Petition for Writ of Certiorari — Fagg v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Scott P. Fac,

Petitioner

V.

UNITED STATES OF.AMERICA,

° Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

DAVID D. JIVIDEN

Counsel of Record

Captain, United States Air Force

Appellate Defense Division

URSULA P. MOUL

Captain, United States Air Force

Appellate Defense Division

ALICE M. KOTTMYER

Major, United States Air Force

Acting Chief Appellate Defense Counsel

Air Force Legal Services Agency

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

June 1992 Counsel for Petitioner

eee

QUESTION PRESENTED

Whether the Court of Military Appeals erred in con-

cluding that Bowers v. Hardwick, 478 U.S. 186 (1986)

precluded judicial scrutiny and constitutional invalida-

tion of the proscription against sodomy found in Article

125(a), Uniform Code of Military Justice (UCMJ), as

applied to petitioner’s private, heterosexual, noncommer-

cial, consensual, adult oral sex.

(i)

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR GRANTING THE WRIT ............

I. THE COURT OF MILITARY APPEALS

Il.

Il.

ERRED IN RELYING ON BOWERS v. HARD-

WICK, 478 U.S. 186 (1986), AS THAT CASE

IS INAPPOSITE TO THE CONSTITUTIONAL

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THE PETITIONER’S CONDUCT WAS PRO-

TECTED BY THE DUE PROCESS CLAUSE

OF THE FIFTH AMENDMENT ............... slicstasads

THE PETITIONER’S PROSECUTION VIO-

LATED THE DUE PROCESS AND EQUAL

PROTECTION CLAUSES OF THE FIFTH

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nn Saergnecnceghenbaeinaisnens smb Giamnensbamntnnetnen

ia cuca aninnsn kos sAahanetsnniviecisieandictig psaciaanipics

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(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Supreme Court Cases:

Poard of Directors of Rotary Int'l v. Rotary Club

of Duarte, 481 U.S. 587 (1987) ..........0...000000000.... 8

Bouie v. Columbia, 378 U.S. 347 (1964) .........000... 10, 11

Bowers v. Hardwick, 478 U.S. 186 (1986) _......... 5, 6, 7,9

Carey v. Population Services, 431 U.S. 678 (1977)... 7,8

Eisenstadt v. Baird, 405 U.S. 438 (1972) ... _....7, 8, 10

Marks v. United States, 480 U.S. 188 (1975).......... 11

Roberts v. Jaycees, 468 U.S. 609 (1984) os 8

Rose v. Locke, 428 U.S. 48 (1978) ...........20002200-2 2... 11

Stanley v. Georgia, 394 U.S. 557 (1969) .......... one 7

United States v. Griswold, 381 U.S. 489 (1965)... 7

Court of Military Appeals Cases:

United States v. Fagg, 34 M.J. 179 (C.M.A. 1992) .. 4, 6, 8,

11

United States v. Harris, 8 M.J. 52 (C.M.A. 1979)... 13

United States v. Henderson, 34 M.J. 174 (C.M.A.

BI eas tc eee ee 4,6, 10, 11

United States v. Scoby, 5 M.J. 160 (C.M.A. 1978) .. 13

United States v. Snyder, 4 C.M.R. 15 (C.M.A.

aE Re cee! PREP ALR anette A ET A eet i aalaaiadenes 3

Courts of Military Review Cases:

United States v. Fagg, 33 M.J. 618 (A.F.C.M.R.

1991), rev’d, United States v. Fagg, 34 M.J. 179

UR, a asheamemalsenans Sante ..8, 4,9, 10

State Court Cases:

Franklin v. State, 257 So.2d 21 (Fla. 1971) ......... 12

Hinkle v. State, 771 P.2d 232 (Okla. Crim. App.

a gg 4, 8, 11

Post v. State, 715 P.2d 1105 (Okla. Crim. App.

1986), cert. denied, 479 U.S. 890 (1986) ...........4, 10, 11

Schochet v. State, 580 A.2d 176 (Md. 1990) 12

CONSTITUTIONAL PROVISIONS:

United States Constitution Amendment V ......2, 6, 10, 13

United States Constitution Amendment XIV .........2, 10, 13

Vv

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTORY PROVISIONS: Page

10 U.S.C.A. § 867(a) (Supp. 1992) .. nie 2

Uniform Code of Military Justice, 10 US.C.A.

§ 801 (1988) et seq.:

Article 120(b), 10 U.S.C. § 920(b) _...00-0ooo.... 2

Article 125(a), 10 U.S.C. 925 (a) ee SS

28 U.S.C.A. § 1259(3) (Supp. 1992) .........00..000000002.. 2

STATE STATUTORY PROVISIONS:

