UNITED STATES, Appellee

v.

Ivan D. GOINGS, Staff Sergeant

U.S. Army, Appellant

No. 11-0547

Crim. App. No. 20080602

United States Court of Appeals for the Armed Forces

Argued November 13, 2012

Decided May 23, 2013

RYAN, J., delivered the opinion of the Court, in which BAKER, 

C.J., ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed 

a separate dissenting opinion.

Counsel

For Appellant: Captain Kristin B. McGrory (argued); Lieutenant 

Colonel Jonathan F. Potter and Major Jacob D. Bashore (on

brief); Lieutenant Colonel Imogene M. Jamison and Lieutenant 

Colonel Peter Kageleiry Jr.

For Appellee: Captain Edward J. Whitford (argued); Lieutenant 

Colonel Amber J. Roach and Major Catherine L. Brantley (on 

brief); Major LaJohnne A. White and Captain Bradley M. Endicott.

Military Judge: Gregg Marchessault

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Goings, 11-0547/AR

2

Judge RYAN delivered the opinion of the Court.

Contrary to his pleas, a military judge sitting as a 

general court-martial convicted Appellant of one specification 

of rape, in violation of Article 120, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 920 (2006), and one specification of 

committing an indecent act with another, in violation of Article 

134, UCMJ, 10 U.S.C. § 934 (2006). The adjudged sentence 

provided for a dishonorable discharge, confinement for five 

years, forfeiture of all pay and allowances, and reduction to 

grade E-1. The convening authority disapproved the adjudged 

forfeitures but approved the remainder of the adjudged sentence, 

and waived the forfeiture of automatic pay and allowances for 

six months.

Before the United States Army Court of Criminal Appeals 

(ACCA), Appellant argued for the first time that his conviction 

for committing an indecent act with another under Article 134, 

UCMJ, Specification 6 of Charge II (Specification 6), should be 

set aside in light of the Supreme Court’s holding in Lawrence v. 

Texas, 539 U.S. 558 (2003).1 Appellant, however, fails to meet 

 1 We granted review of the following issues:

I. WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO 

THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.

II. WHETHER SPECIFICATION 6 OF CHARGE II FAILS TO STATE AN 

OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR 

NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, 

UCMJ.
United States v. Goings, 11-0547/AR

3

his burden of showing that the military judge erred, let alone 

plainly and obviously erred, in allowing the conduct described 

in Specification 6 to serve as the basis for his indecent act 

conviction under Article 134, UCMJ.

Moreover, while the ACCA misapplied United States v.

Fosler, 70 M.J. 225 (C.A.A.F. 2011), in its consideration of the 

Government’s failure to allege the terminal element of Article 

134, UCMJ, in the contested specification, review of the record 

reveals that Appellant was not prejudiced by this error. See

United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).

Accordingly, the conviction and sentence are affirmed.

I. FACTS

On August 2, 2007, German police searched Appellant’s offpost apartment pursuant to a search warrant to investigate 

claims of sexual assault. During the search, the police seized, 

among other items, a video camera and several 8-millimeter video 

recordings. One of the recordings depicts Appellant and an 

unidentified female engaged in consensual sexual activity, 

including intercourse, in his off-post apartment. The recording 

was made by an unidentified male who filmed the sexual activity 

while in the presence of Appellant and the unidentified female. 

While the recording further shows the unidentified male 

 

United States v. Goings, 71 M.J. 334 (C.A.A.F. 2012) (order 

granting review).
United States v. Goings, 11-0547/AR

4

physically participating in the sexual activity, this 

participation did not form the basis of the specification at 

issue. At trial, the Government conceded that the participants 

were aware that they were being recorded and that the sexual 

activity was consensual.

Based on this conduct, the Government charged Appellant 

with, among other offenses, committing an indecent act with 

another, in violation of Article 134, UCMJ. The specification 

relating to this charge, Specification 6, reads:

In that SSG Ivan D. Goings . . . did . . . wrongfully 

commit an indecent act with another male and a female 

by allowing the other male to be present and video 

record on a video cassette tape the said SSG Ivan D. 

Goings engaging in sexual intercourse with the female.

Specification 6 did not allege the terminal element of 

Article 134, UCMJ. However, the Government argued that the 

evidence was prejudicial to good order and discipline in its 

opening statement, and presented evidence, during its case-inchief, as to why the indecent act with another was both 

prejudicial to good order and discipline and service 

discrediting. Appellant, in turn, defended against 

Specification 6 on the ground that neither clause 1 nor clause 2 

of the terminal element had been met, during both his crossexamination of Government witnesses and closing argument. At no 

time during trial did Appellant raise the argument that he was 

not guilty because his conduct was constitutionally protected. 
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5

Instead, his defense was that his conduct was neither 

prejudicial to good order and discipline nor service 

discrediting.

II. ACCA DECISION

The ACCA summarily rejected Appellant’s Lawrence claim 

without discussion and held that the court-martial’s findings 

and sentence, as approved, were correct in law and fact. United 

States v. Goings, No. ARMY 20080602 (A. Ct. Crim. App. May 5, 

2011). On October 14, 2011, this Court vacated the ACCA’s 

decision and ordered the case remanded to that court for 

consideration in light of United States v. Fosler, 70 M.J. 225 

(C.A.A.F. 2011). United States v. Goings, 70 M.J. 376 (C.A.A.F. 

2011) (order granting review and summarily vacating the lower 

court’s decision). Upon reconsideration, the ACCA again held 

that the findings and sentence, as approved, were correct in law 

and fact. United States v. Goings, No. ARMY 20080602 (A. Ct. 

Crim. App. Feb. 7, 2012). Specifically, the ACCA found that 

Specification 6 “can be reasonably construed to imply” the 

terminal element of that charge. Id. at 2 n.2.

III. DISCUSSION

A.

Appellant was convicted of indecent acts with another, in 

violation of Article 134, UCMJ. This offense consists of three 

elements: (1) “[t]hat the accused committed a certain wrongful 
United States v. Goings, 11-0547/AR

6

act with a certain person; (2) [t]hat the act was indecent; and 

(3) [t]hat . . . the conduct . . . was to the prejudice of good 

order and discipline . . . or was of a nature to bring discredit 

upon the armed forces.” Manual for Courts-Martial, United 

States pt. IV, para. 90.b. (2005 ed.) (MCM).2 Indecent is 

defined as “that form of immorality relating to sexual impurity 

which is not only grossly vulgar, obscene, and repugnant to 

common propriety, but tends to excite lust and deprave the 

morals with respect to sexual relations.” MCM pt. IV, para. 

