IN THE CASE OF
UNITED STATES, Appellee
v.
Darrell R. Stirewalt, Health Services Technician Second Class
U.S. Coast Guard, Appellant
No. 03-0433
Crim. App. No. 1098
United States Court of Appeals for the Armed Forces
Argued April 27, 2004
Decided September 29, 2004
ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
separate opinion concurring in part and in the result.
Counsel
For Appellant: Lieutenant Commander Nancy J. Truax (argued);
Lieutenant Laurina M. Spolidoro.
For Appellee: Lieutenant Sandra J. Miracle (argued); Lieutenant
Commander John S. Luce Jr.
Military Judge: W. J. Dunaway
This opinion is subject to editorial correction before final publication.
United States v. Stirewalt, 03-0433/CG
Judge ERDMANN delivered the opinion of the Court.
Health Services Technician Second Class (E-5) Darrell
Stirewalt was convicted of a number of offenses involving his
female shipmates. Before this Court Stirewalt argues that his
prosecution was tainted with unlawful command influence, that
the investigating officer had an impermissible conflict of
interest and that his conviction for sodomy violated the Fifth
Amendment. We affirm the decision of the Coast Guard Court of
Criminal Appeals.
PROCEDURAL BACKGROUND
As this case has a long and complex procedural history, a
brief review of that procedure is helpful in providing a
contextual basis for this decision.
A. The Initial Trial
Stirewalt was originally tried by a general court-martial
and was convicted of four specifications of maltreatment by
sexual harassment, one specification of rape, one specification
of forcible sodomy, three specifications of assault consummated
by a battery, four specifications of adultery and four
specifications of indecent assault. Prior to sentencing, the
military judge dismissed two specifications of maltreatment, two
specifications of assault consummated by a battery and one
specification of adultery. The members sentenced Stirewalt to a
dishonorable discharge, ten years’ confinement, forfeiture of
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United States v. Stirewalt, 03-0433/CG
all pay and allowances and reduction to the lowest enlisted
grade.
B. The Initial Court of Criminal Appeals Appeal
Stirewalt’s conviction and sentence were reviewed by the
Coast Guard Court of Criminal Appeals under Article 66(c),
Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 866(c)
(2000). The Court of Criminal Appeals found that the military
judge had erred in excluding certain testimony under the "rape
shield" provisions of Military Rule of Evidence 412. See United
States v. Stirewalt, 53 M.J. 582 (C.G. Ct. Crim. App. 2000). As
a result of that ruling, the court set aside the guilty findings
for the offenses involving Stirewalt's female department head,
which included rape, forcible sodomy, assault and battery and
indecent assault. The court affirmed the remaining guilty
findings but set aside the sentence and authorized a rehearing.
C. The Rehearing -- Motion to Dismiss
The case was returned to the convening authority for a
rehearing on sentence and, if practicable, a rehearing on the
charges that had been set aside. The convening authority
ultimately referred all of the charges that the Court of
Criminal Appeals had set aside to a general court-martial for
rehearing.
Based on evidence discovered after his first trial,
Stirewalt moved to dismiss all of the charges referred for
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United States v. Stirewalt, 03-0433/CG
retrial on the grounds of unlawful command influence. Stirewalt
contended that (1) the original decision to request an
investigation of the charges pursuant to Article 32, UCMJ, 10
U.S.C. § 832 (2000) was tainted by unlawful command influence;
(2) witnesses had been discouraged from coming forward on his
behalf; (3) actions of the command had tainted the member pool;
and (4) the Article 32 investigating officer lacked independence
and later improperly acted as the staff judge advocate in
providing advice on the case.
Although the military judge denied Stirewalt's motion to
dismiss, he did order several remedial measures that he
characterized as "necessary to ensure that the accused receives
a fair trial and to restore the public confidence in the present
case." The military judge found no unlawful command influence
in terms of the initial referral of the charges or any "taint"
of the member pool, but he did conclude that the Government had
failed to demonstrate beyond a reasonable doubt that improper
interference with witnesses had not occurred. He also found
that the Article 32 investigating officer "was not aggressive
enough in his attempts to shield himself from subsequent action
on the same case that he served as the [investigating officer]."
