Armed Forces
Argued October 7, 2003
Decided August 23, 2004
BAKER, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, AND ERDMANN, JJ., joined. CRAWFORD, C.J., filed
a separate opinion concurring in the result in part and
dissenting in part.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Colonel Beverly
B. Knott, Major Terry L. McElyea, and Captain Jennifer K.
Martwick (on brief).
For Appellee: Colonel LeEllen Coacher (argued); Major Jennifer
R. Rider and Lieutenant Colonel Lance B. Sigmon (on brief);
Lieutenant Colonel Robert V. Combs and Captain C. Taylor Smith.
Amici Curiae for Appellant: Stuart F. Delery, Esq. (argued);
Josh Goldfoot, Esq. and Alison J. Nathan, Esq. (on brief) for
The American Civil Liberties Union, et. al. Eugene R. Fidell,
Esq. (on brief) for Social Scientists and Military Experts.
Amicus Curiae for Appellee: Colonel Lauren B. Leeker,
Lieutenant Colonel Margaret B. Baines, Captain Matthew J.
MacLean (on brief) for the United States Army, Government
Appellate Division.
Military Judge: S. A. Gabrial
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

United States v. Marcum, No. 02-0944/AF

Judge BAKER delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by officer
members of dereliction of duty by providing alcohol to
individuals under the age of 21, non-forcible sodomy, forcible
sodomy, assault consummated by a battery, indecent assault, and
three specifications of committing indecent acts in violation of
Articles 92, 125, 128, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. 892, 925, 928, and 934 (2000),
respectively.

Appellant was sentenced to confinement for 10

years, a dishonorable discharge, total forfeitures, and

reduction to the lowest enlisted grade.

The convening authority

reduced the confinement to six years, but otherwise approved the

findings and sentence.
The case was reviewed by the Air Force Court of Criminal
Appeals, which affirmed the findings and sentence.

United

States v. Marcum, No. ACM 34216, slip op. (A.F. Ct. Crim. App.
July 25, 2002).

This Court granted review of the following

issues:
ISSUE I
WHETHER APPELLANT SUFFERED PREJUDICIAL ERROR WHEN HIS TRIAL
DEFENSE COUNSEL REVEALED PRIVILEGED COMMUNICATIONS WITHOUT
APPELLANTS PERMISSION DURING THE SENTENCING PHASE OF
APPELLANTS TRIAL IN VIOLATION OF M.R.E. 502 AND 511.

United States v. Marcum, No. 02-0944/AF

ISSUE II
WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL
THAT THE MAXIMUM SENTENCE IN APPELLANTS CASE WAS LIFE
WITHOUT PAROLE WHEN THE PRESIDENT HAD NOT AUTHORIZED THAT
PUNISHMENT FOR APPELLANTS OFFENSES.
ISSUE III
WHETHER APPELLANTS CONVICTION FOR VIOLATING ARTICLE
125, UCMJ, BY ENGAGING IN CONSENSUAL SODOMY (CHARGE
II, SPECIFICATION 1) MUST BE SET ASIDE IN LIGHT OF THE
UNITED STATES SUPREME COURTS HOLDING IN LAWRENCE V.
TEXAS, 123 S.CT. 2472 (2003).
Addressing these issues out of order, we hold that Article
125, UCMJ, is constitutional as applied to Appellant.
Constitutional rights generally apply to members of the
armed forces unless by their express terms, or the express
language of the Constitution, they are inapplicable.

However,

Appellants actions in the military context fell outside the

zone of autonomy identified by the Supreme Court as a protected
liberty interest.

Among other things, Appellant was convicted

of non-forcible sodomy with a subordinate airman within his

chain of command.

An Air Force instruction prohibits such

sexual conduct between servicemembers in differing pay-grades

and within the same chain of command.

This instruction provides

for potential criminal sanctions through operation of Article

92.

This instruction evidences that Senior Airman H,

Appellants subordinate, was in a military position where

United States v. Marcum, No. 02-0944/AF

consent might not easily be refused.

Lawrence v. Texas, 539

U.S. 558, 578 (2003).

Civilian defense counsel violated Military Rule of Evidence
502 [hereinafter M.R.E.] when he submitted a twenty-page pretrial statement as a sentencing exhibit without Appellants
consent.

This statement was prepared by Appellant for his

defense counsel to use in preparation for trial.

The statement

depicts in graphic detail Appellants sexual encounters with six

members of his Air Force unit.

Although Appellants trial

testimony recounted much of the same information contained

within the statement, we conclude that the timing, tone, and
graphic substance of this privileged communication prejudiced
Appellant during sentencing.
In light of our decision on Issue I, we need not decide
whether life without parole was an authorized punishment for
forcible sodomy at the time of Appellants offenses.

As a

result, we affirm with respect to the findings, but reverse with

respect to the sentence.
I. Issue III Article 125
Facts
Appellant, a cryptologic linguist, technical sergeant (E6), and the supervising noncommissioned officer in a flight of
Persian-Farsi speaking intelligence analysts, was stationed at
Offutt Air Force Base, Nebraska.

His duties included training

United States v. Marcum, No. 02-0944/AF

and supervising airmen newly assigned to the Operations Training
Flight.
While off-duty Appellant socialized with airmen from his
flight at parties.

According to the testimony of multiple

members of his unit, airmen often spent the night at

Appellants off-base home following these parties.

The charges

in this case resulted from allegations by some of these

subordinate airmen that Appellant engaged in consensual and
nonconsensual sexual activity with them.
Among other offenses, Appellant was charged with the
forcible sodomy of Senior Airman (SrA)

(E-4).

Specifically, Specification 1 of Charge II alleged that

Appellant did, at or near Omaha, Nebraska, between on or about
1 September 1998 and on or about 16 October 1998, commit sodomy
with Senior Airman H

by force and without

consent of the said Senior Airman H.

With regard to the charged offense, SrA H testified
that after a night of drinking with Appellant he stayed at
Appellants apartment and slept on the couch.

SrA H

further testified that at some point he woke up to find

Appellant orally sodomizing him.

Although Appellant testified

that he did not perform oral sex on [SrA H] at all, he

testified to kissing [SrA H] penis twice.

When asked

did you, at any time, use any force, coercion, pressure,

United States v. Marcum, No. 02-0944/AF

intimidation or violence?

Appellant responded, No, sir, I did

not and neither did Airman H.

Moreover, Appellant

testified that the activity that occurred between Appellant and

SrA H was equally participatory.
According to SrA Hs testimony, he did not say
anything to Appellant at the time of the charged incident, but
grabbed the covers, pulled them up over his torso, and turned
away from Appellant into the couch.

SrA H left the

apartment soon after this incident took place.

SrA H

testified that he didnt protest at the time because he didnt

know how Appellant would react.

SrA H also testified

that Appellants actions made him scared, angry, and

uncomfortable.
According to SrA H, he later confronted Appellant
about this incident.

He told Appellant, I just want to make it

clear between us that this sort of thing doesnt ever happen

again.

Nevertheless, SrA H forgave Appellant and

continued their friendship.

SrA H testified that he

considered his relationship with Appellant like that of a

father type son relationship or big brother, little brother type
relationship[.]