90.c. As further limited by this Court’s decisions in United 

States v. Snyder, 1 C.M.A. 423, 4 C.M.R. 15 (1952), and United 

States v. Berry, 6 C.M.A. 609, 20 C.M.R. 325 (1956), private 

consensual sexual activity is not punishable as an indecent act 

absent aggravating circumstances. Snyder, 1 C.M.A. at 427, 4 

C.M.R. at 19; Berry, 6 C.M.A. at 614, 20 C.M.R. at 330. One 

such aggravating circumstance is that the sexual activity is 

“open and notorious,” which includes when the participants know 

that someone else is present. United States v. Izquierdo, 51 

 2 The videotaping occurred “prior to October 1, 2007, the 

effective date of the amendments to the UCMJ and [MCM] made by 

the National Defense Authorization Act for Fiscal Year 2006, 

Pub. L. No. 109–163, § 552, 119 Stat. 3136, 3256–63 (2006), so 

[the offense was] properly charged under Article 134, UCMJ. See

MCM, Punitive Articles Applicable to Sexual Assault Offenses 

Committed Prior to 1 October 2007 app. 27 at A27–2 (2008 ed.).” 

United States v. Rose, 71 M.J. 138, 140 n.3 (C.A.A.F. 2012).
United States v. Goings, 11-0547/AR

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M.J. 421, 422 (C.A.A.F. 1999); Berry, 6 C.M.A. at 614, 20 C.M.R. 

at 330.

Appellant does not dispute that the offense of indecent 

acts with another, as proscribed under Article 134, UCMJ, and as 

limited by this Court’s precedent, is facially constitutional. 

Instead, he appears to argue that the statute is 

unconstitutional as applied to him, Brief for Appellant at 12-

18, United States v. Goings (C.A.A.F. July 20, 2012) (No. 11-

0547), despite failing to object at trial on this ground.3 Since 

the error Appellant now alleges is constitutional, and in light 

of this Court’s (1) “presumption against the waiver of 

constitutional rights” and (2) requirement that a waiver 

“clearly establish[] . . . an intentional relinquishment of a 

known right or privilege,” United States v. Sweeney, 70 M.J. 

296, 303-04 (C.A.A.F. 2011) (quoting United States v. Harcrow, 

66 M.J. 154, 157 (C.A.A.F. 2008)), we consider the alleged error

 3 From start to finish, the contested issue in the case was 

whether Appellant’s conduct met the terminal element of Article 

134, UCMJ. Appellant argued that his conduct was insufficient 

to meet the terminal element, in part, because, in his view, his

conduct would be constitutionally protected in a non-military 

setting. The trier of fact disagreed, and the ACCA concluded 

that the evidence was legally sufficient. Goings, No. ARMY

20080602, slip op. at 1. What amounts to an argument that the 

Government has not put forth legally sufficient evidence to 

support an Article 134, UCMJ, conviction is fundamentally 

different from a constitutional argument that, in the military

context, Appellant’s conduct is protected.
United States v. Goings, 11-0547/AR

8

forfeited, and not waived. We therefore review for plain error. 

Id. at 304.4

B.

We review whether a statute is unconstitutional as applied 

de novo. United States v. Ali, 71 M.J. 256, 265 (C.A.A.F. 

2012). To determine if “a statute is ‘unconstitutional as 

applied,’ we conduct a fact-specific inquiry.” Id. Upon plain 

error review, to prove that Article 134, UCMJ -- a facially 

constitutional criminal statute -- is unconstitutional as 

applied to him, Appellant must point to particular facts in the 

record that plainly demonstrate why his interests should 

overcome Congress’ and the President’s determinations that his 

conduct be proscribed. See United States v. Vazquez, 72 M.J. 

13, 16-21 (C.A.A.F. 2013); Ali, 71 M.J. at 266. Appellant fails 

to meet this burden.

There is no question that Appellant’s rights as a member of 

the military are not coextensive with those enjoyed by 

civilians. See Parker v. Levy, 417 U.S. 733, 758 (1974) 

(upholding the constitutionality of Article 134, UCMJ, and 

observing that “[t]he fundamental necessity for obedience, and 

the consequent necessity for imposition of discipline, may 

 4 “Under plain error review, this Court will grant relief only 

where (1) there was error, (2) the error was plain and obvious, 

and (3) the error materially prejudiced a substantial right of 

the accused.” Sweeney, 70 M.J. at 304.
United States v. Goings, 11-0547/AR

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render permissible within the military that which would be 

constitutionally impermissible outside it”). And no one asserts 

that the interest recognized in Lawrence is somehow exempt from 

adaptation to the military environment. See United States v. 

Marcum, 60 M.J. 198, 207 (C.A.A.F. 2004) (in the context of an 

as-applied challenge under Lawrence, requiring consideration of 

whether there are “additional factors relevant solely in the 

military environment that affect the nature and reach of the 

Lawrence liberty interest”). Consonant with his authority to 

act as commander-in-chief and his duty to “take care that the 

laws be faithfully executed,” U.S. Const. art. II, §§ 2-3, the 

President has listed indecent acts with another as a “way[] in 

which Article 134, UCMJ, might be charged,” United States v. 

Jones, 68 M.J. 465, 472 (2010). See also United States v. 

Miller, 47 M.J. 352, 356 (C.A.A.F. 1997); United States v. 

Gonzalez, 42 M.J. 469, 474 (C.A.A.F. 1995). The commission of 

sexual acts in the presence of a third party has been held to be 

sufficiently “open and notorious” to constitute an indecent act, 

punishable under Article 134, UCMJ, see Izquierdo, 51 M.J. at

422-23 (C.A.A.F. 1999) (“[An] act is ‘open and 

notorious’ . . . when the participants know that a third person 

is present.” (citing Berry, 6 C.M.A. at 614, 20 C.M.R. at 330)), 

and we do not doubt that permitting the filming of those same 

acts is also sufficient. Cf. United States v. Cohen, 63 M.J. 
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45, 53 (C.A.A.F. 2006) (holding that Article 31(b) rights 

warnings were required when the appellant described his role in 

photographing a sexual assault).5 Congress’ and the President’s 

determination to proscribe such acts that are “to the prejudice 

of good order and discipline” or “of a nature to bring discredit 

upon the armed forces,” Article 134, UCMJ; MCM, pt. IV, para. 

90.b. (2005 ed.), no doubt furthers the military’s unique 

interest in obedience and discipline, see Levy, 417 U.S. at 758, 

which Marcum recognized as affecting the nature and reach of 

Lawrence. See Marcum, 60 M.J. at 206-07.