In light of those conclusions the military judge ordered
that certain steps be taken to ensure full access to witnesses
by the defense and that the convening authority designate a new
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United States v. Stirewalt, 03-0433/CG
place of trial. He also ordered that the Article 32
investigating officer take no further steps with regard to the
case and remove himself from the rating chain of the assistant
trial counsel.
D. Interlocutory Request for Extraordinary Relief
In response to the military judge's ruling, Stirewalt filed
a petition for a writ of mandamus with the Court of Criminal
Appeals. He asked the court for an order either directing the
convening authority to withdraw and dismiss the charges on
grounds of unlawful command influence or, alternatively,
disqualifying the convening authority and appointing a
substitute convening authority. The Court of Criminal Appeals
denied Stirewalt's petition and "approve[d] the military judge's
findings, his denial of the motion below, and the actions
ordered by him to facilitate a fair rehearing and to restore
public confidence in the case." See Stirewalt v. Pluta, 54 M.J.
925, 927 (C.G. Ct. Crim. App. 2001).
E. Rehearing and Disposition
The matter was returned for rehearing and Stirewalt elected
a trial by military judge alone. In accordance with the terms
of a pretrial agreement, Stirewalt pleaded guilty in March 2001
to one specification of sodomy under Article 125, UCMJ, 10
U.S.C. § 925 (2000). Pursuant to the pretrial agreement, the
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United States v. Stirewalt, 03-0433/CG
Government dismissed with prejudice the rape, forcible sodomy,
assault and indecent assault charges.
At that point, Stirewalt stood convicted of sexual
harassment, adultery and indecent assault from his first trial
and of sodomy from the rehearing. The military judge sentenced
Stirewalt to 90 days’ confinement, reduction in pay grade to E-
4, and a reprimand. The convening authority approved the
sentence.
F. Second Court of Criminal Appeals Decision
The Court of Criminal Appeals again reviewed the matter
under Article 66(c), UCMJ. Stirewalt raised seven assignments
of error, six of which the court viewed as having already been
addressed and disposed of in its earlier decisions in the case.
See United States v. Stirewalt, 58 M.J. 552, 554 (C.G. Ct. Crim.
App. 2003). The only "new" assignment of error involved a
request by Stirewalt that credit for his "excess" confinement be
applied against his adjudged reduction in rank. That claim was
rejected on the basis of our decisions in United States v.
Rosendahl, 53 M.J. 344 (C.A.A.F. 2000) and United States v.
Josey, 58 M.J. 105 (C.A.A.F. 2003).
Stirewalt then petitioned this Court for review of his case
under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000). His
defense counsel assigned six errors and he individually asserted
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United States v. Stirewalt, 03-0433/CG
seven errors pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). We granted review of the following issues:
I. WHETHER A SUBORDINATE COMMANDER CAN BE SAID TO HAVE
EXERCISED INDEPENDENT JUDGMENT WHEN THE COMMANDER'S THIRD
LEVEL SUPERVISOR "FORCEFULLY" ADVISED THE COMMANDER THAT
APPELLANT'S CHARGES WERE "TOO SERIOUS" TO BE HANDLED AT NJP
OR SPECIAL COURT-MARTIAL AND "NEEDED TO BE HEARD . . . BY
AN UNLIMITED TRIBUNAL."
II. WHETHER APPELLANT WAS PREJUDICED WHEN THE
INVESTIGATING OFFICER VIOLATED UCMJ ARTICLE 6(c) AND R.C.M.
405(d)(1) BY PROVIDING EX PARTE ADVICE TO BOTH THE
CONVENING AUTHORITY AND THE STAFF JUDGE ADVOCATE UPON
REMAND FROM THE LOWER COURT.
III. WHETHER APPELLANT'S CONVICTION FOR ADULT, CONSENSUAL
SODOMY VIOLATES HIS VITAL INTEREST IN LIBERTY AND PRIVACY
PROTECTED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.
We find that Stirewalt’s commander exercised independent
discretion in requesting an Article 32 investigation, that
Stirewalt was not prejudiced by the subsequent involvement of
the investigating officer in his case and that his conviction of
sodomy did not infringe on his liberty interest under the Due
Process Clause of the Fifth Amendment.