Subsequent to this incident, SrA H

explained how he and Appellant salsa danced together and kissed

each other in the European custom of men.

SrA H also

told Appellant that he loved him, bought him a t-shirt as a

United States v. Marcum, No. 02-0944/AF

souvenir, and sent numerous e-mails to Appellant expressing his
continued friendship.
Appellant and SrA H also provided testimony
regarding an incident that occurred prior to the charged
offense.

SrA H testified that during the incident he

woke up in the morning and he was on top of Appellant with his

face near Appellants stomach.

Appellant testified, I was

laying on my side, actually almost on top of the couch, with my

belly on the couch but turned a little bit like this towards,
with my face towards the rest of the living room.
H was [on] top of me with, facing me.

Airman

Airman H

was moving his pelvis area against my butt which is what woke me
up.

He had an erection, he had his arm around me, around the

part that was actually touching the couch.

At the time of the charged conduct in question, Appellant
and SrA H were both subject to Dept of the Air Force,
Instruction 36-2909 (May 1, 1996).

This instruction addresses

professional and unprofessional relationships within the Air

Force.

Dept of the Air Force, Instruction 36-2909 is subject

to criminal sanction through operation of Article 92 (Failure to

obey order or regulation).

Although this instruction was not

admitted into evidence at trial, Appellant admitted during

cross-examination that he was aware of an Air Force policy and

United States v. Marcum, No. 02-0944/AF

that through his actions he had broken more than an Air Force
policy.
A panel of officers and enlisted members found Appellant
not guilty of forcible sodomy but guilty of non-forcible
sodomy in violation of Article 125.
21, 2000.

He was convicted on May

The convening authority approved his sentence except

for the term of confinement on September 6, 2000.

Subsequent to the trial, action by the convening authority,
and the Air Force Court of Criminal Appeals review in this
case, the Supreme Court granted certiorari in Lawrence v. Texas,
a case challenging the constitutionality of a Texas statute
criminalizing same sex sodomy.

Lawrence was argued on March 26,

2003, and decided on June 26, 2003.

Appellant petitioned this

Court for review on September 23, 2002.

petition on March 10, 2003.

This Court granted his

Appellants supplemental issue

regarding the Supreme Courts ruling in Lawrence was granted by

this Court on August 29, 2003.
Discussion
A.

Article 125 Text

Article 125 states:

(a)

Any person subject to this chapter who engages in

unnatural carnal copulation with another person of
the same or opposite sex or with an animal is guilty
of sodomy. Penetration, however slight, is
sufficient to complete the offense.

United States v. Marcum, No. 02-0944/AF

(b)

Any person found guilty of sodomy shall be punished

as a court-martial may direct.

As we stated in United States v. Scoby,

By its terms, Article 125 prohibits every kind of
unnatural carnal intercourse, whether accomplished by
force or fraud, or with consent. Similarly, the
article does not distinguish between an act committed
in the privacy of ones home, with no person present
other than the sexual partner, and the same act
committed in a public place in front of a group of
strangers, who fully apprehend in the nature of the
act.
5 M.J. 160, 163 (C.M.A. 1978).

Thus, Article 125 forbids sodomy

whether it is consensual or forcible, heterosexual or

homosexual, public or private.
B.

Arguments

Appellant challenges his conviction on the ground that

Lawrence recognized a constitutional liberty interest in sexual
intimacy between consenting adults in private.

Appellant argues

that Article 125 suffers from the same constitutional

deficiencies as the Texas statute in Lawrence because both
statutes criminalize private consensual acts of sodomy between
adults.

Appellant further contends that in light of the Supreme

Courts rejection of Bowers v. Hardwick, 478 U.S. 186 (1986),

Appellants conviction violates the Due Process Clause.

As a

result, Appellant argues that Article 125 is either

unconstitutional on its face or unconstitutional as applied to
his conduct.

United States v. Marcum, No. 02-0944/AF

The amici curiae, arguing in support of Appellants
position, assert that Article 125 is unconstitutional on its
face.

According to the amici, the Supreme Court placed Lawrence

within its privacy line of jurisprudence by overruling Bowers

and effectively deciding that private, consensual, sexual
conduct, including sodomy, is a constitutionally protected
liberty interest.

See Lawrence, 539 U.S. at 577.

As with other

fundamental rights, the amici contend that a statute purporting

to criminalize a fundamental right must be narrowly tailored to
accomplish a compelling government interest.

The amici argue

that Article 125 is not narrowly tailored because it reaches,

among other conduct, the private, consensual, off-base, intimate
activity of married military persons and their civilian spouses.
Arguing in the alternative, quoting Lawrence, the amici do not
dispute that the interests in good order and discipline, and in
national security, are important.

But the importance of those

interests is irrelevant, because there is simply no basis to

conclude that they are even rationally related to Article 125,
let alone sufficiently advanced by that law to justify its
onerous burdens on the full right to engage in conduct

The amici curiae referred to in this opinion are represented in

the Brief of Amici Curiae in support of Appellant on behalf of
the American Civil Liberties Union, the American Civil Liberties
Union of the National Capital Area, Lambda Legal Defense and
Education Fund, Servicemembers Legal Defense Network, and
Retired Members of the Military.
10

United States v. Marcum, No. 02-0944/AF

protected by the substantive guarantee of liberty.

Under both

arguments, the amici maintain that the government has no

legitimate or compelling military interest in regulating
Appellants private conduct.
The Government argues that Lawrence is not applicable in
the military environment due to the distinct and separate
character of military life from civilian life as recognized by
the Supreme Court in Parker v. Levy, 417 U.S. 733 (1974).

The

Government further argues that because the Supreme Court did not
expressly state that engaging in homosexual sodomy is a
fundamental right, this Court should analyze Article 125 using
the rational basis standard of review.

Utilizing this standard,

the Government contends Article 125 is constitutional because it

is rationally related to a legitimate state interest.
Specifically, the Government maintains that Article 125
criminalizes conduct that create[s] an unacceptable risk to the
high standards of morale, good order and discipline, and unit
cohesion within the military as recognized by Congress in 10
U.S.C. 654(a)(15).
Whether Appellants conviction must be set aside in light of
the Supreme Courts holding in Lawrence is a constitutional
question reviewed de novo.

Jacobellis v. Ohio, 378 U.S. 184,

190 (1964).
C.

The Lawrence Decision

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United States v. Marcum, No. 02-0944/AF

The petitioners in Lawrence challenged the
constitutionality of a Texas statute criminalizing same sex
sodomy.

See 539 U.S. at 562.

This statute provided that [a]

person commits an offense if he engages in deviate sexual

intercourse with another individual of the same sex.

Id. at

563 (quoting Texas Penal Code Ann. 21.061(a) (2003)).

The

Supreme Court determined at the outset that the statute posed a

question of substantive due process:

whether the petitioners

were free as adults to engage in the private conduct in the

exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution.

Id. at 564.

The

pertinent beginning point for its review, the Supreme Court

stated, was Griswold v. Connecticut, 381 U.S. 479 (1965).

Id.