Here, Appellant was convicted of “allowing [a third party] 

to be present and video record on a video cassette tape 

[Appellant] engaging in sexual intercourse with [a] female,” and 

legally sufficient evidence was adduced at trial that this

 5 Additionally, that Appellant’s conviction is supported by 

legally sufficient evidence is particularly true in light of the 

low evidentiary threshold that this Court has applied to Article 

134, UCMJ’s terminal element. See United States v. Phillips, 70 

M.J. 161, 163 (C.A.A.F. 2011) (“evidence that the public was 

actually aware of the conduct is not necessarily required” to 

support clause 2 of Article 134, UCMJ’s, terminal element); 

United States v. Irvin, 60 M.J. 23, 26 (C.A.A.F. 2004) (finding 

a sufficient factual basis to support clause 1 and clause 2 of 

Article 134, UCMJ’s, terminal element despite no evidence that 

any other servicemembers were aware of, or saw, the child 

pornography). To the extent we should revisit the question 

whether a more exacting standard of proof should be required to 

support the terminal elements of Article 134, UCMJ, we leave 

that issue for a case in which it is properly raised and 

briefed. See, e.g., United States v. Wilcox, 66 M.J. 442, 448-

49 (C.A.A.F. 2008) (requiring a more exacting standard in the 

context of the First Amendment).
United States v. Goings, 11-0547/AR

11

conduct was prejudicial to good order and discipline and service 

discrediting. No one disagrees that wholly private and 

consensual sexual activity, without more, falls within Lawrence. 

But that does not answer the altogether different question 

whether permitting a third party to observe and memorialize 

one’s sexual activity on videotape is categorically protected as 

“wholly private and consensual sexual activity” where the trier 

of fact has deemed the conduct to be prejudicial to good order 

and discipline in the armed forces and service discrediting. We 

hold that, under the circumstances of this case, it is not.

In Lawrence, the focal point of the constitutional 

protection involved an act of sexual intimacy between two 

individuals in a wholly private setting without more. Lawrence, 

539 U.S. at 562-63. Lawrence did not establish a presumptive 

constitutional protection for all offenses arising in the 

context of sexual activity. See Lawrence, 539 U.S. at 578 

(noting that “[t]he present case d[id] not involve

minors[,] . . . persons who might be injured or coerced or who 

are situated in relationships where consent might not easily be 

refused[,] . . . public conduct[,] or prostitution); Marcum, 60 

M.J. at 206–07 (recognizing that consideration of military 

interests affect the nature and reach of Lawrence); United 

States v. Lebowitz, 676 F.3d 1000, 1012 n.5 (11th Cir. 2012) 

(holding Lawrence “immaterial” to its analysis because “[e]ven 
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if Lawrence protected the sexual conduct depicted on the video 

tape, . . . the depictions . . . traveled across state lines by 

means of computer” and became “publicly traded contraband”). 

When the conduct being charged does not fall directly within the 

focal point of Lawrence -- sexual conduct between two 

individuals in a wholly private setting that was criminal for no 

other reason than the act of the sexual conduct itself –- and

where, as here, the predicate sexual conduct is criminal because 

of some additional factor (in this case, the violation of 

clauses 1 and 2 of Article 134, UCMJ), the burden of

demonstrating that such conduct should nonetheless be 

constitutionally protected rests with the defense at trial. See

Vazquez, 72 M.J. at 16-21; Ali, 71 M.J. at 266. Put another 

way, to show that a facially constitutional statute is 

unconstitutional as applied to a particular individual, the 

individual must develop facts at trial that show why his

interest should overcome the determination of Congress and the 

President that the conduct be proscribed. See Vazquez, 72 M.J. 

at 16-21; Ali, 71 M.J. at 266. Here, the defense did not raise 

such an issue at trial or develop such facts in a motion 

proceeding. In that context, the military judge did not commit 

error, let alone plain and obvious error, in failing to sua

sponte raise a Lawrence issue.
United States v. Goings, 11-0547/AR

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C.

We now turn to the question whether Specification 6 fails 

to state an offense because it does not allege the terminal 

element of Article 134, UCMJ. As we held in Fosler, a contested 

case involving an Article 134, UCMJ, offense, the terminal 

element must be pleaded or fairly implied, and the allegation of 

the act itself is insufficient to support a fair implication of 

the terminal element. Fosler, 70 M.J. at 229-31. Yet the ACCA, 

on remand for consideration of the issue in light of Fosler, 

determined that the error did not prejudice Appellant because 

“the charge and its specification can be reasonably construed to 

imply [the terminal element].” Goings, No. ARMY 20080602, slip 

op. at 2 n.2. After examining Specification 6, it is clear that 

Fosler foreclosed the line of reasoning upon which the ACCA 

based its determination. Article 134, UCMJ, has two elements: 

(1) a predicate act or failure to act, and (2) a terminal 

element. United States v. Medina, 66 M.J. 21, 25 (C.A.A.F. 

2008). The terminal element of an Article 134, UCMJ, offense 

may not be “fairly implied” from nothing more than the language 

describing the alleged act or failure to act itself.6

 Fosler, 70 

M.J. at 230-31.

 6 Moreover, the inclusion of the word “wrongfully” in 

Specification 6 “cannot of itself imply the terminal element.” 

Fosler, 70 M.J. at 230.
United States v. Goings, 11-0547/AR

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This, however, does not end the inquiry as Appellant, 

unlike the accused in Fosler, failed to object to the 

specification on this ground at trial. See Humphries, 71 M.J. 

at 213. Because Appellant’s trial occurred before this Court’s 

decision in Fosler, we deem his failure to object as forfeiting, 

rather than waiving, the underlying right and apply plain error 

analysis. Id. at 211, 213.

Here, it was plain and obvious error for the Government not 

to allege the terminal element. Id. at 211, 214. “Having found 

plain and obvious error that was forfeited rather than waived, 

the remaining question is ‘whether there is a remedy for the 

error,’ which ‘will depend on whether the error has prejudiced 

the substantial rights of the accused.’” Id. at 215 (quoting 

United States v. Ballan, 71 M.J. 28, 30 (C.A.A.F. 2012)). In 

the context of a defective specification, the prejudice analysis 

“demand[s] close review of the trial record.” Humphries, 71 

M.J. at 215. “[W]e look to the record to determine whether 

notice of the missing element is somewhere extant in the trial 

record, or whether the element is ‘essentially uncontroverted.’” 

Id. at 215-16 (quoting United States v. Cotton, 535 U.S. 625, 

633 (2002), and Johnson v. United States, 520 U.S. 461, 470 

(1997)).