Ala. Code § 13A-6-65 (a) (3) (1982) .............. 12

Ariz. Rev. Stat. Ann. § 18-1411 ..........).000000000. 12

Ariz. Rev. Stat. Ann. § 13-1412 (1989) _.......000000.... 12

Ark. Code Ann. § 5-14-122 (Michie 1987) .............. 12

D.C. Code Amn. § 22-3508 (1968) ...................-........... 12

Fla. Stat. Ann. § 800.01 (West 1976) ............... an 12

Fla. Stat. Ann. § 800.02 (West 1976) 12

Ga. Code Ann. § 16-6-2 (Michie 1988) at 12

Idaho Code § 18-6605 (1987) ..........-...-0-...-. eae 12

Kan. Stat. Ann. § 21-3505 (1988) _......00000000000.... 12

Ky. Rev. Stat. Ann. § 510.100 (Michie, Bobbs-

|, SRE Pears. . Soca enaees . oa 12

La. Rev. Stat. Ann. § 14:89 (West 1986) _........00....... 12

Md. Ann. Code art. 27, § 553 (1992) -........000000000... 12

Md. Ann. Code art. 27, § 554 (1992) __........ sell ss 12

Mich. Comp. Laws Ann. § 750.158 (West 1991). 12

Minn. Stat. Ann. § 609.293 (West 1987) ................ 12

Miss. Code Ann. § 97-29-59 (1973) —.......... 12

Mo. Ann. Stat. § 566.090 (Vernon 1979) _. . 12

Mont. Code Ann. § 45-5-505 (1991)... ‘ . 12

Mont. Code Ann. § 45-2-101(20) (1991) _....... 12

Nev. Rev. Stat. Ann. § 201.190 (Michie 1986) 12

ee Me RB So. |} RARE on ene 12

Okla. Stat. Ann. tit. 21, § 886 (West 1983) 12

am BP Ee OS. |b ee 12

S.C. Code Ann. § 16-15-120 (Law. Co-op. 1985) 12

Tenn. Code Ann. § 39-18-510 (1991) _..........0-.02..... 12

Utah Code Ann. § 76-5-403 (1990) .............-222222202..2... 12

Va. Code Ann. § 18.2-361 (Michie 1988) tues 12

vi

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS: Page

Memorandum from Air Force Legal Services Cen-

ter, Military Justice Division, Personnel Accused

of Sodomy—Other Cases (June 6, 1992).............. 12,13

P. Blumstein and P. Schartz, American Couples

236 (1983)........ Uohsucacalaswelmiatiniae aaa 7

M. Hunt, Sexual Behavior in the Seventies 198-99

IIIT eich cis subcacAnicehaesaeieeadaaamaatn ena ee a aeaa eae 7

J. Reinisch, The Kinsey Institute New Report on

Oe Te. CRED goannas BEB AOS TSN CNY 7

i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No.

ScoTT P. FAGG,

Petitioner

ws

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Military Appeals

PETITION FOR WRIT OF CERTIORARI

The petitioner, Scott P. Fagg, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his

case on March 24, 1992.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals is reported at 34 M.J. 179 (C.M.A. 1992)

(Appendix A). The opinion of the United States Air

Force Court of Military Review, issued on 6 August

1991, is reported at 33 M.J. 618 (A.F.C.M.R.) (Ap-

pendix B).

2

JURISDICTION

The final order of the United States Court of Military

Review was entered on 14 April 1992. (Appendix C).

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1259(3) (Supp. 1992) and 10 U.S.C.A. § 867

(a) (Supp. 1992).

CONSTITUTIONAL AND RULE FOR

COURTS-MARTIAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the

United States provides in relevant part:

No person shall... be deprived of life, liberty, or

property, without due process of law....

The Fourteenth Amendment of the Constitution of the

United States provides in relevant part:

{N]or shall any state deprive any person of life,

liberty, or property, without due process of law... .

10 U.S.C. § 925(a), Art. 120(a), Uniform Code of

Military Justice provides:

Section 925. Art.125. Sodomy

(a) Any person subject to this chapter who en-

gages 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 te complete the offense.

(b) Any person found guilty of sodomy shall be

punished as a court-martial may direct.

STATEMENT OF THE CASE

On December 12, 1990 the petitioner, an eighteen-year

old Air Force airman (E-2), was tried by a general

court-martial composed of a military judge sitting alone

at Altus AFB, Oklahoma. He pled guilty to, and was

convicted of, carnal knowledge with a 14-year-old and

consensual sodomy with a 16-year-old, violations of Ar-

ticles 120(b) and 125(a) [10 U.S.C. §§920(b) and

3

925(a)] respectively... He was sentenced to a bad con-

duct discharge, confinement for seven months, and reduc-

tion to airman basic (E-1).

During the guilty plea inquiry at trial, the defense

and the prosecution entered into a stipulation of fact.

It was agreed, with regard to the Article 125(a) sodomy

charge, that the petitioner and his partner, April Colt-

man, engaged in mutual oral sex after Ms. Coltman

turned 16 and during the course of a serious dating reia-

tionship where they saw each other almost every day.

The trial court also received evidence that the petitioner

and Ms. Coltman had talked of marriage and children.

The Air Force Court of Military Review reversed the

petitioner’s sodomy conviction and reassessed the sen-

tence. The Court of Review held that there was a con-

stitutional zone of privacy for heterosexual, noncommer-

cial, private acts of oral sex between consenting adults in

the military when the acts were not outweighed by any

compelling governmental! interest. United States v. Fagg,

33 M.J. 618, 619 (A.F.C.M.R. 1991). In so finding, the

Court noted that “military law has long recognized that

the ‘wholly private moral conduct of an individual’ can-

not be regulated.” Fagg, 33 M.J. at 620 citing United

States v. Snyder, 4 C.M.R. 15, 19 (C.M.A. 1952). The

Court of Review made clear that “an individual’s right

to engage in certain sexual activities, however, is not

without limits,” and that “aggravating circumstances can

provide the state with a compelling interest to “istify a

prosecution (e.g., for adultery) where the underlying

act is fornication.” Fagg, 33 M.J. at 620. Similarly, the

Court of Review observed that sodomy convictions under

Article 125 have been sustained ‘“‘where the government’s

interest in prosecuting is clear; for example: the acts

were not private; the acts were nonconsensual; a minor

was involved; the acts were incestuous; or duty relation-

1 He pled not guilty to, and was acquitted of, additional charges of

carnal knowledge and sodomy under Articles 120(b) and 125, UCMJ.

eee

4

ships/need for military discipline were shown.” Jd. at

620, 621 (citations omitted).

In this case, the Court of Review observed that the

petitioner’s acts took place primarily in a private home

outside of Altus Air Force Base, Oklahoma, and that

Oklahoma courts have interpreted the Federal Constitu-

tion to convey a right of privacy that would preclude the

petitioner’s prosecution in State court. Jd. at 621 citing

Hinkle v. State, 771 P.2d 232, 233 (Okla. Crim. App.

1986); Post v. State, 715 P.2d 1105 (Okla Crim. App.

1986), cert. denied, 479 U.S. 890 (1986). The Air Force

found that “the circumstances of this case failed to re-

flect a compelling governmental interest to justify in-

truding into [the petitioner’s relationship with Ms. Colt-

man]. The private nature of the acts avoids any threat

to public morality; indeed, no harm to anyone has been

shown from the appellant’s conduct.” Jd. The Court con-

cluded that the constitutional right of privacy protected

the petitioner’s conduct from prosecution, and noted that

facts presented by this case represented the most un-

aggravated Article 125 case reviewed by that Court,

“lo]nly had the [petitioner] and his partner been mar-

ried to each other would this case present less aggrava-

tion.” Jd. The Air Force Court, in so holding, made clear

that their decision did not invalidate Article 125, but

rather it limited the scope of its broad language with

regard to private, heterosexual, noncommercial, consen-

sual adult sex acts absent a compelling interest to regu-

late such conduct. /d.