Griswold addressed the right to a marital zone of privacy in the

context of a Connecticut law proscribing the use of
contraception and counseling regarding contraception.
U.S. at 482.

See 381

This liberty interest was subsequently extended

outside the marital context in Eisenstadt v. Baird, 405 U.S. 438

(1972)(right of individuals, married or unmarried, to have
access to contraceptives) and Carey v. Population Services
Intl, 431 U.S. 678 (1977)(right to distribute contraception).
See Lawrence, 539 U.S. at 565-66.
Having framed the question as one of liberty, the Supreme
Court indicated that [t]o say that the issue in Bowers was

12

United States v. Marcum, No. 02-0944/AF

simply the right to engage in certain sexual conduct demeans the
claim the individual put forward[.]

Id. at 567.

The Supreme

Court also characterized the statutes in Bowers and Lawrence as

seeking
to control a personal relationship that, whether
or not entitled to formal recognition in the law,
is within the liberty of persons to choose
without being punished as criminals.
This, as a general rule, should counsel
against attempts by the State, or a court, to
define the meaning of the relationship or to set
its boundaries absent injury to a person or abuse
of an institution the law protects.

Id.

Within this framework the Supreme Court overruled Bowers:

The rationale of Bowers does not withstand careful analysis. .
. .

Bowers was not correct when it was decided, and it is not

correct today.

It ought not to remain binding precedent.

Id.

at 577-78.
With respect to the Lawrence petitioners, the Court stated:
The case does involve two adults who, with full
and mutual consent from each other, engaged in
sexual practices common to a homosexual
lifestyle. The petitioners are entitled to
respect for their private lives. The State
cannot demean their existence or control their
destiny by making their private sexual conduct a
crime. Their right to liberty under the Due
Process Clause gives them the full right to
engage in their conduct without intervention of
the government. It is a promise of the
Constitution that there is a realm of personal
liberty which the government may not enter. The
Texas statute furthers no legitimate state

13

United States v. Marcum, No. 02-0944/AF

interest which can justify its intrusion into the
personal and private life of the individual.
Id. at 578 (citing Planned Parenthood v. Casey, 505 U.S.
833, 847 (1992)).
While finding the Texas statute unconstitutional, the
Supreme Court stated that [t]he present case does not involve
minors.

It does not involve persons who might be injured or

coerced or who are situated in relationships where consent might

not easily be refused.
prostitution.

Id.

It does not involve public conduct or

The Supreme Court did not expressly state

whether or not this text represented an exhaustive or

illustrative list of exceptions to the liberty interest
identified, whether this text was intended to suggest areas
where legislators might affirmatively legislate, or whether this
text was intended to do no more than identify areas not
addressed by the Court.

Nor did the Supreme Court squarely

place its analysis within a traditional framework for

constitutional review.
(1)

Standard of Constitutional Review

The amici, in their primary argument, contend that strict

scrutiny should apply to this Courts review of Article 125
because the Article impinges on a fundamental constitutional
liberty interest.

This follows from the amicis conclusion that

the Supreme Court overruled Bowers . . ., and held the Texas

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United States v. Marcum, No. 02-0944/AF

sodomy prohibition unconstitutional because the Due Process
Clause of the Fourteenth Amendment protects a fundamental right
of adults to make decisions regarding private, consensual sexual
conduct, including sodomy.

As a result, the amici maintain

that Article 125 is unconstitutional because it is not narrowly

tailored to achieve a compelling government interest.
In contrast, the Government contends the Supreme Court did
not find a fundamental right to engage in homosexual sodomy by
overruling Bowers because the Supreme Court applied the rational
basis standard of review in Lawrence.

Rather, by applying a

rational basis standard of review to reach their determination

that the Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private
life of the individual, the Supreme Court reaffirmed that the
right to engage in homosexual sodomy is not a fundamental
right.
Although particular sentences within the Supreme Courts
opinion may be culled in support of the Governments argument,
other sentences may be extracted to support Appellants
argument.

On the one hand, the opinion incorporates some of the

legal nomenclature typically associated with the rational basis

standard of review.

For example, as the Government notes, the

Supreme Court declared [t]he Texas statute furthers no

legitimate state interest[.]

See Lawrence, 539 U.S. at 578.

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United States v. Marcum, No. 02-0944/AF

This is the counter-weight applied in the rational basis
analysis.

Moreover, the Supreme Court did not apply the

nomenclature associated with strict scrutiny, i.e.,

identification of a compelling state interest and narrow
tailoring of the statute to accomplish that interest.
On the other hand, the Supreme Court placed Lawrence within
its liberty line of cases resting on the Griswold foundation.
See id. at 564-65.

These cases treated aspects of liberty and

privacy as fundamental rights, thereby, subjecting them to the

compelling interest analysis.
Carey, 431 U.S. at 686.

See Griswold, 381 U.S. at 485;

With regard to the Supreme Courts use

of language attributed to the rational basis review, Appellant

and the amici argue the Supreme Court is simply stating that the
Texas statute does not even accomplish a legitimate interest,
let alone a compelling one.
Indeed, in response to the Supreme Courts decision in
Lawrence, some courts have applied the rational basis standard
of review while other courts have applied strict scrutiny.

For

example, the Court of Appeals of Arizona determined that the

Court applied without explanation the rational basis test,
rather than the strict scrutiny review utilized when fundamental
rights are impinged, to hold the Texas statute
unconstitutional.

Standhardt v. Superior Court of Arizona, 77

P.3d 451, 457 (Ariz. Ct. App. 2003).

16

Whereas the court in

United States v. Marcum, No. 02-0944/AF

Fields v. Palmdale School District, 271 F. Supp. 2d 1217, 1221
n. 7 (C.D. Cal. 2003), concluded, Many of these fundamental
rights, especially those relating to marital activities and
family relationships, have been classified by the Supreme Court
under a broader right to privacy that is implicit in the
Fourteenth Amendment[.].
The focus by the Government and Appellant on the nature of
the Supreme Courts constitutional test in Lawrence is
understandable.

Utilization of either the rational basis test

or strict scrutiny might well prove dispositive of a facial

challenge to Article 125.

On the one hand, the interests in

military readiness, combat effectiveness, or national security

arguably would qualify as either rational or compelling
governmental interests.

On the other hand, it is less certain

that Article 125 is narrowly tailored to accomplish these

interests.
The Supreme Court did not expressly state which test it
used.

The Court did place the liberty interest in Lawrence

within the Griswold line of cases.

564-65.

See Lawrence, 539 U.S. at

Griswold and Carey address fundamental rights.

However, the Supreme Court has not determined that all liberty
or privacy interests are fundamental rights.

In Lawrence, the

Court did not expressly identify the liberty interest as a

fundamental right.

Therefore, we will not presume the existence

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United States v. Marcum, No. 02-0944/AF

of such a fundamental right in the military environment when the
Supreme Court declined in the civilian context to expressly
identify such a fundamental right.
What Lawrence requires is searching constitutional inquiry.
This inquiry may require a court to go beyond a determination as
to whether the activity at issue falls within column A conduct
of a nature to bring it within the liberty interest identified
in Lawrence, or within column B factors identified by the
Supreme Court as outside its Lawrence analysis.