While up to this point we have left Humphries’ factintensive prejudice analysis to the Courts of Criminal Appeals 
United States v. Goings, 11-0547/AR

15

(CCAs), and despite the fact that we would ordinarily return the 

record of trial in this case to the Judge Advocate General of 

the Army for remand to the ACCA for consideration in light of 

Humphries, we undertake it here for two reasons. First, in 

order to resolve Issue I, this Court had to conduct a factintensive analysis of the record to determine whether the 

military judge’s failure to raise a Lawrence issue was plain and 

obvious error. Second, it appears that there is some 

misperception that, under Humphries, a conclusion that the 

government’s error in failing to allege the terminal element was 

nonprejudicial may be based on the same flawed logic that we 

rejected in Fosler and Humphries. See United States v. Allbery, 

44 M.J. 226, 228 (C.A.A.F. 1996).

Finding sufficient notice of the terminal element -- and 

thus no prejudice –- on such bases as: (1) witness testimony 

describing the act or failure to act that meets Article 134, 

UCMJ’s, first element; (2) the government’s identification of 

its theory of criminality during its closing argument; (3) 

evidence of defense counsel’s general awareness of the terminal 

element; or (4) findings instructions that require the panel to 

find the terminal element beyond a reasonable doubt in order to 

convict, without more, is error under both Fosler and Humphries. 

That: (1) the evidence was legally sufficient to prove the 

terminal element; (2) defense counsel demonstrated a general 
United States v. Goings, 11-0547/AR

16

knowledge of the law, and (3) the government’s theory of 

criminal liability was introduced during closing or through 

findings instructions do not answer the altogether different 

question whether the record sufficiently demonstrates that an 

accused was on notice as to which clause or clauses of the 

terminal element he needed to defend against. Humphries, 71 

M.J. at 216 n.8. It is this latter question that determines

whether an appellant was prejudiced.

In Humphries, we found prejudice where “[n]either the 

specification nor the record provide[d] notice of which terminal 

element or theory of criminality the Government pursued in 

th[at] case.” Id. at 216.7 Here, however, we find no prejudice 

because the record clearly demonstrates that Appellant (1) was 

put on notice that the Government intended to prove that his 

conduct was both prejudicial to good order and discipline and 

service discrediting and (2) defended himself against those 

theories of guilt.

In its opening statement, the Government stated that it 

would call First Sergeant (Sgt) Perkins, who would 

 7 We noted that the government failed to (1) mention in its 

opening statement “how [a]ppellee’s conduct satisfied either 

clause 1 or 2 of the terminal element,” (2) “present any 

specific evidence or call a single witness to testify as to why 

[a]ppellee’s conduct satisfied” the terminal element, or (3) 

make any “attempt to tie any of the evidence or witnesses that 

it did call to the Article 134, UCMJ,” charge. Id.
United States v. Goings, 11-0547/AR

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“testify . . . that these videos and these actions are 

prejudicial to good order and discipline.” During its case-inchief, the Government presented the testimony of First Sgt 

Perkins, who testified that Appellant’s conduct portrayed in the 

videotape was prejudicial to good order and discipline. On 

cross-examination, defense counsel challenged this testimony. 

On redirect examination, First Sgt Perkins then testified as to 

why the conduct was service discrediting. Again, this testimony 

was challenged by defense counsel on recross-examination.

Next, the Government presented the testimony of Sergeant 

First Class (SFC) Olivarez, who testified that Appellant’s 

conduct was both prejudicial to good order and discipline and 

service discrediting. Defense counsel again challenged this 

testimony on cross-examination.

During closing argument, Appellant summed up his vigorous 

defense against the terminal element of Article 134, UCMJ, 

arguing that the evidence was legally insufficient to prove the 

charged offense because there was no evidence that the 

unidentified male and female in the recording knew that 

Appellant was a servicemember, and, therefore, the conduct could 

not (1) “bring[] a bad light on the military,” or (2) “be bad 

[for] the unit” or undermine Appellant. Defense counsel argued 

that the Government failed in its attempt to prove the terminal 
United States v. Goings, 11-0547/AR

18

element through the testimony of First Sgt Perkins and SFC 

Olivarez.

The evidence, as contained in the trial record, 

demonstrates that Appellant was not only provided “notice of 

which terminal element or theory of criminality the Government 

pursued in this case,” Humphries, 71 M.J. at 216, but vigorously 

defended against it.

IV. DECISION

The decision of the United States Army Court of Criminal 

Appeals is affirmed.
United States v. Goings, No. 11-0547/AR

STUCKY, Judge (dissenting):

We granted review in this case to determine whether 

Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. 

Marcum, 60 M.J. 198 (C.A.A.F. 2004), extend a zone of privacy to 

the indecent act of which Appellant was convicted, and whether 

the same indecent act specification fails to state an offense 

because it does not expressly allege or necessarily imply the 

terminal element of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2006). In my opinion, the 

record shows that Appellant’s conduct falls within Lawrence’s

privacy interest, and that none of the factors listed in 

Lawrence or the military-specific factors suggested in Marcum

disturb this privacy interest. I believe Appellant has carried 

his burden to establish plain error, and would hold that the 

conduct forming the basis of his conviction is constitutionally 

protected. Therefore, I need not reach the second issue.1

I.

Appellant’s off-post home in Germany was searched pursuant 

to a German search warrant issued on unrelated charges. German 

police seized a camcorder and several video cassettes containing 

depictions of adults engaged in sexual activity from Appellant’s 

 

1 If it were otherwise, I would agree with the majority that 

Appellant was not prejudiced by the failure to allege the 

terminal element.
United States v. Goings, No. 11-0547/AR

2

home. Appellant was not charged for many of the videos 

depicting sexual conduct between Appellant and various females.2

Based upon two of the videos, Appellant was charged with 

four specifications (Charge II, Specifications 4–7) of indecent 

acts in violation of Article 134, UCMJ. Specifications 4–6 

involved a video wherein Appellant and an unidentified man took 

turns filming each other engaging in consensual sexual activity 

with an unidentified female.3 Specification 7 involved a 

separate video wherein Appellant and a female German civilian 

 

2 The Government attempted to introduce some of the uncharged 

videos as Rule for Courts-Martial (R.C.M.) 404(b) motive or 

intent evidence of Appellant’s desire to film “lustful acts” to 

support Specifications 4–6. The military judge did not admit 

the videos as R.C.M. 404(b) evidence.

3 SPECIFICATION 4: In that [Appellant], did, at or near 

Leimen, Germany, between on or about 5 February 2003 and 1 

February 2006, wrongfully commit an indecent act with 

another male and a female by being present, observing and 

video recording on a video cassette tape the other male 

and female engaging in sexual intercourse.

SPECIFICATION 5: In that [Appellant], did, at or near 

Leimen, Germany, between on or about 5 February 2003 and 1 

February 2006, wrongfully commit an indecent act with 

another male and a female by being present, observing and 

video recording on a video cassette tape the other male 

and female engaging in sexual intercourse.

SPECIFICATION 6: In that [Appellant], did, at or near 

Leimen, Germany, between on or about 5 February 2003 and 1 

February 2006, wrongfully commit an indecent act with 

another male and a female by allowing the other male to be 

present and video record on a video cassette tape the said 

[Appellant] engaging in sexual intercourse with the 

female.
United States v. Goings, No. 11-0547/AR

3

engaged in sexual conduct.4 Before trial, upon defense counsel’s 

motion, the military judge severed and dismissed Specification 

7. The military judge acquitted Appellant of Specifications 4 

and 5, but convicted him of the specification at issue in this 

appeal -- Specification 6.