The Court of Military Appeals reversed the decision of

the Air Force Court of Military Review and reinstated

the dismissed sodomy specification. The court did so by

referencing its decision in United States v. Henderson,

34 M.J. 174 (C.M.A. 1992), decided the same day as the

petitioner’s case.* United States v. Fagg, 34 M.J. 179,

2In Henderson, the Court of Military Appeals affirmed an ac-

cused’s conviction for private, noncommercial, consensual hetero-

5

180 (C.M.A. 1992). The Court of Military Appeals

stated that although they “sympathiz[ed] with the [peti-

tioner] regarding this particular conviction for what was

unquestionably consensual conduct,” the Court “[n]ever-

theless detect[ed] no indication from the Supreme Court

which permit{ed} [them] to override the intent of Con-

gress. See Bowers v. Hardwick, 478 U.S. 186 (1986).”

Id.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF MILITARY APPEALS ERRED IN

RELYING ON BOWERS v. HARDWICK, 478 U.S. 186

(1986), AS THAT CASE IS INAPPOSITE TO THE

CONSTITUTIONAL CLAIMS OF PETITIONER.

The Court of Military Appeals erred in concluding that

Bowers v. Hardwick, 478 U.S. 186 (1986) precluded

judicial scrutiny and invalidation of the proscription

against sodomy in Article 125(a), UCMJ, as applied to

petitioner’s private, heterosexual, noncommercial, con-

sensual, adult oral sex. This Court explicitly noted that

its opinion regarding homosexual sodomy in Bowers ex-

press[ed] no opinion on the constitutionality of the Geor-

gia statute as applied to other acts of sodomy. Bowers,

478 U.S. at 187 n. 2. The issue before this Court in

Bowers was Hardwick’s suit challenging the statute as

applied to homosexual sodomy, and thus “whether the

Federal Constitution confers a fundamental right upon

homosexuals to engage in sodomy...” Jd. at 190. It

was while resolving that issue that this Court discussed

sexual fellatio. In so doing, the Court rejected the appellant’s con-

tention that his conduct was not proscribed by Article 125(a),

holding that oral copulation has been “openly and expressly pro-

hibited in the armed force of the United States since time imme-

morial.” 34 M.J. at 176. Although the Court recognized that Massa-

chusetts, where Henderson’s act took place, like many other states,

had decriminalized private, noncommercial, heterosexual, consensual

fellatio among adults, the Court declined to follow suit with regard

to Article 125(a), “absent authority from the Supreme Court.” /d.

at 178.

6

the “limits of the Court's role in carrying out its con-

stitutional mandate.” Jd.

Although, like the Georgia sodomy statute, Bowers,

478 U.S. at 187 n. 1, Article 125(a) prohibits both homo-

sexual and heterosexual sodomy, as well as sodomy oc-

curring between married or single heterosexual couples,

the issue presented by the petitioner’s case with regard

to Article 125(a) is, nevertheless, quite distinct than that

addressed by the Court in Bowers, involving as it does

heterosexual sodomy. The Court of Military Appeals,

however, did not analyze whether the Air Force Court

of Military Review erred as a matter of law when

it narrowed the construction of Article 125’s_ broad

reach by finding that private, heterosexual, noncommer-

cial, consensual, adult oral sex was constitutionally pro-

tected from prosecution absent a compelling government

interest. Instead, the Court of Military Appeals merely

expropriated the reasoning in Bowers, which declined to

“extend a fundamental right [under the Due Process

Clauses of the Fifth and Fourteenth Amendments] to

homosexuals to engage in acts of consensual sodomy,”

Bowers, 478 U.S. at 191-92, in order to reverse the Court

of Review. Henderson, 34 M.J. at 177-78, via reference

in Fagg, 34 M.J. at 180. The Court of Military Appeals’

reliance on Bowers is therefore fundamentally flawed, as

Bowers was not binding and was irreievant to this case

of first impression. Bowers simply did not sub silentio

dispose of petitioner’s case as the Court of Appeals in-

ferred. Fagg, 34 M.J. at 180.

Il. THE PETITIONER’S CONDUCT WAS PROTECTED

BY THE DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT.

Had the Court of Military Appeals judicially construed

the Federal Constitution as interpreted by this Court’s

prior cases and applied them to the petitioner’s constitu-

tional claims, the Court of Military Appeals would have

upheld the Air Force Court of Military Review’s decision

7

narrowing the scope of Article 125(a) as inapplicable to

consensual, adult, heterosexual, noncommercial, acts of

oral sex absent a compelling government interest. Peti-

tioner’s constitutional right of privacy for the consensual

acts which occurred during his relationship with Ms.

Coltman flows squarely and logically from the privacy

rights recognized by this Court in, inter alia, United

States v. Griswold, 381 U.S. 489 (1965); Stanley v.

Georgia, 394 U.S. 557 (1969); Eisenstadt v. Baird, 405

U.S. 438 (1972); and Carey v. Population Services, 431

U.S. 678 (1977).

Unlike homosexual activity, the consensual heterosexual

oral sex criminalization in this case is related to “family,

marriage or procreation,” interests characterized as fun-

damental by this Court under the Due Process Clause of

the Fourteenth Amendment. See Bowers, 478 U.S. at 191

referencing Carey, 431 U.S. at 688-89. As for the ap-

plication of Article 125(a) to single heterosexual couples,

the petitioner’s acts of consensual sodomy with Ms. Colt-

man occurred in the bedroom of her off-base house while

both were engaged in a serious dating relationship. At

one point the two even contemplated marriage. As with

married couples, oral sex, like- vaginal intercourse, con-

stituted a common way for this intimate heterosexual

couple to relate to each other.* “A good sex life is central

to a good overall relationship,” * and oral sex constituted

3 According to researchers, oral-genital sex is a basic component

of heterosexual relations in the United States among both married

and unmarried couples. One study found that 72% of married and

unmarried heterosexual couples engage in fellatio, and 74% engage

in cunnilingus, every time they had sex, frequently, or sometimes.

P. Blumstein and P. Schartz, American Couples 236 (1983). Another

study found that approximately 80% of single men and women aged

25-34 have engaged in oral-genital sex. M. Hunt, Sexual Behavior

in the Seventies 198-99 (1974). A more recent study found that

more than 90% of married couples younger than 25 had engaged in

oral sex; more than 90% of heterosexual couples of all ages had

engaged in oral sex. J. Reinisch, The Kinsey /nstitute New Report

on Sex 132 (1990).