DISCUSSION
A. The Initial Investigation and Referral of Charges
Stirewalt served as the health services technician on the
USCGS SWEETGUM, a Coast Guard cutter under the command of
Lieutenant Commander Crawley. Stirewalt argues that Lieutenant
Commander Crawley's decision to request an Article 32
investigation of the allegations and his subsequent decision to
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United States v. Stirewalt, 03-0433/CG
recommend referral of the charges to a general court-martial
were improperly influenced by the Chief of Staff for the Eighth
Coast Guard District, Captain Prokop.
This contention was one of several claims of unlawful
command influence that were litigated before the military judge
at the rehearing and was addressed in the judge’s "Essential
Findings of Fact and Conclusions of Law." Where the issue of
unlawful command influence has been litigated on the record, we
review the military judge's findings of fact under a clearly
erroneous standard. United States v. Johnson, 54 M.J. 32, 34
(C.A.A.F. 2000). The question of command influence flowing from
those facts, however, is a question of law that we review de
novo. Id.
The military judge found that the initial allegations of
misconduct against Stirewalt were brought forward by three
crewmembers. Upon learning of the allegations, Lieutenant
Commander Crawley notified the Coast Guard Investigative Service
(CGIS). An agent from CGIS was dispatched to the SWEETGUM
within a day and had briefed Lieutenant Commander Crawley with
his preliminary results within the week. Lieutenant Commander
Crawley then contacted Captain Bohner, his immediate supervisor,
who in turn contacted his supervisor, Captain Gerfin, the Eighth
District Chief of Operations. These two officers ultimately
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United States v. Stirewalt, 03-0433/CG
briefed Captain Prokop, the Eighth Coast Guard District Chief of
Staff.
The military judge found that all four officers then
participated in two telephone conferences concerning the
allegations against Stirewalt. Lieutenant Commander Crawley
told the other officers that he had informed CGIS of the
allegations, that an investigation was ongoing and that he was
considering his options for handling the situation.
The military judge found that Captain Prokop "very clearly
and forcefully made his opinion known during the phone calls
that the allegations were too serious to go to captain's mast
and that they warranted an airing at an Article 32." He also
found, however, that Captain Gerfin made it clear to Lieutenant
Commander Crawley that the decision as to the disposition of the
case was his to make.
The factual basis for Stirewalt's claim is the military
judge's finding that Captain Prokop "very clearly and
forcefully" expressed his opinion concerning the seriousness of
the charges and the need for an Article 32 investigation. As
recognized by the military judge, the legal significance of that
statement must be assessed against the broader context in which
it occurred.
The statement was made during discussions that were
initiated by Lieutenant Commander Crawley, the subordinate
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United States v. Stirewalt, 03-0433/CG
commander. There is nothing inherently suspect about an officer
in Lieutenant Commander Crawley's position electing to consult
with his chain of command concerning potential investigative and
procedural options when faced with allegations of serious
misconduct. Without Captain Prokop's statement, Crawley’s
actions would not have been considered irregular.
Neither Lieutenant Commander Crawley nor Captain Prokop had
any specific recollection of the telephone conversation at
issue. The only clear recollection of either the phone
conversation or Captain Prokop’s comment came from Captain
Gerfin, an intermediate commander, who knew both Crawley and
Prokop. Captain Gerfin did not view Captain Prokop’s statement
as constituting any constraint on Lieutenant Commander Crawley’s
discretion and testified that Crawley was “obviously” the
decision maker in regard to the necessity of an Article 32
investigation.
The military judge recognized that Captain Prokop's
statement, "viewed in a void" could be seen as unlawful command
influence. That void was filled, however, with extensive fact-
finding regarding the context in which it was made and a
thorough legal analysis which resulted in the military judge’s
findings and conclusions that unlawful command influence had not
occurred. We do not view the military judge's findings of fact
on this issue as "clearly erroneous," nor do we view those facts
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United States v. Stirewalt, 03-0433/CG
as supporting a de novo conclusion on our part that unlawful
command influence flowed from those facts. Johnson, 54 M.J. at
34.
B. The Role of the Investigating Officer
Stirewalt asserts that he was prejudiced by the subsequent
involvement of the original investigating officer in his court-
martial rehearing process. As with the first issue, this claim
was litigated before the military judge at the rehearing and was
addressed in his "Essential Findings of Fact and Conclusions of
Law."
The facts underlying this claim are not disputed. After
Lieutenant Commander Crawley decided to proceed with an Article
32 investigation, the Eighth Coast Guard District identified
Commander Baumgartner as a prospective investigating officer.
