United States v. Rocha, (2024)

For the reasons set forth below, I agree with the United States Air Force Court of Criminal Appeals (AFCCA) that Appellee did not have fair notice that the charged conduct was punishable as indecent conduct. Moreover, I would hold that the charged conduct was constitutionally protected because it did not implicate any aggravating factors that would place it outside the scope of the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003). I therefore respectfully dissent from the Court's judgment reversing the decision of the AFCCA and remanding for further proceedings.

I. Standard of Review

Whether an accused had fair notice of the criminality of his conduct is a question of law reviewed de novo. United States v. Merritt, 72 M.J. 483, 486 (C.A.A.F. 2013). The Court concludes that Appellee forfeited the fair notice issue by failing to raise it at trial, and therefore applies a plain error standard of review to the rulings of the military judge. I disagree. In my view, Appellee preserved the fair notice issue by moving to dismiss Specification 2 of the Charge for failure to state an offense, and the AFCCA correctly reviewed the issue de novo.

In Citizens United v. FEC, the Supreme Court held that the appellant did not waive a facial challenge to the validity of a statute restricting corporate speech by stipulating below to dismissal of that count of its complaint against the Federal Election Commission (FEC). 558 U.S. 310, 329 (2010). The appellant had also raised an as-applied challenge to the same statute which was fully litigated. Id. In that context, the Supreme Court determined that, in reasserting the facial challenge on appeal, the appellant was not pressing a new claim, but rather, it was advancing “ ‘a new argument to support what has been [a] consistent claim: that [the FEC] did not accord [Citizens United] the rights it was obliged to provide by the First Amendment.’ ” Id. at 331 (alterations in original) (quoting Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 379 (1995)). Moreover, the Court noted, the facial and as-applied claims were inextricably intertwined where “Citizens United has preserved its First Amendment challenge to [the statute] as applied to the facts of its case; and given all the circumstances, we cannot easily address that issue without assuming a premise—the permissibility of restricting corporate political speech—that is itself in doubt.” Id.

In this case, Appellee preserved the fair notice issue by raising a motion to dismiss for failure to state an offense in which he argued that he had a constitutional liberty interest under Lawrence in his private possession of, and private masturbatory conduct with, the doll. The gist of his arguments was that he reasonably believed he was engaging in private, protected conduct. For example, he argued that “it is widely understood that people still hold their privacy interests and have a reasonable expectation to privacy within the dorms”; “[i]t would seem wholly illogical that someone would believe that their privacy rights were diminished because they bought a product online simply by the nature of purchasing the product”; and “[i]f the Government's charging scheme here is sufficient, then they could simply charge any conduct as indecent no matter how private and no matter whether the sexual nature of the conduct is otherwise illegal.” 1

As in Citizens United, Appellee's argument on appeal is an argument in support of a claim he advanced at trial: he could not have known and did not believe that his conduct was criminal where there were no aggravating factors taking his behavior outside the protection of Lawrence. Furthermore, given the facts and the issues in this case, the fair notice issue is inseparable from the issue he litigated at trial. Because his liberty interest under Lawrence goes hand-in-hand with his lack of notice of the criminality of his private conduct, Appellee preserved the issue of fair notice by raising a motion to dismiss for failure to state an offense based on Lawrence. 2 Therefore, de novo review is appropriate.

II. Discussion

I agree with the Court's conclusion that presidentially enumerated elements may provide fair notice to servicemembers that certain conduct is criminal. I part ways with the majority because I cannot agree that the elements of indecent conduct under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2018), and the definition of “[i]ndecent” as prescribed by the President in the Manual for Courts-Martial, United States pt. IV, para. 104.c.(1) (2019 ed.) (MCM), provided fair notice that the charged conduct was subject to criminal sanction. “The test for constitutional notice that conduct is subject to criminal sanction is one of law. It does not turn on whether we approve or disapprove of the conduct in question.” United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013). “Potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations.” Id. (citing United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)). Because I find that neither the elements or definitions of indecent conduct nor any other source provide fair notice that solitary acts of masturbation with an inanimate object in the privacy of one's bedroom may be criminally proscribed, I would hold that Appellee did not have fair notice that the charged conduct was prohibited.

A. Fair Notice

The Court concludes that Appellee derived notice that his conduct was unlawful from the presidentially enumerated elements of “indecent conduct” and definition of “indecent.” According to the Court, this conclusion is supported by the fact that possession of child pornography—characterized by the Court as “closely similar” to the charged conduct—is proscribed by statute. In other words, because possession or production of an obscene depiction of a minor or what appears to be a minor engaging in sexually explicit conduct constitutes a child pornography offense, a reasonable servicemember of ordinary intelligence would know that possession of an anatomically correct childlike sex doll and engaging in sexual activity with that doll would similarly be criminally actionable.