4 Blumstein & Schwartz, supra note 3, at 193.

SR ee a

8

one way in which this couple explored the depth and

meaning of their relationship. Moreover, the petitioner’s

heterosexual relationship with Ms. Celtman, unlike a

homosexual relationship, involved “two individuals, each

with a separate intellectual and emotional makeup,”

Eisenstadt, 405 U.S. at 453, for which the option to for-

malize their relationship in marriage and to bear or be-

get children was legally viable. The petitioner’s conduct

while courting Ms. Coltman, far from being criminal,

is more akin to that which “attend the creation and sus-

tenance of a family,” Roberts v. Jaycees, 468 U.S. 609,

619 (1984), and is thus protected by « constitutional

right of privacy. Although the “outer limits of [the right

of personal privacy] have not been marked by the Court,”

Carey, 431 U.S. at 684, surely the petitioner’s right to

engage in consensual, adult, heterosexual, noncommercial,

acts of oral sex with a person with whom he had a serious

dating relationship fall within that outer limit. The pe-

titioner’s acts, under the facts of this case, involve the

very kind of individual liberty which the Bill of Rights

is designed to secure, dealing as it did with a “highly

personal relationship” which should be afforded ‘a sub-

stantial measure of sanctuary from unjustified interfer-

ence by the state.” Roberts, 468 U.S. at 618. The par-

ticular association between the petitioner and Ms. Colt-

man was “sufficiently personal or private to warrant

constitutional protection,” notwithstanding the fact they

were not married to each other, as this Court has “not

held a constitutional protection as restricted to family

members.” Board of Directors of Rotary Int'l v. Rotary

Club of Duarte, 481 U.S. 587 (1987). tt is therefore not

surprising, as noted by the Air Force Court of* Military

Review, that Oklahoma, where petitioner’s conduct oc-

cured, found that the Federal Constitution protected acts

such as the appellant’s, or that this Court denied certio-

rari when that decision was appealed. Hinkle v. State,

771 P.2d 232, 233 (Okla. Crim. App. 1986), cert. denied,

479 U.S. 890 (1986).

9

Moreover, unlike the claimed fundamental right to en-

gage in homosexual sodomy, the petitioner’s claim does

not threaten to take the constitutional right of privacy

“down the road” to legalized “adultery, incest, and other

sexual crimes...” Bowers, 478 at 195-96. In fact, the

Air Foree court made it abundantly clear that its deci-

sion was not implicating sodomy convictions under Arti-

cle 125(a) which have been sustained “where the govern-

ment’s interest in prosecuting is clear; for example: the

acts were not private; the acts were nonconsensual; a

minor was involved; the acts were incestuous; or duty

relationships need for military discipline were shown.”

Fagg. 33 M.J. at 620, 621 (citations omitted).

Not only does the Court of Military Appeal’s decision

uphold the constitutionality of Article 125(a)’s broad

prohibition as applied in petitioner’s case, it also gives

military prosecutors a unconstitutional imprimatur for

prosecutions of married military couples who engage in

identical sexual behavior in the sanctity of the bedroom.

The Court of Military Appeals’ reasoning with regard

to Article 125/a)’s constitutionality as applied to the pe-

titioner’s case is equally applicable to married couples.

Specifically, this Court also “failed” to give an “indica-

tion” in Bowers as to the constitutionality of prosecuting

marital sodomy which would permit the Court of Appeals

to “override the intent of Congress” criminalizing all

sodomy. Fagg, 34 M.J. at 180. The Court of Military

Appeals’ criminalization of marital sodomy occurred even

though the Georgia Attorney General in Bowers conceded

that the Georgia statute would be unconstitutional as ap-

plied to a married couple in light of the marital privilege

identified by this Court in Griswold. Bowers, 478 U.S..-at

218 n. 10 (Stevens, J., dissenting). The Court of Mili-

tary Appeals’ attempts to downplay the unconstitutionally

broad reach of their opinion upholding Article 125(a) in

toto by distinguishing between married and single couples

(““we see nothing in the Hardwick majority opinion which

suggests that the sanctity of the marital bedroom is in

10

jeopardy,” Henderson, 34 M.J. at 178 n. 8) is unsupport-

able under this Court’s precedent. In fact, this Court in

Einsenstadt recognized that the right of privacy inured

to single as well as married individuals and struck down

as unconstitutional a statute forbidding the sale of con-

traceptives to single persons. 405 U.S. at 1038.

III. THE PETITIONER’S PROSECUTION VIOLATED

THE DUE PROCESS AND EQUAL PROTECTION

CLAUSES OF THE FIFTH AMENDMENT.

The Court of Military Appeals’ failure to judicially

scrutinize Article 125(a) with regard to the appellant’s

constitutional claims, and its corresponding reversal of the

Air Force Court of Military Review, also violated the due

process rights of the petitioner. The petitioner’s intimate

acts with Ms. Coltman occurred in Oklahoma, a state in

which acts of cunnilingus and fellatio had been criminal-

ized. See Post, 715 P.2d 1107-08 at n. 1. As the Air

Force Court of Military Review observed, the Oklahoma

statute criminalizing these acts was held by the Okla-

homa Court of Criminal Appeals in 1986 to be violative

of the right of privacy under the United States Constitu-

tion as applied to nonviolent, consensual activity between

adults. Post, 715 P.2d at 1109-10, discussed in Fagg, 33

M.J. at 621. This constitutional protection was reaffirmed

in the wake of the Court’s opinion in Bowers, over a full

year prior to the petitioner’s acts with Ms. Coltman.

Hinkle, 771 P.2d at 238.

The petitioner’s prosecution and conviction for acts pre-

viously construed by the petitioner’s domicile state as pro-

tected under the Federal constitution violated the Fifth

Amendment’s Due Process Clause. Under the Fourteenth

Amendment’s Due Process Clause, state convictions re-

garding offenses for which an accused had a lack of “fair

warning” resulting from an unforeseeable and retroactive

judicial expansion are unconstitutional. Bouie v. Colum-

bia, 378 U.S. 347, 352 (1964). This is true whether the

unforeseeable construction is of either “a narrower and

11

precise statutory language,” Bowie, 378 U.S. at 352, or

of a statute involving “sweeping language” whose “reach

has been confined within the constitutional limits an-

nounced by this Court.” Marks v. United States, 430

U.S. 188, 195 (1977). In both situations, the underlying

principle is identical: “[i]f a state legislature is barred

by the Ex Post Facto Clause from passing such a law,

it must follow that a state supreme court is barred by the

Due Process Clause from achieving the same result by

judicial conviction.” Bouie, 378 U.S. at 353. This same

principle is applicable to interpretations of federal stat-

utes.