The Courts

analysis reached beyond the immediate facts of the case

presented.

This is reflected by the Courts decision to rule on

the grounds of due process as opposed to equal protection.

Were we to hold the statute invalid under the Equal Protection
Clause, the Supreme Court noted, some might question whether a
prohibition would be valid if drawn differently, say, to
prohibit the conduct both between same-sex and different-sex
participants.

539 U.S. at 575.

The Supreme Court also

acknowledged an emerging awareness that liberty gives

substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex.

Id.

at 572.
At the same time the Court identified factors, which it did
not delimit, that might place conduct outside the Lawrence zone
of liberty.

Thus, the door is held open for lower courts to

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United States v. Marcum, No. 02-0944/AF

address the scope and nature of the right identified in
Lawrence, as well as its limitations, based on contexts and
factors the Supreme Court may not have anticipated or chose not
to address in Lawrence.

In our view, this framework argues for

contextual, as applied analysis, rather than facial review.

This is particularly apparent in the military context.
(2)

Lawrence in the Military Context

The Supreme Court and this Court have long recognized that
[m]en and women in the Armed Forces do not leave constitutional
safeguards and judicial protection behind when they enter
military service.

United States v. Mitchell, 39 M.J. 131, 135

(C.M.A. 1994)(quoting Weiss v. United States, 510 U.S. 163, 194

(1994)(Ginsburg, J., concurring)). Our citizens in uniform may
not be stripped of basic rights simply because they have doffed
their civilian clothes.

Goldman v. Weinberger, 475 U.S. 503,

507 (1986)(citations omitted).

As a result, this Court has

consistently applied the Bill of Rights to members of the Armed

Forces, except in cases where the express terms of the
Constitution make such application inapposite.

See United

States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47

(1960)([I]t is apparent that the protections in the Bill of
Rights, except those which are expressly or by necessary
implication inapplicable, are available to members of our armed
forces.).

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United States v. Marcum, No. 02-0944/AF

At the same time, these constitutional rights may apply
differently to members of the armed forces than they do to
civilians.

See Parker, 417 U.S. at 743.

necessity, a specialized society.

Id.

The military is, by

Thus, when considering

how the First Amendment and Fourth Amendment apply in the

military context, this Court has relied on Supreme Court
civilian precedent, but has also specifically addressed
contextual factors involving military life.

See United States

v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)([T]he

right of free speech in the armed services is not unlimited and
must be brought into balance with the paramount consideration of
providing an effective fighting force for the defense of our
Country.); see also United States v. McCarthy, 38 M.J. 398
(C.M.A. 1993)(warrantless entry into military barracks room to
effectuate apprehension did not violate Fourth Amendment).

In

light of the military mission, it is clear that servicemembers,

as a general matter, do not share the same autonomy as
civilians.

See Parker, 417 U.S. at 758.

While the Government does not contest the general

proposition that the Constitution applies to members of the
Armed Forces, it argues that Lawrence only applies to civilian
conduct.

Moreover, with respect to the military, the Government

contends that Congress definitively addressed homosexual sodomy

by enacting 10 U.S.C. 654 (2000).

20

According to the

United States v. Marcum, No. 02-0944/AF

Government, pursuant to Congresss Article I authority to make
rules and regulations for the Armed Forces, Congress not only
prohibited sodomy through Article 125, but with Article 125 as a
backdrop, determined in 1993 through 10 U.S.C. 654 that
homosexuality, and, therefore, sodomy was incompatible with
military service.

In enacting 654, Congress determined that

[t]he presence in the armed forces of persons who demonstrate a

propensity or intent to engage in homosexual acts would create
an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion that are the essence of
military capability.

10 U.S.C. 654(a)(15).

Thus, according

to the Government, this Court should apply traditional

principles of deference to Congresss exercise of its Article I
authority and not apply Lawrence to the military.
The military landscape, however, is less certain than the
Government suggests.

The fog of constitutional law settles on

separate and shared powers where neither Congress nor the

Supreme Court has spoken authoritatively.

Congress has indeed

exercised its Article I authority to address homosexual sodomy

in the Armed Forces, but this occurred prior to the Supreme
Courts constitutional decision and analysis in Lawrence and at
a time when Bowers served as the operative constitutional
backdrop.

Moreover, the Supreme Court did not accept the

Governments present characterization of the right as one of

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United States v. Marcum, No. 02-0944/AF

homosexual sodomy.

The Court stated, To say that the issue in

Bowers was simply the right to engage in certain sexual conduct

demeans the claim the individual put forward[.]
U.S. at 567.

Lawrence, 539

The State cannot demean their existence or

control their destiny by making their private sexual conduct a

crime.

Id. at 578.

Nor did the Supreme Court define the

liberty interest in Lawrence in a manner that on its face would

preclude its application to military members.
Constitutional rights identified by the Supreme Court
generally apply to members of the military unless by text or
scope they are plainly inapplicable.

Therefore, we consider the

application of Lawrence to Appellants conduct.

However, we

conclude that its application must be addressed in context and

not through a facial challenge to Article 125.

This view is

consistent with the principle that facial challenges to criminal

statutes are best when infrequent and are especially to be
discouraged.

Sabri v. United States, ___ U.S. __, __, 124 S.

Ct. 1941, 1948 (2004).

In the military setting, as this case

demonstrates, an understanding of military culture and mission

cautions against sweeping constitutional pronouncements that may
not account for the nuance of military life.

This conclusion is

also supported by this Courts general practice of addressing

constitutional questions on an as applied basis where national
security and constitutional rights are both paramount interests.

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United States v. Marcum, No. 02-0944/AF

Further, because Article 125 addresses both forcible and nonforcible sodomy, a facial challenge reaches too far.

Clearly,

the Lawrence analysis is not at issue with respect to forcible

sodomy.
Thus, this case presents itself to us as a challenge to a
discrete criminal conviction based on a discrete set of facts.
The question this Court must ask is whether Article 125 is
constitutional as applied to Appellants conduct.

This as-

applied analysis requires consideration of three questions.

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?

539 U.S. at 578.

Third, are there additional factors relevant solely in the

military environment that affect the nature and reach of the
Lawrence liberty interest?
D.

Is Article 125 Constitutional as Applied to Appellant?

Appellant was charged with dereliction of duty, three

specifications of forcible sodomy, three specifications of

indecent assault, and two specifications of committing an
indecent act.

With regard to the charge addressed on appeal,

the members found Appellant not guilty of forcible sodomy, but

guilty of non-forcible sodomy.

As part of Appellants

23

United States v. Marcum, No. 02-0944/AF

contested trial, the following additional facts surrounding his
conduct were elicited:

The act of sodomy occurred in

Appellants off-base apartment during off-duty hours; no other

members of the military were present at the time of the conduct;
Appellant was an E-6 and the supervising noncommissioned officer
in his flight.
airmen.

His duties included training and supervising

SrA H, an E-4, was one of the airmen Appellant

supervised.

As a result, SrA H was subordinate to, and

directly within, Appellants chain of command.

The first question we ask is whether Appellants conduct
was of a nature to bring it within the Lawrence liberty
interest.

Namely, did Appellants conduct involve private,

consensual sexual activity between adults?