Commander Baumgartner did not serve in the Eighth District and,
once identified, was properly appointed by Lieutenant Commander
Crawley. He subsequently presided over the Article 32 hearing
process, completed a report of the investigation and forwarded
it to Lieutenant Commander Crawley with a recommendation that
the matter proceed to a general court-martial.
Unfortunately that was not the end of Commander
Baumgartner's involvement in Stirewalt's court-martial. He was
subsequently transferred to the Eighth District legal office
and was serving as the acting staff judge advocate (SJA) when
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United States v. Stirewalt, 03-0433/CG
the Coast Guard Court of Criminal Appeals issued its initial
decision reversing portions of Stirewalt’s original conviction.
The military judge made the following findings of fact
concerning the nature of Commander Baumgartner’s subsequent
involvement in Stirewalt's case:
• He attended and participated in a meeting with the
Commander of the Eighth District where decisions were
made concerning the case. He was present at the
meeting because he, as the Article 32 investigating
officer, knew the facts of the case.
• He was the acting SJA when asked to provide an opinion
on whether the SJA should appeal the decision to CAAF.
• Several e-mails sent to and from Commander Baumgartner
indicate that he served as the Eighth District legal
office's point of contact for Stirewalt's case.
• He routinely held himself out as part of the Eighth
District legal team in matters pertaining to
Stirewalt's case by using the word "we."
• He supervised the assistant trial counsel and the law
clerk who worked on Stirewalt's case.
• He had been responsible for some of the logistics in
Stirewalt's case, including budget, assignment of
counsel and docketing matters.
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United States v. Stirewalt, 03-0433/CG
• He shared advice and information about the Stirewalt
case with the senior legal officer at the Eighth
District.
The military judge ultimately determined that "Commander
Baumgartner was not aggressive enough in his attempts to shield
himself from subsequent action on the same case that he served
as the IO." He went on to order that Commander Baumgartner take
no further action regarding the case and that he remove himself
from the rating chain for the assistant trial counsel.
While the Court of Criminal Appeals recognized that
Commander Baumgartner's actions "may constitute a departure from
the requirements of Article 6(c), UCMJ, and [Rule for Courts-
Martial 405 [R.C.M.]]," it found no prejudicial error. Based on
the record before us, we agree with the Court of Criminal
Appeals that Stirewalt has not established that he was
prejudiced by the subsequent involvement of Commander
Baumgartner.
There is no question that Commander Baumgartner's actions
violated R.C.M. 405(d)(1). That rule unambiguously states that
"[an] investigating officer is disqualified to act later in the
same case in any other capacity." A violation of R.C.M.
405(d)(1), however, must be measured for prejudice and since
Stirewalt has not established that he was prejudiced, he cannot
prevail on this issue. United States v. Holt, 52 M.J. 173, 183-
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United States v. Stirewalt, 03-0433/CG
84 (C.A.A.F. 1999)(actions of investigating officer inconsistent
with R.C.M. 405(d)(1) measured for prejudice).
The question as to whether Commander Baumgartner's actions
violated Article 6(c), UCMJ, is not quite as clear. That
provision states that no person who acts as a member, judge,
counsel or investigating officer "may later act as a staff judge
advocate or legal officer to any reviewing authority upon the
same case." Id. Stirewalt goes on to argue that prejudice can
be "presumed" in the case of an Article 6(c) violation and
relies on several older decisions from this Court. See, e.g.,
United States v. Jolliff, 22 C.M.A. 95, 46 C.M.R. 95
(1973)(Article 32 investigating officer involved in preparing
post-trial advice); United States v. Coulter, 3 C.M.A. 657, 659,
14 C.M.R. 75, 78 (1954)(trial counsel later serving as staff
judge advocate for post-trial review).
In order to prevail under Article 6(c) Stirewalt must
convince us that Article 6(c) is applicable to this factual
situation and further, that where an Article 6(c) violation has
been established, prejudice can be presumed.
As recognized by Stirewalt, this Court has not clearly
determined whether the term "reviewing authority" in Article
6(c) applies to the activities of a convening authority
throughout all stages of the court-martial process, or simply to
the latter stages of the process where the convening authority
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United States v. Stirewalt, 03-0433/CG
is engaged in "reviewing" the results of the court-martial. In
United States v. Dodge, 13 C.M.A. 525, 527 n.1, 33 C.M.R. 57, 59
n.1 (1963) we noted that the term "reviewing authority" was used
interchangeably with the term "convening authority" and assumed,
for purposes of that case, that Article 6(c) would prohibit an
investigating officer from subsequently acting as a staff judge
advocate in preparing a pretrial advice.
