United States v. Gates

40 M.J. 354, 1994 CMA LEXIS 86, 1994 WL 577534

• Court: United States Court of Military Appeals
• Decided: September 16, 1994
• Docket: No. 93-1004; CMR No. 9200673
• Status: Published

Opinion

Opinion of the Court

WISS, Judge:

In this appeal from a contested general court-martial in which the officer and enlisted members convicted appellant of sodomy,¹ we granted review of the following issue raised by appellate defense counsel:

WHETHER A SERVICEMEMBER CAN BE CONVICTED UNDER UCMJ ARTICLE 125 FOR ENGAGING IN PRIVATE,[²] NONADULTEROUS, NONCOMMERCIAL, CONSENSUAL, HETEROSEXUAL FELLATIO.

Appellant acknowledges that the answer inevitably is adverse to him under our decision in United States v. Henderson, 34 MJ 174 (CMA 1992); accord United States v. Fagg, 34 MJ 179 (CMA), cert. denied, — U.S. -, 113 S.Ct. 92, 121 L.Ed.2d 54 (1992). He has pleaded, however, for a more favorable reconsideration of that decision and apparently in some manner is encouraged in that hope by our intervening decision in United States v. Stocks, 35 MJ 366 (CMA 1992).

Nonetheless, we are no more free now than we were 2 years ago to reject the clear proscription of Congress in Article 125, Uniform Code of Military Justice, 10 USC § 925. In full response to appellant’s present contention that his conviction violates the penumbral rights reserved in the Ninth Amendment and due process and equal protection guaranteed in the Fifth Amendment, this Court in Henderson held: First, as evident from the opinions in United States v. Harris, 8 MJ 52 (CMA 1979), and United States v. Scoby, 5 MJ 160 (CMA 1978), and other authorities, the evolutionary history of Article 125 is clear that Congress intended to include fellatio within the ambit of “unnatural carnal copulation” as that term is used in that statute, even consensual, noncommercial, heterosexual fellatio that is performed in private between two unmarried adults; and second, under the Supreme Court’s analytical construct for resolving due process violations in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),³ “we cannot declare that there is a right to privacy in the Constitution that invalidates an Act of Congress outlawing fellatio.” 34 MJ at 178.

Our decision in Stocks offered no realistic refuge from Henderson. The textual theory of the Stocks opinion manifestly is limited, 35 MJ at 367, and nothing in that theory or anywhere in the language of the opinion suggests that the specifically statutorily proscribed act of sodomy is for some reason lawful. Accordingly, appellant’s constitutional challenge to his conviction lacks merit.⁴

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX, CRAWFORD, and GIERKE concur.

1 . Appellant was charged with rape of Specialist O and sodomy with Private First Class S, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 USC §§ 920 and 925, respectively, but was found guilty only of the latter. The members sentenced him to a bad-conduct discharge and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review affirmed in an unpublished opinion.

2 . Appellant has phrased this issue in terms of the fellatio being in private. Though the circumstances do not altogether support that characterization, we will assume its accuracy for purposes of this appeal.

3 . Appellant tempts us to minimize the importance of Bowers on the ground that that case involved homosexual conduct which, appellant urges, is not entitled to the same heightened protection as heterosexual conduct. It is not the conduct that was in issue there or the Court’s ultimate decision which is of particular importance, however; rather, as the Henderson opinion demonstrates, what is critical is the Bowers Court's analytical "approach that seems to be applicable to any claimed due process right.” 34 MJ 174, 177 (CMA 1992).

4 . It appears that appellant's sodomitic consort was not prosecuted for her part. Appellant made no motion at trial or complained on appeal, however, of selective prosecution. In any event, given the prosecution's evidence (rebutted by appellant's) as to how the fellatio was initiated and given, also, that appellant was charged with (though subsequently acquitted of) raping the other woman in the three-person drinking spree that formed the backdrop for all this, it does not appear likely that appellant could have carried his heavy burden to establish selective prosecution. See United States v. Garwood, 20 MJ 148, 154 (CMA), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 456 (1985); see also Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).