In the present case,

the members determined Appellant engaged in non-forcible sodomy.

This sodomy occurred off-base in Appellants apartment and it
occurred in private.

We will assume without deciding that the

jury verdict of non-forcible sodomy in this case satisfies the

first question of our as applied analysis.
The second question we ask is whether Appellants conduct
nonetheless encompassed any of the behavior or factors that were
identified by the Supreme Court as not involved in Lawrence.
For instance, did the conduct involve minors?
public conduct or prostitution?

Did it involve

Did it involve persons who

24

United States v. Marcum, No. 02-0944/AF

might be injured or coerced or who are situated in relationships
where consent might not easily be refused?

See id.

When evaluating whether Appellants conduct involved

persons who might be injured or coerced or who were situated in
relationships where consent might not easily be refused, the
nuance of military life is significant.

An Air Force

instruction applicable to Appellant at the time of the offenses

included the following proscriptions.
Unduly familiar relationships between members in which one
member exercises supervisory or command authority over the
other can easily be or become unprofessional. Similarly,
as differences in grade increase, even in the absence of a
command or supervisory relationship, there may be more risk
that the relationship will be, or be perceived to be
unprofessional because senior members in military
organizations normally exercise authority or some direct or
indirect organizational influence over more junior members.
Relationships are unprofessional, whether pursued on or
off-duty, when they detract from the authority of superiors
or result in, or reasonably create the appearance of,
favoritism, misuse of office or position, or the
abandonment of organizational goals for personal interests.
Dept. of the Air Force Instruction, 36-2909 Professional and
Unprofessional Relationships, paras. 2.2, 3.1 (May 1, 1996).
For these reasons, the military has consistently regulated
relationships between servicemembers based on certain
differences in grade in an effort to avoid partiality,
preferential treatment, and the improper use of ones rank.

See

United States v. McCreight, 43 M.J. 483, 485 (C.A.A.F. 1996).

25

United States v. Marcum, No. 02-0944/AF

Indeed, Dept of the Air Force Instruction 36-2909 is subject to
criminal sanction through operation of Article 92, UCMJ.

As

both the Supreme Court and this Court have recognized elsewhere,
The fundamental necessity for obedience and the consequent
necessity for imposition of discipline, may render permissible
within the military that which would be constitutionally
impermissible outside it.

Parker, 417 U.S. at 758.

While

servicemembers clearly retain a liberty interest to engage in

certain intimate sexual conduct, this right must be tempered in
a military setting based on the mission of the military, the
need for obedience of orders, and civilian supremacy.

United

States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996).

In light of Air Force Instructions at the time, Appellant
might have been charged with a violation of Article 92 for
failure to follow a lawful order.
to proceed under Article 125.

However, the Government chose

Nonetheless, the fact that

Appellants conduct might have violated Article 92 informs our

analysis as to whether Appellants conduct fell within the
Lawrence zone of liberty.
As the supervising noncommissioned officer, Appellant was
in a position of responsibility and command within his unit with
respect to his fellow airmen.
H.

He supervised and rated SrA

Appellant also testified that he knew he should not

engage in a sexual relationship with someone he supervised.

26

United States v. Marcum, No. 02-0944/AF

Under such circumstances, which Appellant acknowledged was
prohibited by Air Force policy, SrA H, a subordinate
airman within Appellants chain of command, was a person who
might be coerced or who was situated in [a] relationship[]
where consent might not easily be refused.
at 578.

Lawrence, 539 U.S.

Thus, based on this factor, Appellants conduct fell

outside the liberty interest identified by the Supreme Court.

As a result, we need not consider the third step in our Lawrence
analysis.

Nor, given our determination that Appellants conduct

fell outside the liberty interest identified in Lawrence, need

we decide what impact, if any, 10 U.S.C. 654 would have on the
constitutionality of Article 125 as applied in other settings.
Appellants conduct was outside the protected liberty
interest recognized in Lawrence; it also was contrary to Article
125.

As a result, Article 125 is constitutional as applied to

Appellant.
II. Issue I:

Sentencing Statement
Facts

After the court members announced their findings, the

court-martial recessed for the evening.
absent without leave (AWOL).

Appellant then went

After numerous recesses, the

court-martial reconvened and proceeded without Appellant.

Rule for Courts-Martial 804(b)(1) [hereinafter R.C.M.].

See

Trial

defense counsel objected to proceeding without Appellant, but

27

United States v. Marcum, No. 02-0944/AF

ultimately made a sentencing argument to members that included,
as a sentencing exhibit, an unsworn statement from Appellant.
The unsworn statement was a compilation of word processed
notes that Appellant had prepared for his defense counsel prior
to trial.

Appellant submitted an affidavit stating, I have

examined this document and believe it is covered by the

attorney-client privilege, which I hereby invoke.

At no time

did I authorize my defense counsel to release it to anyone, in

court or out of court.
exclusively.

It was prepared for their eyes

They never asked me for permission to release it

or permission to offer it as an unsworn statement in court.

Marcum, No. ACM 34216, slip op at 4.
This twenty-page single spaced document was divided into
six sections.

Each section referenced a different male airman

with whom Appellant was alleged to have had sexual contact.

The

document described for his lawyer the nature of his professional

and off-duty relationship with each airman, including details
regarding Appellants level of attraction for each individual
airman as well as graphic descriptions of the charged and
uncharged sexual contact between Appellant and each airman.
The introduction of this statement caused the military
judge to ask defense counsel, I just want to make sure that
thats the means by which you would like to present that to the
court members and youre not interested in providing that in any

28

United States v. Marcum, No. 02-0944/AF

other fashion.
responded:

Is that correct?

Civilian defense counsel

Thats correct, Your Honor.

It is rather lengthy

and I believe the impact of the contents of this statement, when

each member of the court is provided a copy of this and they can
read it individually, I think that it will carry the impact that
it was intended to take.

In subsequent argument, civilian

defense counsel made no reference to the unsworn statement,

whereas trial counsel referred to the statement when arguing
about Appellants lack of contrition.
Appellant maintains that because he was absent from the
proceedings he did not have the opportunity to assert his
attorney-client privilege prior to defense counsel offering the
written summary as an unsworn statement.

Appellant also argues

that even if the unsworn statement was intended to benefit him,

defense counsel had no basis to unilaterally waive the attorneyclient privilege.

Therefore, Appellant contends that M.R.E. 502

and 511 were violated because he never waived the attorneyclient privilege nor authorized his defense counsel to utilize
the written summary.
The Government asserts that Appellant was not denied the
opportunity to assert his attorney-client privilege because
Appellant waived this opportunity by going absent without leave.
As a result, the Government contends that defense counsel was
implicitly authorized to disclose the written summary.

29

The

United States v. Marcum, No. 02-0944/AF

Government also suggests that Appellants unsworn statement does
not fall under the exclusionary rule set forth in M.R.E. 511(a)
because defense counsel introduced the statement on Appellants
behalf.

Finally, the Government argues Appellant waived any

privilege that might have existed with regard to the written

summary when he testified to its contents during the defenses
case.
Discussion
Whether Appellant suffered prejudicial error when his trial
defense counsel revealed a privileged communication during the
sentencing phase of trial is a mixed question of law and fact
reviewed de novo.