I do not accept the Court's premise that the charged conduct is similar to a child pornography offense. In Merritt, the Court rejected a “general criminality” theory regarding child pornography, holding that the appellant was not on notice that the unenumerated offense of viewing child pornography was subject to criminal sanction where military case law had long recognized possession of child pornography as an offense but “the ‘viewing’ of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, or the majority of state statutes.” 72 M.J. at 488 (internal quotation marks omitted). 3 As the Court explained:

Underlying this argument is the government's theory that there is an aura of criminality surrounding child pornography which placed servicemembers on notice that any conduct involving child pornography constitutes criminal conduct even though that conduct was not criminalized by almost all traditional sources of due process notice. While actions related to viewing child pornography may well subject a servicemember to prosecution for violation of other criminal offenses involving child pornography (such as possession or transmission), it does not follow that conduct not otherwise prohibited becomes criminalized solely due to its proximity to the prohibited conduct. In this case, the government's argument suggests that Merritt was on notice that there was an additional criminal act that occurred when he viewed the very same pictures that he was charged with possessing.

We decline to adopt such an amorphous standard and adhere to the traditional sources of notice set forth in Vaughan.

Id. (footnote omitted).

Similarly, in Warner, the Court held that the appellant was not on notice that possession of child erotica, charged as “images ‘that depict minors as sexual objects or in a sexually suggestive way,’ ” was subject to criminal sanction. 73 M.J. at 2. The evidence consisted of “twenty unique images of minor girls, none of which depicts nudity. Rather, these images depict minor girls posing provocatively in revealing clothing, with highly distasteful captions superimposed on the images.” Id. (footnote omitted). The Court reviewed for plain error the appellant's claim, raised for the first time on appeal, that he did not have fair notice that the charged conduct was subject to criminal sanction. Id. at 3. It concluded:

[A]lthough child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice set out in Vaughan and available to Appellant. It follows that the Appellant received no such notice.

Id. at 4.

Currently, child pornography offenses encompass the possession, viewing, production and distribution of obscene visual depictions of children engaged in sexually explicit conduct. MCM pt. IV, para. 95.b., 95.c.(4) (2019 ed.) (emphasis added). And, as the Court correctly notes, servicemembers may be convicted under Article 134 of child pornography offenses involving what appear to be minors. United States v. Mason, 60 M.J. 15, 20 (C.A.A.F. 2004) (“The receipt or possession of ‘virtual’ child pornography can, like ‘actual’ child pornography, be service-discrediting or prejudicial to good order and discipline.”).

In this case, Appellee was not charged with possession, viewing, production, or distribution of an obscene visual depiction of a child engaging in sexually explicit conduct. He was charged with engaging in sexual acts—alone, in his bedroom, with a toy—“to simulate sexual acts with a minor.” 4 There is no evidence that those acts were viewed or recorded by anyone, or that any such recording was produced, viewed, possessed, or distributed. In short, the charged conduct of privately using a toy for personal sexual gratification is not similar to possessing, viewing, producing or distributing depictions of children engaged in sexually explicit acts. 5

Moreover, the doll's resemblance to a child does not make otherwise-lawful conduct unlawful. Nothing in the statutory or enumerated language of the MCM gives notice that engaging in private, consensual, sexual acts with someone or something that looks like a child but is not in fact a child would, on that basis alone, constitute a punishable offense. Nor does the statutory or enumerated language of the MCM establish that wholly private, solitary sexual conduct is punishable merely because it is done for personal sexual gratification. See United States v. Kim, 83 M.J. 235, 239 (C.A.A.F. 2023) (stating that “images viewed for sexual gratification do not necessarily lose their First Amendment protection”); United States v. Moon, 73 M.J. 382, 389 (C.A.A.F. 2014) (concluding that possession of child erotica that is neither obscene nor constitutes child pornography “for one's sexual gratification does not itself remove such [material] from First Amendment protection”); United States v. Marcum, 60 M.J. 198, 206-07 (C.A.A.F. 2004) (recognizing that wholly private, consensual sexual activity that is otherwise proscribed by the UCMJ may be constitutionally protected).