Just two weeks later, however, we characterized a similar
argument concerning the scope of the Article 6(c) prohibition as
"pure speculation." United States v. Smith, 13 C.M.A. 553, 558,
33 C.M.R. 85, 90 (1963). We later characterized Article 6(c) as
"on its face" applying to a staff judge advocate "acting for a
reviewing authority" and rejected an argument that its
application extended to a staff judge advocate preparing a
pretrial advice for "a referring authority." United States v.
Hardin, 7 M.J. 399, 403 n.3 (C.M.A. 1979).
We believe that the rationale in Hardin correctly reflects
the intent of Article 6(c). The plain language of the provision
states that it applies to a staff judge advocate acting for a
reviewing authority. All of the instances where we have found
violations of Article 6(c) involve subsequent actions for a
reviewing authority. See, e.g., United States v. Edwards, 45
M.J. 114, 116 (C.A.A.F. 1996); Jolliff, 22 C.M.A. 95, 46 C.M.R.
95; United States v. Marsh, 20 C.M.A. 42, 42 C.M.R. 234 (1970);
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United States v. Crunk, 4 C.M.A. 290, 15 C.M.R. 290 (1954);
Coulter, 3 C.M.A. 657, 14 C.M.R. 75.
When this matter was remanded, the options for the
convening authority were limited by the appellate court to
ordering a rehearing on findings and sentence, or a rehearing on
sentence alone. 53 M.J. at 592. The convening authority did
not have the option of reassessing the sentence or any option
which would trigger the type of "reviewing authority" functions
referenced in Article 6(c). By the very nature of the remand,
Commander Baumgartner's subsequent involvement was limited to
providing pre-trial advice rather than advice to a reviewing
authority.
While we can envision situations where a case has been
remanded to a convening authority with no such limitations,
which may trigger the consideration of “reviewing authority”
functions, that is not the situation here. As Commander
Baumgartner’s subsequent participation in this case did not
involve a “reviewing authority,” Article 6(c) is not applicable
to this factual situation and we need not address the issue as
to whether prejudice is presumed under Article 6(c).
C. Constitutionality of Sodomy Conviction
At his rehearing, Stirewalt entered a guilty plea and was
convicted of one specification of sodomy under Article 125,
UCMJ, 10 U.S.C. § 925 (2000). He now contends that his guilty
16
United States v. Stirewalt, 03-0433/CG
plea and conviction should be set aside in light of the United
States Supreme Court's decision in Lawrence v. Texas, 539 U.S.
558 (2003).
The specification that Stirewalt stands convicted under
originally alleged that he “did, at or near Mobile, Alabama, on
or about 8 December 1996, commit sodomy with [LTJG B], by force
and without the consent of [LTJG B].” He entered a guilty plea
to this specification, with the words “by force and without the
consent of [LTJG B]" excepted and withdrawn. The stipulation of
fact underlying his guilty plea indicates that
[o]n the late evening of 07 December 1996, HS2 Stirewalt
and [LTJG B] spoke by phone. Near midnight of that
evening, HS2 Stirewalt proceeded to her apartment complex .
. . . After knocking on the front door, HS2 Stirewalt was
allowed inside by [LTJG B], who at the time of entry, was
on the telephone with a fellow Coast Guard officer, LTJG
Heidi Rumazza. After entering the apartment, HS2 Stirewalt
spoke to Ms. Rumazza for approximately one minute before
handing the telephone back to [LTJG B]. [LTJG B] then hung
the phone up, sat down on a chair in her living room and
began conversing with HS2 Stirewalt. After approximately
20 minutes of conversation, [LTJG B] moved into her
bedroom. HS2 Stirewalt followed her into her bedroom. HS2
Stirewalt climbed into bed with [LTJG B] and the two
engaged in "sodomy."
We recently concluded in United States v. Marcum, 60 M.J.
198 (C.A.A.F. 2004), that constitutional challenges to Article
125 based on the Supreme Court’s decision in Lawrence must be
addressed on an as applied, case-by-case basis. We identified a
tripartite framework for addressing Lawrence challenges within
the military context:
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United States v. Stirewalt, 03-0433/CG
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?
