Armed Forces Appeal Court Vacates and Remands Article 125 Sodomy Conviction

The U.S. Court of Appeals for the Armed Forces vacated a guilty plea to a charge of sodomy under Article 125 of the Uniform Code of Military Justice (UCMJ), finding that the court martial trial judge did not engage in the required colloquy with the defendant necessary for an informed guilty plea. United States v. Hartman, 2011 WL 904218 (March 15, 2011). As a result of the guilty plea, Hartman was sentenced to a bad-conduct discharge following a reduction in pay grade and a month in the brig.
In 2004, this court issued its decision in United States v. Marcum, 60 M.J. 198, setting out its analysis of the effect of Lawrence v. Texas, 539 U.S. 558 (2003), on the continued enforcement of the military sodomy law. In Lawrence, the U.S. Supreme Court held that the liberty interest protected by the 14th Amendment Due Process Clause included the right of consenting adults of the same-sex to engage in private, non-commercial sexual activity. In Marcum, the Armed Forces Court of Appeals established a tripartite analytical framework for analyzing sodomy charges against military personnel, acknowledging that the 5th Amendment Due Process Clause applies in the military and thus that some conduct covered by Article 125 might be constitutionally protected in light of Lawrence. Under the Marcum framework, the court first considers whether the nature of the conduct would

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