Turning to outside sources, the parties agree that no federal or state statute criminalized the possession or use of childlike sex dolls at the time of Appellee's charged conduct. However, the Government points to five subsequently enacted state statutes that criminalize the possession of child sex dolls, and two failed attempts to enact similar legislation in Congress. While the Court dismisses these legislative developments as irrelevant, in my view the fact that five states enacted such legislation after Appellee engaged in the charged conduct, and that Congress was unable to enact similar legislation, supports the conclusion that the conduct was not prohibited by any law at the time of the charged offense and Appellee did not have fair notice that his conduct could be criminally proscribed.

Next, the Court contends that Appellee actually knew his conduct was prohibited, citing his acknowledgment that the doll resembled a child and the fact that he had it shipped to an off-base residence. Viewed in context, Appellee's statements merely expressed embarrassment about his relationship to the doll even as he distinguished his conduct from child pornography offenses.

When Appellee was first questioned about the doll, he was advised that he was suspected of an Article 134, UCMJ, offense concerning child pornography. Appellee waived his rights and spoke with the Air Force Office of Special Investigations (AFOSI) about the doll. In the interview, Appellee explained that he found the doll on a website that sold sex dolls. He stated that he was “looking at mini sex dolls” because “the larger ones” would not fit well in his small dorm room and would be “bulky” and “hard to move.” Although the resemblance to a child was “obvious” to Appellee, the product description “never said anything about a child doll.” Appellee had it shipped to the home of a senior airman rather than to his own dorm because the dorm address was a post office box and the package could not be delivered to a post office box. Not knowing what it contained, the senior airman delivered the package to Appellee when it arrived.

The AFOSI agents pressed Appellee to explain what was wrong with having the doll. Appellee said, “I can understand why the doll would not be good because that is representative of a real life human being,” but he added, “I don't know exactly what the problem is.” He explained, “Well, when I got it, at first, it didn't feel like anything was wrong because, you know, it's just a [indiscernible]. I'll have something that I can talk to that looks like a real person and it won't take up very much space.” (Alteration in original.) At the same time, he said it was “embarrassing” and he worried that “an outside perspective” would find it “really weird” because “[i]t's a doll of a child.”

Appellee admitted to masturbating with the doll on three occasions. He said that using the doll made him feel sad and dirty, and he stopped each time when he began to think about “what if this was a life, what if this was real.” He said that he could not see himself having sex with an actual child. Appellee told the agents he preferred anime pornography. Distinguishing his conduct from child pornography, he explained that he did not like actual pornography and he believed child pornography was “actual child abuse.”

Viewed in the context of an interrogation based on suspicion of child pornography offenses, Appellee's statements cannot fairly be viewed as an admission that he knew his conduct was prohibited. Instead, he viewed his conduct as private and different from child pornography. 6

Just as Appellee “[didn't] know exactly what the problem [was],” the command representatives and AFOSI agents who were involved in the search that led to the discovery of the doll did not know whether they had uncovered contraband or evidence of an offense. Appellee lived in a two-person dorm room that contained a common living area and bathroom and two separate bedrooms. While SGT CW inspected one bedroom, SGT LM went into Appellee's bedroom, where she found a doll on Appellee's bed, partially hidden under a blanket and a body pillow. Not sure what to do, she summoned SGT CW. SGT CW approached Appellee's bed and saw “a very life like doll on the bed.” He testified, “[I]t shocked me or stunned me in such a way I just—flight response kind of set in, I stepped back and left the room as soon as I could,” and called AFOSI. In his pre-trial testimony on a defense motion to suppress the results of the search of Appellee's room, SGT CW explained, “I didn't know if it was illegal or not but ․ it was shocking to me. And legal or not, ․ I just thought it needed to have a law enforcement's review.”

AFOSI agents had briefed command representatives on proper execution and were present during the inspection to answer questions. AFOSI Special Agent (SA) JL entered the room, approached the bed, and “saw a doll that scared [him] because it kind of looked like a child.” He called the legal office for advice because it was “kind of something outside of the realm that [he had] encountered before.” Another agent testified at the motion to suppress hearing that he was not sure “if [the doll] was against any MCM, if it was against a rule.” Unlike other masturbatory aids, including other sex dolls, which agents would encounter but typically did not seize, he had “never come across a child doll like that so [he] did not know what [he] could or could not do.”

While command representatives and the AFOSI agents who were advising them were disturbed by the likeness of the doll to a child, they did not know whether they had uncovered contraband or evidence of any offense. As the agents testified, mere possession of an adult sex doll was not prohibited. Presumably, then, the private use of such a doll for sexual gratification was also not prohibited. And as discussed above, at the time of the charged conduct, the mere possession of a childlike sex doll was not prohibited. Against that backdrop, how was Appellee to know that masturbating in private with a sex doll was prohibited?