Marcum, 60 M.J. at 206-07.
In regard to the first two prongs of this tripartite
framework, we will assume without deciding that Stirewalt’s
conduct falls within the liberty interest identified by the
Supreme Court and does not encompass behavior or factors outside
the Lawrence analysis. Stirewalt’s conduct, however, squarely
implicates the third prong of the framework. That question asks
whether there are “additional factors relevant solely in the
military environment,” not addressed by the Supreme Court, that
“affect the reach and nature of the Lawrence liberty interest”
in the context presented. Id. at 207. It is clear that such
factors exist here.
Stirewalt’s conduct with [LTJG B] was more than a personal
consensual relationship in the privacy of an off-base apartment.
At the time of this relationship, [LTJG B] was one of seven
officers on the USCGC SWEETGUM, a cutter with a crew of only 42.
The conduct in question occurred between a commissioned
department head and her subordinate enlisted crew member:
Romantic relationships between members are unacceptable
when: (1) Members have a supervisor and subordinate
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United States v. Stirewalt, 03-0433/CG
relationship . . ., or (2) Members are assigned to the same
small shore unit (less than 60 members), or (3) Members are
assigned to the same cutter . . . The nature of operations
and personnel interactions on cutters and small shore units
makes romantic relationships between members assigned to
such units the equivalent of relationships in the chain of
command and, therefore, unacceptable. This policy applies
regardless of rank, grade, or position.
Coast Guard Personnel Manual, para. 8.H.2.f. (change 26, 1988)
(Unacceptable Romantic Relationships).
“Coast Guard policy prohibits the following relationships
or conduct, regardless of rank, grade, or position of the
persons involved . . . Romantic relationships outside of
marriage between commissioned officers and enlisted personnel.”
Id. at para. 8.H.2.g. (Prohibited Relationships).
“Interpersonal relationships which raise even a perception of
unfairness undermine good leadership and military discipline.”
Id. at para. 8.H.1.c. (Leadership and Military Discipline).
In Marcum, we noted that due to concern for military
mission accomplishment, "servicemembers, as a general matter, do
not share the same autonomy as civilians." Marcum, 60 M.J. at
206. We consider Stirewalt's zone of autonomy and liberty
interest in light of the established Coast Guard regulations and
the clear military interests of discipline and order that they
reflect. Based on this analysis, we conclude that Stirewalt's
conduct fell outside any protected liberty interest recognized
in Lawrence and was appropriately regulated as a matter of
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United States v. Stirewalt, 03-0433/CG
military discipline under Article 125. The fact that Stirewalt
as the subordinate enlisted crew member was charged does not
alter the nature of the liberty interest at stake. As a result,
Article 125 is constitutional as applied in the present case.
DECISION
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
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CRAWFORD, Chief Judge (concurring in part and in the
result):
I agree with the result in this case but I “would reserve
for another day the questions of whether and how Lawrence [v.
Texas, 539 U.S. 558 (2003)] applies to the military.”1 Like
United States v. Marcum, “the factual differences between
Lawrence and Appellant’s case are striking” for the reasons
mentioned by the majority as well as the circumstances
surrounding the charges themselves.2 “Unlike the petitioners in
Lawrence, who were both charged with, and convicted of,
consensual sodomy without any evidence of force,” there was
“probable cause that Appellant committed the general offense
described in Article 125 with the added element of force,”3
notwithstanding the reversal of his first conviction. Thus,
this is not a case where there was no evidence of force
whatsoever. And as the majority notes, this case is one of the
exceptions to Lawrence.4
1
60 M.J. 198, 212 (C.A.A.F. 2004)(Crawford, C.J. (dissenting on
Issue I and concurring in the result on Issue III).
2
Id.
3
Id. at 214.
4
The present case does not “involve minors, it does not involve
persons who might be injured or coerced who are situated in
relationships where consent might not easily be refused.”
Lawrence, 539 U.S. at 578.
United States v. Stirewalt, No. 03-0433/CG
If the facts and circumstances of Appellant’s case fit into
one of the enumerated Lawrence exceptions, then it only
logically follows that it is not necessary even to assume that
the Lawrence constitutional analysis applies.
Thus, I concur in part and in the result.
2