II.

Although Appellant’s main theory at trial was that his 

conduct was neither prejudicial to good order and discipline nor 

service discrediting, he did refer to his conduct as 

“constitutionally protected activity” more than once.5 However, 

I agree with the majority that plain error review is appropriate 

in this case as Appellant did not make a specific objection on 

Lawrence or Marcum grounds such that he clearly preserved the 

issue. I disagree with the majority’s interpretation of 

Lawrence, and the conclusion that Appellant has not carried his 

burden to establish plain error. Appellant has pointed to 

 

4 SPECIFICATION 7: In that [Appellant], did, at or near 

Heidelberg, Germany, on or about 1 July 2007, wrongfully commit 

an indecent act with P.B. by video recording on a video cassette 

tape the naked genital area of P.B.

5 At trial, Appellant referenced the protected status of his 

conduct in the civilian world, stating that “sexual intercourse 

in the presence of another person is not a crime outside of the 

military.” Defense counsel also asked a witness “how is 

allowing yourself to be videotaped by a third party while you 

are having a [sic] constitutionally protected activity” 

prejudicial to good order and discipline?
United States v. Goings, No. 11-0547/AR

4

particular facts in the record indicating that his conduct is 

constitutionally protected under Lawrence and Marcum.

A.

In Lawrence, the Supreme Court addressed the validity of a 

Texas anti-sodomy statute that made it a crime for “two persons 

of the same sex to engage in certain intimate sexual conduct.” 

539 U.S. at 562. Citing earlier privacy precedents like 

Griswold v. Connecticut, 381 U.S. 479 (1965); Carey v. 

Population Servs. Int’l, 431 U.S. 678 (1977); and Planned 

Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), Justice 

Kennedy, speaking for the Court, reaffirmed the idea that there 

is a liberty interest protected by the Due Process Clause of the 

Fourteenth Amendment. Lawrence, 539 U.S. at 564–78. The Court 

held that this liberty interest did, in fact, protect privacy 

rights involving “the most private human conduct, sexual 

behavior, and in the most private of places, the home.” Id. at 

567. The Court suggested some limits on this liberty interest, 

noting that Lawrence did not involve minors, persons who might 

be injured or coerced, persons situated in a relationship where 

consent might not easily be refused, public conduct, or

prostitution. Id. at 578.

Recognizing that constitutional rights may apply 

differently to members of the armed forces, Parker v. Levy, 417 

U.S. 733, 759 (1974); see also United States v. Barberi, 71 M.J. 
United States v. Goings, No. 11-0547/AR

5

127, 131 (C.A.A.F. 2012), this Court modified the constitutional 

protections outlined in Lawrence. Marcum, 60 M.J. at 208. In 

Marcum, the appellant was convicted of non-forcible sodomy with 

a subordinate. 60 M.J. at 200. This Court held that despite

Lawrence, Article 125, UCMJ, was constitutional as applied to 

Marcum. Id. at 205. To reach that conclusion, this Court 

applied a three-part test for addressing the application of 

Lawrence in the military context:

1. Was the conduct of a nature to bring it within the

 liberty interest identified by the Supreme Court?

 2. Did the conduct encompass any behavior or factors

 identified by the Supreme Court as an exception to

 the liberty interest?

3. Are there additional military factors that affect

 the nature and reach of the Lawrence liberty

 interest?

Id. at 206–07. This Court found that Marcum’s conduct was of a 

nature to bring it within the Lawrence liberty interest because 

it involved private, consensual sexual activity between adults, 

but held that an applicable Air Force instruction and the nature 

of superior-subordinate relationships took his conduct outside 

of the Lawrence liberty interest. Id. at 207–08. Because a 

subordinate within the appellant’s chain of command is a person 

“‘who might be coerced’” or is “‘situated in [a] relationship[]

where consent might not easily be refused,’” this Court decided 

the case on the second part of the test and did not discuss what
United States v. Goings, No. 11-0547/AR

6

the additional military factors contemplated in part three might 

entail. Id. at 208 (alteration in original) (quoting Lawrence, 

539 U.S. at 578).

B.

As a threshold matter, I agree that Appellant’s rights as a 

military member are not coextensive with those enjoyed by 

civilians. Parker, 417 U.S. at 758–59; Marcum, 60 M.J. at 205.

Furthermore, I agree that Lawrence does not protect all sexual 

conduct, but the majority mischaracterizes the reach of

Lawrence. Contrary to what the majority suggests, Lawrence does

not turn on interpretations of “indecency,” the type of sexual 

activity adults decide to engage in, or the presence of only two 

consenting adults. United States v. Goings, ___ M.J. ___ (9–12)

(C.A.A.F. 2013).

Rather, as evidenced throughout the opinion, Lawrence

turned on the freedom of adults to engage in “private conduct in 

the exercise of their liberty under the Due Process Clause,” 

“the right to make certain decisions regarding sexual 

conduct . . . beyond the marital relationship,” and the 

“emerging awareness that liberty gives substantial protection to 

adult persons in deciding how to conduct their private lives in 

matters pertaining to sex.” Lawrence, 539 U.S. at 564, 565,

572.
United States v. Goings, No. 11-0547/AR

7

The majority relies on pre-Lawrence and Marcum

determinations of what constitutes “indecent” conduct and what 

can be considered prejudicial to good order and discipline or 

service discrediting conduct to: (1) find that the military 

judge correctly found that the facts were legally sufficient to 

uphold a conviction for indecent acts; and (2) hold that “the 

military judge did not commit error, let alone plain and obvious 

error, in failing to sua sponte raise a Lawrence issue.”

Goings, ___ M.J. at ___ (11–12). However, whether the facts are 

legally sufficient to sustain a conviction, whether the military 

judge failed to sua sponte raise a Lawrence issue, or whether 

Congress and the President may proscribe certain types of 

indecent conduct are not the issues before this Court. We are 

tasked with determining, de novo, whether Appellant has carried 

his burden to establish that Lawrence extends a zone of 

protection to his conduct -- regardless of whether the Manual

for Courts-Martial, United States (MCM) considers it indecent.

Therefore, it is necessary to consider what is required to 

establish plain error, and the effect of Lawrence on what may 

have previously been considered constitutional legislation and 

judicial precedents.

III.

Under a plain error analysis, this Court has held that the 

“Appellant has the burden of demonstrating that: (1) there was 
United States v. Goings, No. 11-0547/AR

8

error; (2) the error was plain or obvious; and (3) the error 

materially prejudiced a substantial right of the accused.” 

