Last edited: December 07, 2004

United States v. Kenneth M. Bullock



Appellate Military Judges

United States Army, Appellant

ARMY 20030534

Joint Readiness Training Center and Fort Polk
Donna M. Wright, Military Judge
Lieutenant Colonel Floyd T. Curry, Acting Staff Judge Advocate (trial)
Colonel Jon L. Lightner, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert, JA; First Lieutenant Robert L. Martin, JA (on brief).

For Appellee: Colonel Steven T. Salata, JA; Lieutenant Colonel Mark L. Johnson, JA; Major Natalie A. Kolb, JA; Captain Isaac C. Spragg, JA (on brief).

30 November 2004


MERCK, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of consensual sodomy and assault consummated by a battery, in violation of Articles 125 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 928 [hereinafter UCMJ]. Contrary to his pleas, appellant was convicted by the military judge of indecent acts with another, in violation of Article 134, UCMJ. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for six months, forfeiture of all pay and allowances, and reduction to Private E1. The convening authority credited appellant with seventy-nine days of confinement credit against the approved sentence to confinement.

This case is before the court for automatic review pursuant to Article 66, UCMJ. We have considered the record of trial, appellant’s assignments of error, the matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the government’s response thereto. Appellant asserts that his conviction for consensual sodomy, in violation of Article 125, UCMJ, violated his constitutional rights. We agree that the facts admitted by appellant during the providence inquiry fail to establish that Article 125 was constitutionally applied in this case and we will grant relief accordingly.


Appellant pled guilty to, and was convicted of, engaging in consensual sodomy with MG. During the providence inquiry, appellant testified under oath about the facts and circumstances of the alleged offense. He said that MG was a civilian woman whom he met after going to a club on-post. The following exchange occurred between appellant and the military judge:

MJ: So you had sexual intercourse with her in the barracks’ room and during the course of having intercourse with her you had oral sodomy with her?

ACC: Yes, ma’am.

MJ: Tell me exactly what part of your body went into what opening in her body?

ACC: My penis into her mouth, ma’am.

MJ: And you actually penetrated her mouth with your penis?

ACC: Yes, ma’am.

MJ: Do you agree that, as I read that definition to you, that was unnatural carnal copulation?

ACC: Yes, ma’am.

Appellant pled not guilty to a charge of indecent assault upon MG based on conduct which occurred many hours after the initial consensual encounter. After the guilty plea inquiry, the government attempted to prove appellant’s guilt to that offense. During the government’s opening statement, the trial counsel told the military judge, “this is a case about a soldier who took what began as an innocent, consensual encounter and pushed it far beyond what the military can accept as reasonable.”


“For a guilty plea to be provident, the accused must be convinced of, and be able to describe, all of the facts necessary to establish guilt.” United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 2003). The military judge must elicit “‘factual circumstances as revealed by the accused himself [that] objectively support that plea[.]’” Id. (quoting United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). A finding of guilty based on a guilty plea will not be set aside on appeal unless the record of trial shows a “substantial basis in law and fact for questioning the guilty plea.” Id.

Until recently, a providence inquiry supporting a plea of guilty to consensual sodomy in violation of Article 125, UCMJ, required only that an accused describe sufficient facts to find that he had engaged in “unnatural carnal copulation.”[1] However, in Lawrence v. Texas, 539 U.S. 558, 572 (2003), the Supreme Court recognized “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The Court stated, ‘“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’” Id. at 578 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847 (1992)). The Court held that two adults who engage in completely consensual sexual behavior are “entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without the intervention of the government.” Id.

In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the Court of Appeals for the Armed Forces applied the Lawrence constitutional analysis to the military context where a soldier was convicted of “non-forcible sodomy” in violation of Article 125, UCMJ. The Court stated, “In the military setting, . . . an understanding of military culture and mission cautions against sweeping constitutional pronouncements that may not account for the nuance of military life.” Id. at 206. Consequently, the Court reasoned that a “contextual, as applied analysis, rather than facial review” of Article 125 was necessary to review convictions for non-forcible sodomy, particularly in the military environment. Id. at 205. Therefore, the correct question when reviewing such a conviction is “whether Article 125 [was] constitutional as applied to Appellant’s conduct.” Id. at 206.

The Court outlined the following three-prong test for determining whether such a conviction is constitutional in a given case:

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 [in Lawrence]? 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?

Id. at 206-207; see also United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). Consequently, for a plea of guilty to Article 125, UCMJ, to be provident, the providence inquiry must now establish a factual predicate which objectively supports a finding that an accused’s conduct was outside the liberty interest identified in Lawrence and discussed in Marcum.


The providence inquiry failed to establish a sufficient factual predicate to objectively establish that appellant’s conduct was outside the liberty interest identified in Lawrence and Marcum. The facts admitted by appellant describe a consensual encounter between two adults in the privacy of a barracks room. Nothing in the providence inquiry indicates that anyone other than appellant and MG were present.[2] This conduct is squarely within the liberty interest recognized in Lawrence and Marcum.

Second, the conduct as described by appellant did not “encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence.See Marcum, 60 M.J. at 206-207. The conduct did not involve a minor. See Lawrence, 539 U.S. at 578. It did not involve public conduct or prostitution. Id. It did not involve “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id.

Finally, there are no “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Marcum, 60 M.J. at 207. Appellant described conduct with a civilian, with no military connection other than that it occurred in a barracks room. Appellant did not admit any facts during the providence inquiry which demonstrated any military necessity to circumscribe his liberty interest in engaging in private, consensual behavior with another adult. Consequently, the providence inquiry was insufficient to support appellant’s plea of guilty to this offense.

Accordingly, the findings of guilty to Charge I and its Specification are set aside and dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for five months, forfeiture of all pay and allowances for five months, and reduction to Private E1. All rights, privileges, and property of which appellant has been deprived by virtue of that portion of his sentence set aside are ordered restored as mandated by Article 75(a), UCMJ.

Judge JOHNSON and Judge MOORE concur.

For the Court:

Clerk of Court

1 Article 125, UCMJ, states that “[a]ny person . . . who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.”

2 The government asserts that “the sodomy occurred in a military barracks room in the presence of appellant’s roommate.” The record does not establish that the conduct occurred in the roommate’s “presence.” However, even assuming the government did establish this fact during the contested portion of the case, appellant did not admit it during the providence inquiry into his plea to the consensual sodomy, which was the basis for the finding of guilty. See United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (stating that “[a] providence inquiry into a guilty plea must establish, inter alia, ‘not only that the accused himself believes he is guilty but also that the factual circumstances as revealed by the accused himself objectively support that plea’”) (quoting United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994).

[Home] [News] [US Military]