United States v. Ankeny, 30 M.J. 10, 10

(C.M.A. 1990).
Evidence of a statement or other disclosure of privileged
matter is not admissible against the holder of the privilege if
disclosure was compelled erroneously or was made without an
opportunity for the holder of the privilege to claim the
privilege.

M.R.E. 511(a).

[E]vidence of such a communication

should not be received unless it appears that the privilege has

been waived by the person or government entitled to the benefit
of it or that the evidence comes from a person or source not
bound by the privilege.

Ankeny, 30 M.J. at 19 (quoting Manual

for Courts-Martial, United States, 1969, para. 151a (Rev. ed.)).

A lawyer shall not reveal information relating to the

30

United States v. Marcum, No. 02-0944/AF

representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to
carry out the representation, or the disclosure [is otherwise
permitted by this rule.]

United States v. Dorman, 58 M.J. 295,

298 (C.A.A.F. 2003)(quoting Model Rules of Profl Conduct R.

1.6(a) (2003)(emphasis added)).
Military law is clear that the decision to make an unsworn
statement is personal to the accused.

During the sentencing

proceedings, an accused may testify, make an unsworn statement,

or both in extenuation, in mitigation or to rebut matters
presented by the prosecution[.]

R.C.M. 1001(c)(2)(A).

If an

accused chooses to make an unsworn statement, he may not be

cross-examined by the trial counsel upon it or examined upon it
by the court-martial. . . .

The unsworn statement may be oral,

written, or both, and may be made by the accused, by counsel, or

both.

R.C.M. 1001(c)(2)(C).

This right of allocution by a

military member convicted of a criminal offense is a fundamental

precept of military justice.

United States v. Provost, 32 M.J.

98, 99 (C.M.A. 1991).

Because an accuseds right to make an unsworn statement
is a valuable right . . . [that has] long been recognized by
military custom and that has been generally considered
unrestricted,

United States v. Grill, 48 M.J. 131, 132

(C.A.A.F. 1998)(citing United States v. Rosato, 32 M.J. 93, 96

31

United States v. Marcum, No. 02-0944/AF

(C.M.A. 1991)), this Court will not allow it to be undercut or
eroded, United States v. Partyka, 30 M.J. 242, 246 (C.M.A.
1990).

As this Court has previously indicated, an accused

elects to make an unsworn statement.

Rosato, 32 M.J at 99.

Thus, regardless of whether the unsworn statement is made by the

accused or presented for the accused by his counsel, the right
to make the unsworn statement is personal to the accused.
Therefore, if an accused is absent without leave his right
to make an unsworn statement is forfeited unless prior to his
absence he authorized his counsel to make a specific statement
on his behalf.

Although defense counsel may refer to evidence

presented at trial during his sentencing argument, he may not

offer an unsworn statement containing material subject to the
attorney-client privilege without waiver of the privilege by his
client.
Even though Appellant waived his right to be present during
sentencing by being voluntarily absent, he did not waive his
attorney-client privilege.

Appellants affidavit demonstrates

that defense counsel never asked Appellant for permission to use

the written summary.

Thus, by submitting Appellants written

summary as an unsworn statement, defense counsel revealed

material subject to the attorney-client privilege without
receiving an appropriate waiver of this privilege from
Appellant.

32

United States v. Marcum, No. 02-0944/AF

The harder question in this case, however, is whether
Appellant waived his right to confidentiality through his trial
testimony.

If Appellant did not waive his right to

confidentiality, this Court must decide whether Appellant was

prejudiced by the use of the statement even though Appellant
testified to a great deal of the information contained within
the statement.

A finding or sentence of court-martial may not

be held incorrect on the ground of an error of law unless the

error materially prejudices the substantial rights of an
accused.

Article 59(a), UCMJ, 10 U.S.C. 859(a) (2000).

Appellant contends the admission of his written summary

prejudiced him during sentencing because it inflamed the members
and resulted in a more severe sentence than he might have
otherwise received.

Moreover, Appellant suggests that if he had

prepared an unsworn statement for sentencing it would have been

different than what was ultimately presented by his defense
counsel.
We believe Appellant has carried his burden on both counts.
Throughout the written summary, Appellant graphically described
the circumstances surrounding his relationships with the victims
and denied responsibility for his actions.

Within his

description, Appellant provided numerous sexually explicit

details not contained in his trial testimony, as well as,
comments critical of the victims.

33

Although Appellants trial

United States v. Marcum, No. 02-0944/AF

testimony was graphic, the tone and substance of the sentencing
statement was more explicit.
Moreover, trial counsel repeatedly referred to Appellants
unsworn statement during his sentencing argument.
argued, They are the victims.

Trial counsel

And when you read Sergeant

Marcums statement remember that.

And when you see - when you

read how he attacks the people that came forward to tell what he
did, you remember and ask yourself, who is the professional in
this case?

Sergeant Marcum victimizes those airmen once and

then through the testimony and through the statement that you
have, he is victimizing those airmen again.

Pay special

attention to his comments concerning Airman [M].

Further,

trial counsel reminded the members, As you will read in

Sergeant Marcums statement, he cant even admit to what he has
done.

Defense counsel did not refer to the statement at all

during his sentencing argument.

Under these circumstances, we find that Appellant did not
waive his right to confidentiality through his trial testimony.
Further, Appellant was prejudiced when his trial defense counsel
revealed privileged communications during sentencing without
Appellants permission.

34

United States v. Marcum, No. 02-0944/AF

Issue II:

Life Without Parole

Appellants sentencing occurred on May 24, 2000.

The

military judge instructed the members that life without parole

was the maximum authorized punishment for Appellants offenses.
Appellant was subsequently convicted of various offenses,
including non-forcible sodomy, for which the maximum authorized
confinement was five years.

Appellants approved sentence

included, inter alia, a term of confinement for six years.

In

light of our decision on Issue I, we need not decide whether

life without parole was an authorized punishment for forcible
sodomy at the time of Appellants offenses.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings, but
reversed with respect to the sentence.
aside.

The sentence is set

The record of trial is returned to the Judge Advocate

General of the Air Force.

A rehearing on sentence is

authorized.

35

United States v. Marcum, No. 02-0944/AF

CRAWFORD, Chief Judge (dissenting on Issue I and concurring
in result on Issue III):
I.

Defense Counsels Release of Appellants Unsworn Written

Statement
I disagree with the majoritys conclusion that defense

counsel erred in releasing Appellants written statement.

First, defense counsels declaration of intent to submit the
exhibit as Appellants unsworn statement establishes that the
statement was not privileged in the first place.

Moreover, even

assuming the statement was privileged, it is clear from the

record that Appellant himself waived the privilege, as well as
impliedly authorized defense counsel to waive the privilege and
release the statement on Appellants behalf.