United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)

(citation and internal quotation marks omitted).6 Under Lawrence

and Marcum, which were both decided before Appellant’s courtmartial, to establish error all Appellant must show is that his 

conduct was: (1) private consensual sexual activity between 

adults, (2) that does not fall outside of the Lawrence liberty 

interest, and (3) is not affected by additional military 

factors. Lawrence, 539 U.S. at 578; Marcum, 60 M.J. at 206–07. 

If Appellant establishes that his conduct is protected, that 

nothing takes it outside of the liberty interest, and that no 

unique military factors affect the liberty interest, then 

Appellant has established that he was convicted of 

constitutionally protected conduct which is plain and obvious 

 

6 The Supreme Court’s plain error doctrine contains a fourth 

prong -- “if the above three prongs are satisfied, the court of 

appeals has the discretion to remedy the error -- discretion 

which ought to be exercised only if the error seriously 

affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Puckett v. United States, 556 U.S. 129, 

135 (2009) (alteration in original) (citation and internal 

quotation marks omitted). I have long maintained that this 

Court should apply the fourth prong in line with the Supreme 

Court’s plain error analysis. See United States v. Humphries, 

71 M.J. 209, 221 (C.A.A.F. 2012) (Stucky, J., dissenting); 

United States v. Tunstall, ___ M.J. ___ (2) (C.A.A.F. 2013) 

(Stucky, J., concurring in part and in the result). However, 

applying the fourth prong to this case would not change the 

outcome as a conviction for constitutionally protected conduct 

is both prejudicial and clearly affects the fairness and 

integrity of judicial proceedings.
United States v. Goings, No. 11-0547/AR

9

error that materially prejudices his substantial rights.

Article 59(a), Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 859(a) (2006); see also United States v. Knowles, 29 

F.3d 947, 951 (5th Cir. 1994) (“basing a conviction on an 

unconstitutional statute is both ‘plain’ and ‘error’”).

A.

The video at issue depicts private consensual sexual 

activity between adults. The Government did not allege that the 

individuals in the video were minors, and it is apparent from 

the video that they were not. The Government also conceded that 

there was no evidence of coercion or lack of consent, and that 

the video shows that the participants consented to the activity.

The acts were also “private” under the Supreme Court’s 

conception of privacy under the Fourteenth Amendment.7 Lawrence

contemplates that the term “private” encompasses: (1) the 

location of the acts; and (2) the personal decisions that each 

consenting adult makes regarding his own sexual conduct.8

 

7 The Fourteenth Amendment’s zone of “privacy” is the basis for 

the liberty interest and is distinct from “public conduct” that 

falls outside of the Lawrence liberty interest. Lawrence, 539 

U.S. at 578. For example, Fourteenth Amendment “privacy” 

protects an individual’s right to engage in consensual sexual 

activity in his home, but, under Lawrence, the same activity is 

not protected in a public park because it would be “public 

conduct.” Whether Appellant’s conduct can be considered “public 

conduct” is discussed below.

8 This conception is echoed in other Supreme Court privacy 

precedent. See, e.g., Griswold, 381 U.S. at 484–85 (discussing 
United States v. Goings, No. 11-0547/AR

10

Lawrence, 539 U.S. at 567 (“the most private human conduct, 

sexual behavior . . . in the most private of places, the 

home. . . . adults may choose to enter upon this relationship in 

the confines of their homes and their own private lives”). The 

record establishes that the video was filmed consensually, by 

adults, in a private place -- Appellant’s home. I would hold 

that Appellant’s acts are of a nature to bring them under the 

Lawrence liberty interest.

B.

The next question is whether Appellant’s conduct somehow 

falls out of the liberty interest. Lawrence, 539 U.S. at 578.

The record establishes this case does not involve any of the 

conditions expressly listed in Lawrence that the Supreme Court 

suggested would take Appellant’s conduct out of the liberty 

interest. Appellant’s conduct did not involve injury to a 

person, abuse of an institution the law protects, minors, 

injured or coerced persons, persons in a situation where consent 

might not be easily refused, or prostitution.9 Id. at 567, 578. 

 

the application of various zones of privacy to the home); Carey, 

431 U.S. at 684 (“[O]ne aspect of the ‘liberty’ protected by the 

Due Process Clause of the Fourteenth Amendment is ‘a right of 

personal privacy, or a guarantee of certain areas or zones of 

privacy.’ This right of personal privacy includes ‘the interest 

in independence in making certain kinds of important 

decisions.’”) (citations omitted).

9 “Public conduct” is also expressly listed as a factor that may 

remove conduct from the liberty interest. Lawrence, 539 U.S. at
United States v. Goings, No. 11-0547/AR

11

However, the majority holds that “permitting a third-party to 

observe and memorialize one’s sexual activity on videotape” is 

outside of the Lawrence liberty interest -- apparently because 

it was not “wholly private,”10 it was “open and notorious” and 

therefore indecent, because “the trier of fact has deemed the 

conduct to be prejudicial to good order and discipline in the 

armed forces and service discrediting,” or some combination of 

the three. Goings, ___ M.J. at ___ (9–12).

The problem with this holding is that a military judge’s 

determination that Appellant’s conduct is legally sufficient to 

sustain a conviction for indecent acts under Article 134, UCMJ,

cannot be used to determine whether Appellant’s conduct is 

constitutionally protected, given the differing natures of the 

two inquiries.11 Compare Jackson v. Virginia, 433 U.S. 308, 319 

(1979) (“the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any

 

578. Whether Appellant’s conduct was “public” is discussed 

below.

10 The majority suggests that Appellant’s conduct must be wholly 

private, Goings, ___ M.J. at ___ (11), but it is unclear whether 

this is something beyond Lawrence’s conception of privacy as 

neither Lawrence nor Marcum contains that phrase.

11 While legal sufficiency is not an appropriate metric to 

determine constitutionality, I recognize that the reverse is not 

necessarily true. In other words, the constitutionally 

protected status of conduct may affect legal sufficiency, but 

not vice versa. See United States v. Wilcox, 66 M.J. 442 

(C.A.A.F. 2008).
United States v. Goings, No. 11-0547/AR

12

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt”), with Lawrence, 539 

U.S. at 563–64 (“The question before the Court is the validity 

of a Texas statute . . . . We conclude the case should be 

resolved by determining 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 . . . .”). This is especially true where the law has 

recently changed and we are evaluating the constitutionality of 

an as applied challenge to a statute as a matter of first 

impression.12 In this case, it does not matter that Congress, 

the President, and military courts have previously indicated

that conduct like Appellant’s was legally sufficient to sustain 

a conviction; what matters is whether Appellant has established 

that his conduct is constitutionally protected under the current 

state of the law. He has.