Here, as in Merritt and Warner, neither the MCM nor any other source of law placed Appellee on notice that what he did in the privacy of his single-occupancy barracks bedroom with an inanimate object was anything other than private sexual conduct, even if the doll resembled a child. This is so even if we accept the majority's premise that the charged conduct was similar to a child pornography offense, because the “proximity” of his private conduct to child pornography is not enough to have placed him on notice that his conduct was proscribed. Merritt, 72 M.J. at 488. This conclusion is not undermined by the fact that Appellee was embarrassed by his own behavior and went to some lengths to hide the doll from public view. As this Court noted in Merritt, “the fact that a servicemember may be ashamed of certain conduct is not sufficient by itself to equate to due process notice that the conduct was subject to criminal sanction.” Id. at 487.

B. Constitutionally Protected Conduct

Neither the lower court nor this Court reach the question whether Appellee's private, consensual sexual conduct is constitutionally protected under Lawrence. In my view, Appellee's private, sexual conduct with an inanimate object in his single-occupancy dorm room in a military barracks was “constitutionally protected conduct, in a place deserving of constitutional protection.” United States v. Bowersox, 72 M.J. 71, 80 (C.A.A.F. 2013) (Stucky, J., dissenting). First, laws regulating obscenity do not reach into the home, and this applies to a limited extent even where the home is a military barracks. And second, Appellee had a constitutional liberty interest in his wholly private masturbation in his private dorm room, even if he used a childlike doll for his own sexual gratification.

Indecency is synonymous with obscenity, and obscenity is not protected by the First Amendment. United States v. Moore, 38 M.J. 490, 492 (C.M.A. 1994). Nevertheless, restrictions on obscene material must be “carefully limited.” Miller v. California, 413 U.S. 15, 24 (1973); see also United States v. Brinson, 49 M.J. 360, 361 (C.A.A.F. 1998) (stating that “[w]hen the Government makes speech a crime, the judges on appeal must use an exacting ruler.”); Stanley v. Georgia, 394 U.S. 557, 565 (1969) (explaining that the “mere categorization of [material] as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments”). For example, statutes regulating obscenity do not “reach into the privacy of one's own home.” Stanley, 394 U.S. at 565. Thus, in Stanley, the Supreme Court distinguished cases involving public distribution of obscene materials and held that the First and Fourteenth Amendments prohibit making the mere private possession of obscene material a crime. Id. at 566-67 (finding “little empirical basis” for the government's assertion “that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence,” and concluding that “the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of home-made spirits”).

“This constitutional right protected in Stanley does not automatically apply to servicemembers. Conduct that is constitutionally protected for civilians could still qualify as prejudicing good order and discipline or bringing discredit upon the military.” Kim, 83 M.J. at 239 (citing Moon, 73 M.J. at 388). “[T]he armed forces may prohibit service-discrediting conduct so long as there is a reasonable basis for the military regulation of Appellant's conduct.” United States v. Rollins, 61 M.J. 338, 345 (C.A.A.F. 2005); see also United States v. Brown, 45 M.J. 389, 396 (C.A.A.F. 1996) (stating that “[c]ourts will ‘not overturn a conviction unless it is clearly apparent that, in the face of a First Amendment claim, the military lacks a legitimate interest in proscribing the defendant's conduct’ ” (quoting Avrech v. Secretary of the Navy, 520 F.2d 100, 103 (D.C. Cir. 1975))).

This Court has limited Stanley to its facts, upholding convictions for indecent conduct and language “beyond the confines of the home.” United States v. Meakin, 78 M.J. 396, 402 (C.A.A.F. 2019); see also id. at 398 (affirming convictions under Article 133, UCMJ, 10 U.S.C. § 933 (2012), where the accused “engaged in a series of online conversations where he described in lurid detail the abuse, molestation, and rape of children with individuals”); Rollins, 61 M.J. at 344-45 (affirming a conviction for indecent acts with another under Article 134, UCMJ, where the accused gave his underage brother-in-law a pornographic magazine and suggested they masturbate together); United States v. Hartwig, 39 M.J. 125, 130 (C.M.A. 1994) (affirming a conviction under Article 133, UCMJ, where the accused wrote a letter containing indecent language to a fourteen-year-old schoolgirl); Moore, 38 M.J. at 492 (affirming a conviction under Article 133, UCMJ, where the accused threatened to disclose a woman's nude photos and sexual indiscretions to her parents if she terminated their relationship; indecent language was “not simply amorous banter between two long-time lovers; rather, it was demeaning vulgarity interwoven with threats and demands for money and sex”); United States v. French, 31 M.J. 57, 60-61 (C.M.A. 1990) (affirming conviction under Article 134, UCMJ, where accused asked his fifteen-year-old stepdaughter if he could get in bed with her).