For these reasons,

I respectfully dissent from the majoritys resolution of Issue

I.
A. Attorney-Client Privilege and Appellants Statement
It is well-established that [a] client has a privilege to refuse
to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client

United States v. Marcum, No. 02-0944/AF

. . . .1

Moreover, [e]vidence of a statement or other

disclosure of privileged matter is not admissible against the

holder of the privilege if disclosure was compelled erroneously or
was made without an opportunity for the holder of the privilege to
claim the privilege.2

The privilege is intended to encourage

full and frank communication between attorneys and their clients

and thereby promote broader public interests in the observance of
law and the administration of justice.3
Nevertheless, it is equally well-established that material
is not privileged if it is intended to be disclosed to a third
party.4

In United States v. Grill,5 this Court championed the

accuseds right to make an unsworn statement pursuant to the

Rules for Courts-Martial 1001(c)(2)(C)[hereinafter R.C.M.].

In

keeping with Grill, the United States Air Force promulgated Air
Force Rule 3.1(D) on May 1, 2000, requiring that the defense
give the Government at least three days notice of intent to
submit an unsworn statement.

Although this rule has since been

Military Rule of Evidence 502(a) [hereinafter M.R.E.].

M.R.E. 511(a).

Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)
(quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
4

See, e.g., Cavallaro v. United States, 284 F.3d 230, 246-47

(1st Cir. 2002)(Generally, disclosing attorney-client
communications to a third party undermines the privilege.).
5

48 M.J. 131 (C.A.A.F. 1998).

2

United States v. Marcum, No. 02-0944/AF

repealed, it was in effect at the time of Appellants courtmartial, and, accordingly, defense counsel in this case
presumably gave the Government the required notice of his intent
to submit an unsworn statement on Appellants behalf.

In making

this required disclosure, defense counsel displayed his and

Appellants intent to disclose the statement to a third party
and, in so doing, established that the statement was not
privileged.
This conclusion is further supported by Appellants own
expression of intent as to defense counsels use of the
statement.

Before Appellant went absent without leave (AWOL),

defense counsel extensively used Appellants statement at trial

to cross-examine Government witnesses.

Appellant voiced no

objection to defense counsels use of the statement in this

manner, and we may therefore reasonably assume that Appellant
gave the statement to defense counsel with the full knowledge
and intent that the statement would, in a manner left to defense
counsels discretion, be released at trial.

Having done so in

the first place, Appellant cannot now claim that attorney-client

privilege should have prevented the statements release.

United States v. Marcum, No. 02-0944/AF

B.

Appellants Waiver of the Statements Privilege

Even assuming the statement was privileged, it is well

established that an accused may waive the attorney-client
privilege.

If an accused testif[ies] voluntarily concerning a

privileged matter or communication . . . [the accused] waive[s]

a privilege to which he or she may be entitled pertaining to the
confidential matter or communication.6

Accordingly, I would

hold that when Appellant voluntarily testifies about a

significant part of the matters contained in the released
statement, he waived any future challenge to the statements
release on the grounds that defense counsel violated the
attorney-client privilege.7

In this vein, as noted above, the

record is clear that defense counsel further used the

statements content in his cross-examination of Government
witnesses.

Appellant was present at these points in the trial,

yet voiced no objections to defense counsels use of the

privileged statement.
Even assuming Appellant did not himself waive the attorneyclient privilege, [e]xcept to the extent that the clients
6

M.R.E. 510(b). See also United States v. Smith, 33 M.J. 114,

118 (C.M.A. 1991)(observing that an accused who testifies about
matters discussed in a privileged communication, rather than
disclosing an actual portion of the privileged communication,
waives the privilege).

United States v. Marcum, No. 02-0944/AF

instructions or special circumstances limit that authority, a
lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation.8
The facts of the instant case present exactly one such
circumstance.

As the lower court aptly noted in its unpublished

opinion, [A]fter he went AWOL, the appellant left his trial

counsel with the unquestionably difficult position of having to
decide what, if anything, to offer as an unsworn statement
during the sentencing party of the appellants court-martial.9
Facing this circumstance, trial defense counsel certainly had
the implied authority to submit on Appellants behalf otherwise
privileged matters in an effort to defend Appellant as
successfully as possible.

Additionally, Appellant, by his own

United States v. Marcum, No. ACM 34216, slip op. at 5 (A.F. Ct.
Crim. App. 2002)(presenting a finding of fact in accordance with
Article 66(c)).
8

ABA Model Rules of Profl Conduct Rule 1.6 cmt 5 (2004

ed.)(mirrored by Air Force Rule of Profl Conduct 1.6); see also
United States v. Province, 45 M.J. 359, 362 (C.A.A.F.
1996)(holding that counsels disclosure of information
relinquished to him by the client was impliedly authorized by
the client); Stephen A. Salzburg et al., Federal Rules of
Evidence Manual 501.02[5][k][ii] (8th ed. 2002); John Henry
Wigmore, Evidence in Trials at Common Law 2326 at 633
(McNaughton ed. 1961). This implied authority is consistent
with counsels duty to act at all times in a clients best
interest. See United States v. Godshalk, 44 M.J. 487, 492
(C.A.A.F. 1996)(noting that some disclosures by an attorney do
not breach the attorney-client privilege if the attorney is
acting in the clients best interest).
9

Marcum, No. ACM 34216, slip op. at 6.

5

United States v. Marcum, No. 02-0944/AF

misconduct, forfeited any right to object to counsels use of
the statement.
II.

Appellants Conviction of Non-Forcible Sodomy in Light of

Lawrence v. Texas
As to Issue III, I agree with the majoritys conclusion

that Appellants conviction should not be reversed under

Lawrence v. Texas.10

But I disagree with the majoritys

assumption that Appellants conduct falls within the protected

liberty interest enunciated in Lawrence.

There are factual

distinctions between the petitioners offense in Lawrence and

Appellants offense in the case at bar.

Because of these

significant differences, I would hold that this is not a

Lawrence case and would reserve for another day the questions of
whether and how Lawrence applies to the military.

The factual

differences between Lawrence and Appellants case are striking.

The offense of sodomy with which the petitioners in Lawrence
were charged occurred in the context of a consensual, adult
relationship.

The Court noted at the outset of its opinion that

at the time of their arrest, the petitioners in Lawrence were in

Mr. Lawrences apartment, engaging in a private, consensual
sexual act.11

The Court reiterated this factual context shortly

thereafter: The petitioners were adults at the time of the

10

539 U.S. 558.

United States v. Marcum, No. 02-0944/AF

alleged offense.

Their conduct was in private and consensual.12

At the conclusion of its opinion, the Court once again

emphasized the specific factual context of the petitioners
acts:
The present case does not involve minors. It does not
involve persons who might be injured or coerced or who
are situated in relationships where consent might not
easily be refused. It does not involve public conduct
or prostitution. It does not involve whether the
government must give formal recognition to any
relationship that homosexual persons seek to enter.
The case does involve two adults who, with full and
mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle.13
Indeed, the nature of the petitioners relationship as described
by the Court was central to the Courts conclusion that the
State may not curtail the petitioners intimate and personal
choices [which are] central to [their] personal dignity and
autonomy.14
The facts surrounding Appellants offense are strikingly
different.

Appellant, a noncommissioned officer, was convicted,

in pertinent part, of non-forcible sodomy with Senior Airman

H, whom Appellant supervised in his work unit.

