concurring in part, dissenting in part:
I agree, with the principal opinion’s conclusions concerning Specification 2 of Charge I and the Specification of Charge II. However, I am not convinced beyond a reasonable doubt that the accused is guilty of pandering as is alleged in Specification 1 of Charge I. The testimony of the complaining witness, B E, on cross-examination convinces me that she was the moving party in the conversations with the accused concerning sexual relations and potential prostitution. It is apparent that she was interested in sexual relations with the accused and was extremely aggressive in pursuit of that goal. The statements of the accused, when considered in a vacuum, lend credence to the government’s allegations. When viewed against the background of B E’s testimony on cross-examination, the accused’s statements may best be characterized as “jive” talk that falls short of criminality.
*631I also wish to address the simplistic comment in my fellow judge’s concurring opinion that “[a] criminal activity continues to be criminal whether done in public or private.” It has long been settled law that the situs of an act may well determine its innocence or criminality. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); United States v. Caune, 22 U.S.C. M.A. 200, 46 C.M.R. 200 (1973). The principal opinion properly avoids a determination of whether heterosexual sodomy between consenting adults is protected by the constitutionally based right of privacy. A Base Exchange Snack Bar scarcely qualified as “private.”