Appellant was convicted of an indecent act which requires: 

(1) that the accused committed a wrongful act; (2) that was 

indecent; and (3) under the circumstances was prejudicial to 

good order and discipline or service discrediting. MCM pt. IV, 

 

12 Indeed, the majority recognizes this point early in the 

opinion. Goings, ___ M.J. at ___ (7 n.3) (“What amounts to an 

argument that the Government has not put forth legally 

sufficient evidence to support an Article 134, UCMJ, conviction 

is fundamentally different from a constitutional argument that, 

in the military context, Appellant’s conduct is protected.”).
United States v. Goings, No. 11-0547/AR

13

para. 90.b. (2005 ed.). “Indecent” is defined as “that form of 

immorality relating to sexual impurity which is not only grossly 

vulgar, obscene, and repugnant to common propriety, but tends to 

excite lust and deprave the morals with respect to sexual 

relations.” Id. at para. 90.c.

Before Lawrence, this Court’s predecessor held that “open 

and notorious” fornication is indecent. See United States v. 

Berry, 6 C.M.A. 609, 614, 20 C.M.R. 325, 330 (1956) (finding 

indecency where the accused and a fellow servicemember 

simultaneously had sex with different women in the same hotel 

room and switched women the next morning). Since Berry, this 

Court has applied the “open and notorious” standard to find 

violations of indecent acts under Article 134. See, e.g., 

United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999) 

(finding indecency where the accused had sexual intercourse in 

his barracks room where his two roommates were sleeping). The 

majority relies upon these cases to argue that Appellant’s 

conduct is “open and notorious” and therefore “indecent” and 

prejudicial to good order and discipline or service 

discrediting. Goings, ___ at ___ (6–9). It ignores any effect 

that Lawrence may have had on Berry’s “open and notorious” 

standard for indecency, and seems to hold that either the 

presence of a third person during sexual activity, or the act of 

videotaping sexual activity, even for private use, equals 
United States v. Goings, No. 11-0547/AR

14

“public conduct” under Lawrence, or provides a separate basis to 

take Appellant’s conduct outside of Lawrence.

I do not believe that Berry remains good law after 

Lawrence, at least to the extent that it categorically forbids

“open and notorious” private, consensual, sexual conduct without 

any connection to the military other than the accused being a 

member of the military.13 I am also convinced that whatever 

“public conduct” means under Lawrence, it does not include 

adults consensually engaging in sexual activity inside a home.

Furthermore, recognizing that the list of unprotected conduct in 

Lawrence is non-exclusive, I can find no support for the 

majority’s suggestion that either the involvement of a third 

person, privately videotaping consensual sexual activity, or the 

combination of the two brings Appellant outside of the liberty 

interest.14

 

13 Even if part of Berry somehow survives Lawrence, it is not 

dispositive in this case, as Berry and its progeny are 

distinguishable. In those cases, the acts in question were all 

somehow connected to other military personnel, military duties, 

or military locations.

14 The only cases I can find which address Lawrence in the 

context of group sexual encounters or videos involve minors and 

are therefore already constitutionally unprotected. See, e.g.,

People v. Allen, No. A106272, 2005 Cal. App. Unpub. LEXIS 2135, 

2005 WL 552470 (Cal. App. 1st Dist. Mar. 9, 2005); United States 

v. Machado, No. ACM 35908, 2006 CCA LEXIS 132, 2006 WL 1512106 

(A.F. Ct. Crim. App. May 31, 2006). It does not appear that 

civilian jurisdictions have seen fit to charge or convict adults 

of such private, consensual conduct after Lawrence. Indeed, the 

only other cases the majority cites to show that Lawrence does 
United States v. Goings, No. 11-0547/AR

15

Lawrence discusses sexual activity between two persons but

does not limit the liberty interest to such activity.15 Rather, 

it describes the liberty interest as a personal decision that 

consenting adults may make. 539 U.S. at 564, 567, 570, 572. It 

is not appropriate or feasible for this or any court to 

determine whether to countenance certain types of consensual 

relationships or conduct, absent harm to persons or to an 

institution the law protects, or without a clear connection to 

the military as discussed below. Indeed, Lawrence expressly 

counsels against such determinations. Id. at 567 (“[The liberty 

interest], 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.”).

Similarly, nothing in Lawrence indicates that private 

videotaping of sexual activity is unprotected. This is 

 

not protect all sexual activity involve child pornography or 

nonconsensual photography of sexual activities. Goings, ___ 

M.J. at ___ (9–10, 11) (citing United States v. Lebowitz, 676 

F.3d 1000, 1012 n.5 (11th Cir. 2012); United States v. Cohen, 63 

M.J. 45 (C.A.A.F. 2006)). I doubt that the dearth of such cases 

indicates that no consenting adults are engaging in such 

activities.

15 If Lawrence only intended to protect the right of two 

homosexuals in a defined personal relationship to engage in 

certain sexual conduct it could have been decided on equal 

protection grounds -- something the Court expressly refused to 

do. 539 U.S. at 574–75.
United States v. Goings, No. 11-0547/AR

16

especially true where the videotapes were filmed in a home for 

private use only.16 There is nothing in the record to indicate 

that the video was intended to be anything but for private use, 

or that Appellant had a commercial intent in filming the video. 

The record establishes that the video was created years before 

it was found in Appellant’s home, and that Appellant neither

distributed the video nor even converted it to a medium which 

would make distribution feasible. At trial, defense counsel 

referred to it as a private video, the Government did not 

contest defense counsel’s characterization of the video as 

private, and members of Appellant’s unit testified that nobody 

had seen it or knew about it. Furthermore, the Government 

introduced no evidence of commercial intent or distribution, and 

even admitted in closing argument that there was no evidence 

that Appellant had shown anybody the videos.

 

16 I agree with the majority that in some cases videotaping 

sexual activity may have bearing on whether the conduct is 

“public” or nonconsensual such that conduct may not be protected 

by Lawrence. But such a factor is not relevant where, as here,

it is clear that all parties consented to the videotaping, it 

was done in a private location, and there is no evidence the 

tapes were distributed. Nonconsensual distribution after a 

video was made consensually is a separate matter. To this end, 

nearly every jurisdiction, including the military, has made 

nonconsensual distribution a separate offense. See Article 

120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012).
United States v. Goings, No. 11-0547/AR

17

Additionally, there is no law indicating that recording 

sexual acts is a punishable offense under Article 134, UCMJ.17

As noted above, aside from limited exceptions, it is not the 

province of this Court to determine what types of private sexual 

activities are appropriate. See Lawrence, 539 U.S. at 571 (“Our 

obligation is to define the liberty of all, not to mandate our 

own moral code.”) (citations and internal quotation marks 

omitted). Therefore, I would find that the record establishes 

that nothing takes the sexual activity outside of Lawrence in 

this case.