Appellant

was not involved in a romantic relationship with Senior Airman

11

Id. at 564.

12

Id.

13

Id. at 578.

United States v. Marcum, No. 02-0944/AF

H, as were the petitioners in Lawrence

On the contrary,

Appellants offense occurred after a night of drinking when

Senior Airman H crashed on Appellants couch, wearing
only boxer shorts and a T-shirt, and awoke to find Appellant
performing oral sex on him.

Senior Airman H testified

that he did not protest Appellants action for fear of how

Appellant would respond.

This event followed two other

incidents of sexual contact between Appellant and Senior Airman

H, which involved touching and dancing, on evenings when
Appellant and Senior Airman H had been out drinking and
socializing.
Clearly, Appellants offense occurred in the context of a
casual relationship with a subordinate airman who testified that
he was too frightened to protest.

This is a far cry from the

consensual adult relationship, born of intimate and personal

choice, which characterized the petitioners behavior in
Lawrence.

Indeed, Appellants offense concerned precisely what

the Supreme Court stated Lawrence did not concern: an

individual, Senior Airman H, who might have been coerced,
in a situation where consent might not easily have been refused,
given Senior Airman Hs subordinate professional
position.

Senior Airman H himself expressed his fear of

14

Id. at 574 (quoting Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. at 833, 851 (1992)).
8

United States v. Marcum, No. 02-0944/AF

rejecting a superior, noncommissioned officer, who was in fact
his supervisor at work.

This case certainly did not involve

two adults [who acted] with full and mutual consent from each
other.

In sum, the act for which Appellant was convicted in

specification 1 of Charge II was not the kind of mutual and

intimate act in the context of which the Supreme Court decided
Lawrence.
An enumerated punitive Article within the UCMJ, Article 125
provides:
(a) Any person subject to this chapter who engages in
unnatural carnal copulation with another person of the
same or opposite sex or with an animal is guilty of
sodomy. Penetration, however slight, is sufficient to
complete the offense.
(b) Any person found guilty of sodomy shall be
punished as a court-martial may direct.15
Article 36 authorizes the President to prescribe modes of
proof[] for cases arising under the punitive Articles which
shall . . . apply the principles of law and the rules of
evidence[.]16

Thus, although Article 125 outlines the general

parameters of the sodomy offense in the military, the charge and

findings in each case describe the specific manner in which
Article 125 was violated, pursuant to Article 36.

Certainly,

the modes of proof described in the charge and findings of an

15

Article 125, UCMJ, 10 U.S.C. 925 (2000).

16

Article 36, UCMJ, 10 U.S.C. 836 (2000).

9

United States v. Marcum, No. 02-0944/AF

Article 125 case may differ substantially from case to case.
For this reason, I will consider Article 125 only to the extent
it proscribes the conduct for which Appellant was charged and
convicted, as described in the charge and findings under
specification 1 of Charge II.17
Unlike the petitioners in Lawrence, who were both charged
with, and convicted of, consensual sodomy without any evidence
of force, Appellant was charged with three specifications of
sodomy by force and without consent under Article 125 (Charge
II).

These charges were based on probable cause that Appellant

committed the general offense described in Article 125 with the

added element of force.18

Congress has dictated that even if an

accused is found not guilty of the offense as charged, the

accused may, in the alternative, be found guilty of an offense
necessarily included in the offense charged[.]19

Accordingly,

the military judge instructed the members on the lesser included

offenses available for each of the three specifications under
the forcible sodomy charge, including non-forcible sodomy,
17

See Parker v. Levy, 417 U.S. 733, 760 (1974)(noting the

Courts repeated reluctance to strike down a statute in its
entirety when there are a number of situations to which it might
otherwise be constitutionally applied).

18

See R.C.M. 307(b)(2) (outlining the prerequisites for bringing

the charges against an accused); United States v. Miller, 33
M.J. 235, 237 (C.M.A. 1991)(finding that R.C.M. 307(b)(2)
implicitly requires probable cause to support charges against an
accused).

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United States v. Marcum, No. 02-0944/AF

attempted forcible sodomy, assault with the intent to commit
sodomy, indecent assault, and assault consummated by a battery.
The members ultimately convicted Appellant of non-forcible
sodomy (specification 1), forcible sodomy as charged
(specification 2), and assault consummated by a battery
(specification 3).
In reference to specification 1, which Appellant challenges
on appeal, the judge instructed the members on the lesserincluded offense of non-forcible sodomy specifically as follows:
The offense charged, forcible sodomy, and the lesser
included offense of non-forcible sodomy differ
primarily in that the offense charged requires, as an
essential element, that you be convinced beyond a
reasonable doubt that the act of sodomy was done by
force and without consent of Senior Airman H,
whereas, the lesser included offense does not include
such an element.
(Emphasis added.)

As noted above, the members found Appellant

guilty of this lesser-included offense, instead of the

specification as charged.

Appellant now argues that this

conviction of non-forcible sodomy was essentially a conviction

of consensual sodomy.

On the contrary, I would conclude that

although the finding of non-forcible sodomy was not a conviction

of the charged offense of forcible sodomy, neither did it
establish consent.

Unlike Lawrence, in which there was no

evidence of force whatsoever, the finding in this case simply

19

Article 79, UCMJ, 10 U.S.C. 879 (2000).

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United States v. Marcum, No. 02-0944/AF

showed that the members were not convinced beyond a reasonable
doubt that the act of sodomy was done by force and without
consent in other words, that the evidence of force was simply
insufficient.20

This finding did not negate the probable cause

of force that supported Appellants charge, nor did it establish

consent.

Indeed, Appellant did not, prior to trial, move to

dismiss or amend the forcible sodomy charge for lack of evidence

of force.
Given this factual context of Appellants charge, it is
obvious why this is not a Lawrence case.

The following diagram

demonstrates what this case is truly about.

On the far left is

the purely consensual case as in Lawrence; on the far right is a

case with a conviction for forcible sodomy beyond a reasonable
doubt.

This case falls in the middle because there was probable

cause to believe that Appellant had committed forceful sodomy.

R.C.M. 302(c).
Probable
Cause

Lawrence

Prove Force
beyond
reasonable
doubt

20

See Ex Parte Taylor, 101 S.W.3d 434, 447 n.3 (Tex. Crim. App.
2002) (Hervey, J., dissenting)(distinguishing a general verdict
of acquittal from a verdict of not guilty due to insufficient
evidence).
12

United States v. Marcum, No. 02-0944/AF

In short, one does not need to go beyond the facts of this
case and the language of the Lawrence opinion to conclude that
Appellants conduct did not fall within the liberty interest set
forth in Lawrence.

Certainly this case is factually

distinguishable from Lawrence because it does not involve two

adults, who with full and mutual consent from each other,
engaged in sexual practices common to a homosexual lifestyle.21
Further, Appellant was a senior noncommissioned officer who
supervised and rated the victim.

Thus, the victim was not in a

position where consent might . . . easily be refused.22

And

finally, to this date, the parties have not contested probable

cause to believe that Appellant committed forcible sodomy.
For these reasons, I concur in the result as to Issue III.

21

Id.

22

539 U.S. at 578.

13