Petitioner was unconstitutionally lulled “into a false

Sense of security.” Bouie, 378 U.S. at 352. Petitioner

had no reason to suspect that the Federal Constitution,

which confined the reach of the sodomy statute in his

domicile state and protected his acts there from prosecu-

tion, would subsequently be interpreted as failing to ac-

cord him the same protection when prosecuted via an Air

Force court-martial. The fact that the petitioner was

tried at Altus Air Force Base instead of the correspond-

ing state court for the town of Altus, Oklahoma does not

defeat the petitioner’s due process claim, as alluded to by

the Court of Military Appeals in Fagg, 34 M.J. at 180,

when it relied on Henderson, 34 M.J. at 178 (although

Massachusetts did not deem fellatio criminal, the Court

of Military Appeals gauged the case against Federal stat-

ute and Constitution). Unlike the case in Henderson, the

petitioner’s domicile state found acts such as the peti-

tioner’s protected by the Federal, not state, Constitution.

Hinkle, 771 P.2d at 233; Post 715 P.2d at 1109-10.

Additionally, when rejecting a judicial ex post facto con-

stitutional attack on a broadly written Tennessee statute

judicially interpreted as proscribing sodomy, this Court,

inter alia, looked to other jurisdictions and found that

they had already reasonably construed identical statutory

language to apply to the challenged acts. Rose v. Locke,

423 U.S. 48 (1978). Such an analysis supports the peti-

12

tioner’s due process claim in this case. Not only had the

State in which the petitioner’s acts took place previously

found the Federal Constitution narrowed Oklahoma’s pro-

scription against sodomy, the petitioner’s adult, private,

consensual, noncommercial, heterosexual acts would not

be criminal in the vast majority of states.5 Moreover,

the Air Force’s failure to enforce Article 125(a)’s pro-

hibition against consensual sodomy as applied to private,

noncommercial, consensual, heterosexual, adult sodomy

absent a compelling government interest,® also added to

5In fact, only seventeen states have statute on the books which

criminalize both heterosexual and homosexual sodomy. Ala. Code

§ 13A-6-65(a) (3) (1982); Ariz. Rev. Stat. Ann. §§ 13-1411, 13-1412

(1989) ; D.C. Code Ann. § 22-3502 (1989); Fla. Stat. Ann. § 800.02

(1976) (deviate sexual intercourse) (Florida now punishes sodomy

under this statute after its sodomy statute (§ 800.01) was declared

unconstitutional in Franklin v. State, 257 So.2d 21 (Fla. 1971));

Ga. Code Ann. § 16-6-2 (Michie 1988) ; Idaho Code § 18-6605 (1987) ;

La. Rev. Stat. Ann. § 14:89 (West 1986); Md. Ann. Code art. 27,

§§ 553, 554 (1992) ; Mich. Comp. Laws Ann. § 750.158 (West 1991) ;

Minn. Stat. Ann. § 609.293 (West 1987) ; Miss. Code Ann. § 97-29-59

(1973); N.C. Gen. Stat. § 14-177 (1991); Okla. Stat. Ann. tit. 21,

§ 886 (West 1983) ; R.I. Gen. Laws § 11-10-1 (1981) ; S.C. Code Ann.

§ 16-15-120 (Law. Co-op. 1985) ; Utah Code Ann. § 76-5-403 (1990) ;

Va. Code Ann. § 18.2-361 (Michie 1988). Moreover, the constitu-

tionality of these statutes, under either the respective state or the

Federal Constitution, is an open question. See e.g., Schochet v. State,

580 A.2d 176 (Md. 1990) (narrowing Maryland’s broad sodomy

statute).

Seven states criminalize only homosexual sodomy. Ark. Code

Ann. § §-14-122 (Michie 1987); Kan. Stat. Ann. § 21-3505 (1988) ;

Ky. Rev. Stat. Ann. § 510.100 (Michie/Bobbs-Merrill 1990); Mo.

Ann. Stat. § 566.090 (Vernon 1979); Mont. Code Ann. §§ 45-5-505,

45-2-101(20) (1991) ; Nev. Rev. Stat. Ann. § 201.190 (Michie 1986) ;

Tenn. Code Ann. § 39-13-510 (1991).

*In fact, in the last five years, there had been 36 cases of viola-

tions of Article 125(a) prosecuted. Memorandum from Air Force

Legal Services Center, Military Justice Division, Personnel Accused

of Sodomy—Other Cases (June 6, 1992) (on file with Air Force

Legal Services Agency, Appellate Defense Division). Of these, 14

involved homosexual activity, 22 involved heterosexual activity. Of

those prosecuted for heterosexual activity, the sodomy charge was

13

the petitioner’s lack of fair warning that his intimate

conduct with Ms. Coltman would be prosecuted, as does

the fact that previously published Court of Military Ap-

peals cases in this area involved charges that were re-

ferred against an accused for sodomy “by force and with-

out consent,” United States v. Harris, 8 M.J. 52, 59

(C.M.A. 1979), or involved fellatio which occurred in a

public place, United States v. Scoby, 5 M.J. 160, 164

(C.M.A. 1978).

The petitioner’s prosecution also violated the Equal

Protection Clause of the Fifth Amendment. Petitioner

was prosecuted for violating Article 125(a) despite the

fact that there is no evidence that any married couple

has ever been prosecuted by the Air Force for engaging

in the same acts.’ Eisenstadt struck down as violative of

the Equal Protection Clause of the Fourteenth Amend-

ment a Massachusetts law distinguishing between mar-

ried and single persons with regard to access to birth

control because there was no difference that rationally

explained the different treatment accorded married and

unmarried persons. Hisenstadt, 405 U.S. at 1038. Simi-

larly, there is no difference which explains why an un-

married person such as the petitioner has been subject

to prosecution in this case under Article 125(a) when

married persons have not been. Accordingly, the dis-

similar treatment afforded the petitioner and married

persons in terms of Article 125(a)’s enforcement violated

the Equal Protection Clause of the Fifth Amendment.

within the context of an adulterous relationship, in a public or semi-

public place, involved superior-subordinate military contact, in;

volved family members or minors, or a combination of the above?

None involved married parties, or was similar to the private, hetero-

sexual, noncommercial acts engaged in by the petitioner and Ms.

Coltman in which a military government interest was so utterly

lacking. Due to the logistics involved, this inquiry delved into the

past 5 years, but we expect a more exhaustive investigation would

have yielded similar results.