C.

Finding that Appellant’s actions are of a nature to bring 

them within Lawrence, and that nothing exists that takes them 

outside of that liberty interest, the next inquiry is whether 

 

17 This is supported by the fact Appellant was not charged for a 

number of videos found in his house depicting sexual conduct, 

and the fact the military judge saw fit to acquit him of two 

specifications involving videotaping of sexual conduct. 

Furthermore, the 2008 MCM expanded the definition of indecent 

conduct to include observing or making sexually related images

or videos without the other person’s consent and contrary to 

their reasonable expectation of privacy, but did not criminalize 

consensual recording. See Article 120(t)(12), UCMJ, 10 U.S.C. § 

920(t)(12) (repealed 2011) (emphasis added). Similarly, the 

2012 MCM did not criminalize consensual recording. Article 

120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012). There is military 

case law suggesting that photographing or filming sexual acts is 

punishable under Article 134, UCMJ. See, e.g., Cohen, 63 M.J. 

at 53. However, all of the cases involve lack of consent, 

surreptitious recording, or underage participants and are thus 

clearly distinguishable from this case.
United States v. Goings, No. 11-0547/AR

18

the circumstances of this case trigger the military-specific 

factors envisioned by Marcum.18

The record establishes that there is no evidence that the 

unidentified participants were in the military, connected to the 

military, knew Appellant was in the military, or that anybody in 

the military knew about the video. Defense counsel elicited 

testimony from a member of Appellant’s unit that there was no 

indication that another military member was involved in the 

video, and that no military members knew about the video. 

Additionally, defense counsel submitted that the other male in 

the video was not in the service based upon his appearance, and 

pointed out that the Government had not presented any evidence 

indicating that the unidentified participants were in the 

military, or knew that the accused was in the military. The 

Government did not respond or attempt to introduce any such 

evidence beyond suggesting that the video was connected to the 

military because Appellant is in the military. Appellant’s 

status as a military member alone is insufficient to fulfill the 

third prong of Marcum and foreclose constitutional protection. 

 

18 The third prong of Marcum asks if there are additional 

military factors that affect the nature and reach of the 

Lawrence liberty interest. 60 M.J. at 207. This Court has not 

squarely addressed what type of military factors or connections 

would be sufficient to take conduct outside of the liberty 

interest, or whether these factors encompass anything beyond

conduct or situations that are already covered by first and 

second prongs of Lawrence.
United States v. Goings, No. 11-0547/AR

19

Otherwise, Lawrence would be a dead letter as regards the 

military.

The majority suggests that “Congress’ and the President’s 

determination to proscribe such acts that are ‘to the prejudice 

of good order and discipline’ or ‘of a nature to bring discredit 

upon the armed forces,’ . . . no doubt furthers the military’s 

unique interest in obedience and discipline . . . .” Goings, 

___ M.J. at ___ (10) (citations omitted). I agree that if the 

third prong of Marcum means anything beyond the second prong, it 

is something akin to the terminal elements of Article 134, UCMJ

-- i.e., the legitimate interest in protecting the command and 

discipline capabilities of the military and protecting the 

reputation of the military. However, where the record 

establishes no military connection at all, much less a 

connection to command or disciplinary function, a 

servicemember’s constitutional rights should not be determined 

based on attenuated reputational concerns. Our First Amendment 

jurisprudence supports this holding:

Article 134, UCMJ, does not make every “irregular or 

improper act” a court-martial offense and does not 

reach conduct that is only indirectly or remotely 

prejudicial to good order and discipline. MCM pt. IV, 

para. 60.c.(2)(a); see also William Winthrop, Military 

Law and Precedents 723–24 (2d ed. 1920 reprint) 

(commenting on Article 62 of the American Articles of 

War, the predecessor to Article 134, UCMJ, and stating 

that to be punishable, acts prejudicial to good order 

and discipline “must have been committed under such 

circumstances as to have directly offended against the 
United States v. Goings, No. 11-0547/AR

20

government and discipline of the military state”). If 

it were otherwise, the forces of narrowing 

interpretation that saved Article 134, UCMJ, from 

constitutional challenge in Parker v. Levy would fail.

Wilcox, 66 M.J. at 447. The Fourteenth Amendment privacy 

interest here is directly analogous to the First Amendment free 

speech interests in Wilcox and this Court should require a 

similar connection to the military to trigger the third prong of 

Marcum -- a direct and palpable connection between the conduct 

and the military mission or military environment.19 Id. at 448.

Appellant has established there was no direct and palpable 

connection between his conduct and the military mission or 

military environment. Therefore there is no “additional 

factor[] relevant solely in the military environment that 

affect[s] the nature and reach of the Lawrence liberty 

interest.” Marcum, 60 M.J. at 206. Appellant’s conduct is 

constitutionally protected.20

 

19 Wilcox analyzed the legal sufficiency of an Article 134, UCMJ, 

conviction for service discrediting speech; whereas this case is 

addressing the constitutionality of a statute as applied. 66 

M.J. at 448. As noted above, these are two separate inquiries. 

However, it does not seem logical to require a more exacting 

standard -- direct and palpable connection to the military -- in 

the context of legal sufficiency, which is a very low threshold 

for the Government to meet, but not require the same standard in 

the context of determining constitutional rights. See United 

States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (recognizing the 

low bar to establish legal sufficiency).

20 This does not conflict with our holding in United States v. 

Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011). Phillips analyzed 

what is legally sufficient to establish the terminal element of 
United States v. Goings, No. 11-0547/AR

21

IV.

The record establishes that Appellant’s conduct was private 

consensual activity between adults, that did not fall outside of 

the Lawrence liberty interest, and was not affected by 

additional military factors. Therefore, Appellant has 

established he was convicted of constitutionally protected 

conduct -- a plain and obvious error which materially prejudices 

his substantial rights. I cannot think of a more compelling 

demonstration that Appellant’s interests “overcome Congress’ and 

the President’s determinations that his conduct be proscribed.” 

Goings, ___ M.J. at ___ (8); see also United States v. Stephens, 

67 M.J. 233, 235 (C.A.A.F. 2009) (“Of course, a rule or other 

provision of the Manual for Courts-Martial cannot sanction a 

violation of Appellant’s constitutional rights.”); United States 

v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (recognizing that the 

military, like the federal and state systems, has hierarchical 

sources of rights, and that the highest source is the 

Constitution of the United States). I would reverse Appellant’s 

conviction as to the indecent acts charge.

 

Article 134, UCMJ, in a child pornography prosecution. This is 

not a legal sufficiency case, it is a case analyzing the 

constitutionality of a statute, and child pornography stands 

upon a different constitutional basis. In any event, Phillips

recognized that constitutionally protected conduct may be 

different even in the context of analyzing legal sufficiency. 

Id. at 166.