7 See supra note 6.

14

CONCLUSION

The petitioner’s case is a worthy one for a grant of

certiorari. Review of this case is imperative to resolve

the issue left undecided in Bowers: the constitutionality

of applying sodomy laws to heterosexual oral sex. The

decision below erroneously relied exclusively on Bowers to

reverse the Air Force Court of Military Review’s opinion

granting constitutional protection to private, consensual,

heterosexual, noncommercial adult sodomy. Unlike the

claimed homosexual right to engage in sodomy rejected in

Bowers, heterosexual oral sex is inextricably intertwined

with interests involving marriage, family, and procrea-

tion. These heterosexual acts are thus deserving of con-

stitutional privacy protection against government intru-

sion absent a compelling government interest, a protec-

tion which was stripped from military married and single

couples by the decision below. The petitioner’s case should

also be reviewed because his prosecution for acts pro-

tected by the Federal Constitution in his domicile state

violated the Fifth Amendment’s Due Process Clause, and

the Air Force’s decision to enforce Article 125(a) against

the petitioner, but not married couples (thus far), vio-

lates the Equal Protection Clause of the Fifth Amend-

ment.

Respectfully submitted,

DAVID D. JIVIDEN

Counsel of Record

Captain, United States Air Force

Appellate Defense Division

ay URSULA P. MOUL

Captain, United States Air Force

Appellate Defense Division

June 1992

ALICE M. KOTTMYER

Major, United States Air Force

Acting Chief Appellate Defense Counsel

Air Force Legal Services Agency

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel for Petitioner

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 67,216

ACM 29129

UNITED STATES,

Appellant

V.

Scott P. Face, Airman, U.S. Air Force,

Appellee.

Argued Dec. 5, 1991

Decided March 24, 1992

For the Accused: Captain Beverly B. Knott (argued) ;

Colonel Jeffrey R. Owens (on brief).

For the United States: Major Paul H. Blackwell, Jr.

(argued); Lieutenant Colonel Brenda J. Hollis (on

brief) ; Captain James C. Sinwell.

Opinion of the Court

COX, Judge:

This case is a companion to United States v. Hender-

son, 34 MJ 174 (CMA 1992), also decided this day. As

in Henderson, the issues before us concern the constitu-

tionality of Article 125(a), Uniform Code of Military

Justice, 10 USC § 925(a), which proscribes “sodomy,”

statutorily defined as “unnatural carnal copulation with

(la)

i |

2a

another person of the same or opposite sex or with an

animal.” For the reasons stated in Henderson, we up-

hold the constitutionality of Article 125(a).

The accused was convicted, in accordance with his

pleas, of one specification of consensual sodomy (fellatio

and cunnilingus) and one specification of carnal knowl-

edge [Art. 120(b), UCMJ, 10 USC § 920(b)]. A mili-

tary judge sitting alone as a general court-martial at

Altus Air Force Base, Oklahoma, sentenced the accused to

a bad-conduct discharge, confinement for 7 months, and

reduction to airman basic, which the convening authority

approved. At the Court of Military Review, the accused

argued that the sodomy conviction should be reversed,

and the majority of that court agreed, “recogniz[ing]

a constitutional zone of privacy for heterosexual, non-

commercial, private acts of oral sex between consenting

adults.” 33 MJ 618, 619 (1991).

The Acting Judge Advocate General of the Air Force

certified these issues for review:

I

WHETHER THE AIR FORCE COURT OF MILI-

TARY REVIEW ERRED WHEN IT RECOG-

NIZED A “CONSTITUTIONAL ZONE OF PRI-

VACY FOR HETEROSEXUAL, NONCOMMER-

CIAL, PRIVATE ACTS OF ORAL SEX BETWEEN

CONSENTING ADULTS,” THEREBY SETTING

ASIDE AN ARTICLE 125 SODOMY CONVIC-

TION.

II

WHETHER THE AIR FORCE COURT OF MILI-

TARY REVIEW ERRED WHEN IT HELD THAT

THERE MUST BE A COMPELLING GOVERN-

MENTAL INTEREST IN ORDER TO SUSTAIN A

CONVICTION UNDER ARTICLE 125 FOR A

PRIVATE, HETEROSEXUAL, NONCOMMER-

CIAL, CONSENSUAL ADULT ORAL SEX ACT.

3a

In reality, it would appear that sodomy had little

bearing on sentence. By his own unabashed account, the

accused, an 18-year-old airman, cut a rather wide swath

through the pubescent female population of Altus, Okla-

homa, in his first year after basic training. Unfortu-

nately for him, his quest led him a little too close to the

cradle on one occasion—with a 14-year-old junior high

school student. In the military, carnal knowledge (sexual

intercourse with a female under age 16) carries a maxi-

mum punishment of dishonorable discharge, confinement

for 15 years, reduction, and total forfeitures. Para.

45a(2), Part IV, Manual for Courts-Martial, United

States, 1984,

Be that as it may, for the reasons announced in Hen-

derson, we reverse that portion of the Court of Military

Review’s decision setting aside the sodomy conviction, and

We reinstate it. Like Judge James, dissenting below, we

may sympathize with the accused regarding this par-

ticular conviction for what was unquestionably consensual

conduct. * Nevertheless, we detect no indication from the

Supreme Court which permits us to override the intent of

Congress. See Bowers ». Hardwick, 478 U.S. 186. 106

S.Ct. 2841, 92 L.Ed.2d 140 (1986).

The decision of the United States Air Force Court of

Military Review dismissing the sodomy specification and

reassessing the sentence is reversed. The findings of

guilty of sodomy (the Additional Charge and its specifi-

cation) and the original sentence are reinstated. The

record of trial is returmed to the Judge Advocate Gen-

eral of the Air Force for remand to that court for fur-

*Tronically, it was the accused’s jilted 16-year-old partner in

sodomy who reported him to the police, after he had left her

first for another 16-year-old and then for the 14-year-old. Before

the complaint was lodged, however, the accused had already moved

on to an 18-year-old, whom he married on the eve of his Article 32,

Uniform Code of Military Justice, 10 USC § 832, investigation, after

a 2-month acquaintanceship.

a

4a

ther review of the approved findings and the original sen-

tence under Article 66(c), UCMJ, 10 USC § 866(c).

Chief Judge SULLIVAN, Judges CRAWFORD and

GIERKE, and Senior Judge EVERETT concur.

Judge WISS did not participate.

-

va

APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 29129

UNITED STATES

Vv.

AIRMAN Scott P. FaGG, FR414-47-3344

United States Air F orce

Sentence Adjudged 12 Dec. 1990

Decided 6 Aug. 1991

Appellate Counsel for the Appellant: Captain Beverly

B. Knott (argued), Lieutenant Colonel Jeffrey R. Owens,

and Major G. Michael Lennon.

Appellate Counsel for the United States: Colonel Wil-

liam T. Hoffman (argued), Colonel William R. Dugan,

Jr., and Major Paul H. Blackwell, Jr.

Before LEONARD, RIVES and JAMES, - Appellate

Military Judges.

OPINION OF THE COURT

RIVES, Judge:

Today we recognize a constitutional zone of privacy for

heterosexual, noncommercial, private acts of oral Sex

between consenting adults. Since that right to privacy

is not outweighed by any compelling governmental inter-

6a

est under the facts of this case, we reverse the appellant’s

sodomy conviction.

The appellant, Airman Scott P. Fagg, was 18 years old

when he engaged in sexual acts with young women he

was dating. Facing court-martial charges for some of

those acts, he pleaded guilty to carnal knowledge with a

14-year-old and sodomy with a 16-year-old. He elected

trial by military judge alone at his general court-martial.

His adjudged and approved sentence is a bad conduct

discharge, confinement for 7 months, and reduction to

E-1.

Airman Fagg admitted engaging in oral sex (both cun-

nilingus and fellatio) on numerous occasions with his

16-year-old girlfriend, who is treated as an adult for

these purposes under military law. Article 125, 10 U.S.C.

§ 925 proscribes “unnatural carnal copulation with an-

other person of the same or opposite sex.” The article’s

broad statutory language prohibits all sodomy, whether

consensual or forcible, private or public, heterosexual or

homosexual. The Manual for Coutrs-Martial finds par-

ticular aggravation for sentencing when the act is “done

with a child under the age of 16” or when it is done

“by force and without the consent of the other person.”

MCM, Part IV, paragraph 51b(2) and (3) (1984); see

also MCM, Part IV, paragraph 5le (1984) (providing

increased punishments when such aggravation is proven).

The Article 125 prohibition of “unnatural carnal copu-

lation” has withstood attacks that it is unconstitutionally

vague. United States v. Scoby, 5 M.J. 160 (C.M.A.1978).

The term “unnatural carnal copulation” has been defined

to inglude both fellatio and cunnilingus. United States v.

Harris, 8 M.J. 52 (C.M.A.1979). At issue in this case

is whether a private, consensual, heterosexual, adult act

of oral sodomy can be prosecuted as a violation of Article

125.

The appellant urges that applying Article 125 to his

fact situation violates his constitutional right to privacy.

Ta

Although the Constitution does not mention any specific

‘right to privacy,” it was noted long ago that the framers

of the Constitution “sought to protect Americans in their

beliefs, their thoughts, their emotions, and their sensa-

tions. They conferred, as against the government, the

right to be let alone—the most comprehensive of rights

and the right most valued by civilized man.” Olmstead

v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572,

72 L.Ed. 944 (1928) (Brandeis, J., dissenting) (em-

phasis added).

A fundamental, constitutional right to privacy was ex-

pressly recognized in Griswold v. Connecticut, 381 U.S.

479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965),

when the Court held that a state could not constitution-

ally regulate the distribution of contraceptives to married

couples. The Court reasoned that a “zone of privacy” is

implicitly included among the rights that were enum-

erated in the Constitution. Jd. at 484, 48 S.Ct. at 574-75.

The right to privacy was extended to unmarried per-

sons in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029,

31 L.Ed.2d 349 (1972), when the Court ruled that a

statute regulating distribution of contraceptives to sin-

gle adults was unconstitutional. The Court observed: “If

the right of privacy means anything, it is the right of

the individual, married or single, to be free from un-

warranted governmental intrusion into matters so fun-

damentally affecting a person as the decision whether to

bear or beget a child.” Jd. at 453, 92 S.Ct. at 1088.

Privacy rights are not limited to matters of procrea-

tive choice. Predating Eisenstadt is Stanley v. Georgia,

394 U.S. 557, 89 S.Ct. 1248, 22 L.Ed.2d 542 (1969),

which holds that an individual’s right to view obscene

material in the privacy of the home cannot. be regulated

by the state. Thus, the Court has recognized a right of

privacy, whether within or outside a marital relation-

ship, that extends into the area of sexual intimacy.

8a

The Supreme Court has noted that “the outer limits”

of the right to privacy “have not been marked.” Carey

v. Population Services International, 481 U.S. 678, 684,

97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977). It has been

determined, however, that the right to privacy does not

protect an accused charged with homosexual sodomy.

Bowers v. Hardwick, 478 U.S. 186, 190, 196, 106 S.Ct.

2841, 2846-47, 92 L.Ed.2d 140 (1986). While the statute

at issue in Bowers (like Article 125) prohibits all acts

of sodomy, the Court carefully limited its ruling: ‘We

express no opinion on the constitutionality of the...

statute as applied to other acts of sodomy.” /d. at 188

n. 2, 106 S.Ct. at 2842 n. 2. Addressing this point in

his dissent, Justice Stevens stated it was clear to him

that a state “may not prohibit sodomy within ‘the sacred

precincts of marital bedrooms,’ Griswold, 381 U.S., at

485 [85 S.Ct. at 1682], or, indeed, between unmarried

heterosexual adults. Eisenstadt, 405 U.S., at 453 [92

S.Ct. at 1038].” Bowers, 478 U.S. at 218, 106 S.Ct. at

2858.

When a fundamental personal liberty (such as the

right to privacy) is involved, that right is subject to

regulation only insofar as the intrusion is necessary to

promote a “compelling state interest.” See, e.g., Roe v.

Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d

147 (1973); Griswold, 381 U.S. at 497-98, 85 S.Ct. at

1688-89 (Goldberg, J., concurring).

Military law has long recognized that the “wholly pri-

vate moral conduct of an individual” cannot be regulated.

United States v. Snyder, 1 U.S.C.M.A. 324, 427, 4 C.M.R.

15, 19 (1952). An individual’s right to engage in cer-

tain sexual activities, however, is not without limits.

Thus, while fornication per se is not a crime under the

UCMJ, United States v. Burns, 25 C.M.R. 791, 794

(A.F.B.R.1957), pet. denied, 25 C.M.R. 486 (1958), ag-

gravating circumstances can provide the state with a

compelling interest to justify a prosecution (e.g., for

ee

9a

adultery) where the underlying act is fornication. See

United States v. Parrillo, 31 M.J. 886 (A.F.C.M.R.1990)

(aggravation provided by an officer-enlisted, supervisor-

subordinate duty relationship), pet. granted, 33 M.J. 161

(C.M.A.1991).

Appellate courts have sustained convictions under Ar-

ticle 125 where the government’s interest in prosecuting

is clear; for example: the acts were not private, United

States v. Scoby, 5 M.J. 160, 164 (C.M.A.1978) ; United

States v. Linnear, 16 M.J. 628 (A.F.C.M.R.1983), pet.

denied, 17 M.J. 277 (C.M.A.1983); the acts were non-

consensual, United States v. Womack, 29 M.J. 88 (C.M.A.

1989) ; United States v. Rogan, 19 M.J. 646 (A.F.C.M.R.

1984) ; United States v. Means, 20 M.J. 522 (A.C.M.R.

1985), affirmed, 25 M.J. 160 (C.M.A.1987); United

States v. Jones, 14 M.J. 1008, 1009 (A.C.M.R.1982); a

minor was involved, United States v. Romey, 32 M.J. 180

(C.M.A.1991) ; United States v. Williams, 25 M.J. 854

(A.F.C.M.R.1988); the acts were incestuous, United

States v. Ciulla, 29 M.J. 868 (A.F.C.M.R.1989) ; or duty

relationships/need for military discipline were shown,

United States v. Wilson, 28 M.J. 48 (C.M.A.1989) ;

United States v. Hardy, 30 M.J. 757 (A.C.M.R.1990) ;

United States v. McFarlin, 19 M.J. 790 (A.C.M.R.1985).

We note that while sodomy was illegal in all 50 states

in 1960, by 1986 only half continued to criminalize acts

of sodomy occuring “in private and between consenting

adults.” Bowers, 478 U.S. at 193-94, 106 S.Ct. at 2845-

46; see generally Annotation, Validity of Statute Making

Sodomy a Criminal Offense, 20 A.L.R.4th 1009 (1983).

The appellant’s acts took place primarily in a private

(off-base) home near Altus Air Force Base, Oklahoma.

Of some interest is the fact that Oklahoma courts have

interpreted the Federal Constitution to convey a right of

privacy that would preclude this appellant’s prosecution

in State court. See Hinkle v. State, 771 P.2d 232, 233

(Okl.Crim.App.1989) ; Post v. State, 715 P.2d 1105 (OkI.

10a

Crim.App.1986), cert. denied, 479 U.S. 890, 107 S.Ct.

290, 93 L.Ed.2d 264 (1986).

Analyzing the facts of this case, we find a fundamental

right of sexual privacy for the appellant’s consensual,

adult, heterosexual, noncommercial, private acts of oral

sex. The circumstances of this case fail to reflect a com-

pelling governmental interest to justify intruding into

that relationship. The private nature of the acts avoids

any threat to public morality; indeed, no harm to anyone

has been shown from the appellant’s conduct. In the

many Article 125 prosecutions this Court has reviewed,

none has resulted from a fact situation as unaggravated

as the appellant’s. Only had the appeliant and his part-

ner been married to each other would his case present

less aggravation. We hold that the constitutional right of

privacy protects the appellant’s conduct from prosecution.

See Scoby, supra, 5 M.J. at 166.

Our decision limits the scope of Article 125; it does

not invalidate the statute. We are sensitive to our status

as a court, not a legislature. The statute is written in

very broad language, however, and questions about its

reach are raised by its silence as to the matters we find

relevant here. To sustain a prosecution under Article 125

for a private, heterosexual, noncommercial, consensual

adult sex act, aggravating factors that support a com-

pelling interest to regulate such conduct must be present.

Contra United States v. Henderson, 32 M.J. 941, 946

(N.M.C.M.R.1991).

The findings of guilty to sodomy (the Additional

Charge and its specification) are set aside and dismissed.

We are satisfied that we can reassess the sentence for the

remaining findings of guilty. United States v. Peoples,

29 M.J. 426 (C.M.A.1990); United States v. Sales, 22

M.J. 305 (C.M.A.1986). Considering all relevant mat-

ters before the Court on the remaining charge and its

specification, we approve a sentence of confinement for 7

months and reduction to the grade of E-1. Next, con-

lla

sidering appellant’s assertion that his sentence is too

severe, we examine the entire record of trial and find

the reassessed sentence appropriate. Article 66(c),

UCMJ, 10 U.S.C. § 866(c).

The approved findings of guilty and the sentence, both

as modified, are correct in law and fact and are

AFFIRMED.

Senior Judge LEONARD concurs.

JAMES, Judge, dissenting:

My brethren probably do what is best today, and their

vote gives me the luxury of dissent.

The first premise in the logical argument in this case

must be, “There is a constitutional right of privacy that

protects consenting, heterosexual, adult, private, non-

commercial, untraditional,! sexual activity,” but there is

no authority for that proposition among the decisions of

the Supreme Court of the United States. It has come

close in opinions about procreation, marital and family

relationships, and freedom to think, but it has not yet

spoken on heterosexual copulatory mechanics. Other ju-

risdictions have been called upon to decide the same issue,

and they have split. Of all their decisions, Schochet v.

State, 75 Md. App. 314, 541 A.2d 183 (Md.App.1988),

so well states my views that I cannot improve upon its

analysis and nothing of consequence has happened in the

3 years since it was written.? In brief, the decisions of

1 Non-vaginal sex. ( do not overlook the recent polls and the

relics of the ancient world that suggest that fellatio and cunnilingus

might be as much the norm as other forms of sexual activity.

Neither the polls nor mores nor morality can be at issue until one

first decides whether there is a constitutional protection.

* The decision to which I cite was overruled by the state supreme

court. Schochet v. State, 320 Md. 714, 580 A.2d 176 (1990). The

higher court’s approach and analysis do not detract from the re-

liability of the analysis of the intermediate court.

12a

the Supreme Court have not yet provided enough infor-

mation that its direction on this issue can be predicted.

It is on precisely this point that the majority and I dis-

agree. I must dissent. I would affirm, though with

enormous reluctance.

13a

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No..67216/AF

CMR Dkt. No. 29129

UNITED STATES,

Appellee

i 2

Scott P. Face (414-47-3344 ) |

Appellant

ORDER

Because no petition for reconsideration has been filed

within the period prescribed by Rule 31(a) of the Rules

of Practice and Procedure, United States Court of Mili-

tary Appeals, it is by the Court this 14th day of April

1992,

ORDERED:

That this Court’s opinion in the above-entitled case

(34 MJ 179) is now final.

For the Court,

s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (BLACKWELL)

Appellate Government Counsel (KNOTT)

wv U. S. GOVERNMENT PRINTING OFFICE 1992 324844 59018