The Court has also limited Stanley’s application to conduct occurring in shared military barracks, stating:

[S]ervicemembers have a reasonable expectation of privacy in a shared barracks room that protects them from unreasonable government intrusions, [but] one's privacy interest in a shared barracks room is [not] coextensive with one's privacy interest in their home. ․ Thus, a soldier has less of an expectation of privacy in his shared barracks room than a civilian does in his home.

Bowersox, 72 M.J. at 76. In that case, the Court held that the accused had no right to possess child pornography in a shared barracks room where the accused showed his room-mate obscene material on his computer. Id. at 72.

Notwithstanding these limitations on Stanley’s application to the military, Appellee's conduct falls within the protection afforded private consensual sexual conduct within the home. First, unlike the appellant in Bowersox, Appellee did not share a barracks room and did not show anyone the doll or share what he did with the doll. The doll was discovered in Appellee's single-occupancy military dorm bedroom, where he kept it and engaged in the charged conduct, unseen by anyone. The doll was discovered only as a result of the health and welfare inspection, and his conduct with the doll was discovered only as a result of his admission to investigators after they found the doll. Bowersox did not strip servicemembers residing in military barracks of any privacy interests; it only spoke to a diminished privacy interest in shared barracks rooms. Appellee did not share his room and therefore, his conduct did not lose its protected, private character in this case merely because it occurred in a military dorm room.

Second, this Court has made clear that an accused's sexual interest in otherwise-protected material does not alone remove it from constitutional protection. Recently, in Kim, this Court determined that Stanley was “implicated” where a servicemember pled guilty to indecent conduct for searching pornographic websites for “rape sleep” and “drugged sleep” and told the military judge that watching such videos reminded him of his abuse of his stepdaughter. 83 M.J. at 237-38 (internal quotation marks omitted). Recognizing that “images viewed for sexual gratification do not necessarily lose their First Amendment protection,” the Court concluded that the accused's conduct “occupies a constitutional gray area” such that the military judge erred by failing to conduct a detailed plea colloquy to determine “why possibly constitutionally protected material could still be service discrediting in the military context.” Id. at 239. Similarly, in Moon, the Court concluded the military judge erred in accepting an accused's guilty plea under Article 134, UCMJ, for possession of images of nude minors that were neither child pornography nor obscene, 7 noting that “possession of images for one's sexual gratification does not itself remove such images from First Amendment protection. If it did, ‘a sexual deviant's quirks could turn a Sears catalog into pornography.’ ” 73 M.J. at 389 (quoting United States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999)). These cases establish that Appellee's conduct did not lose constitutional protection merely because Appellee used a doll that resembled a child for his sexual gratification.

Private, consensual sexual activity is constitutionally protected under Lawrence, 539 U.S. at 578. As we have noted:

Lawrence suggested its own limits by stressing what facts were not involved in the decision: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.”

United States v. Castellano, 72 M.J. 217, 221 (C.A.A.F. 2013) (quoting Lawrence, 539 U.S. at 578).

In Marcum, this Court applied Lawrence to the military. 60 M.J. at 205. The Court set out three factors to consider in determining whether private consensual sexual activity of a servicemember may be criminalized under the UCMJ: (1) whether Appellee's “conduct was of a nature to bring it within the Lawrence liberty interest. Namely, did [it] involve private, consensual sexual activity between adults?”; (2) “whether [Appellee's] conduct nonetheless encompassed any of the behavior or factors that were identified by the Supreme Court as not involved in Lawrence. For instance, did the conduct involve minors? Did it involve public conduct or prostitution? Did it involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused?”; and (3) whether there are “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Id. at 207. Assuming without deciding that private, consensual sodomy that occurred off-base was conduct of a nature to fall within the Lawrence protected liberty interest, the Court held that it was still punishable under Article 125, UCMJ, 10 U.S.C. § 925 (2000), because the accused, a noncommissioned officer, engaged in the conduct with a subordinate airman. 60 M.J. at 208. “While servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, ‘this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy.’ ” Id. (quoting United States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996)).

This Court has applied the Marcum factors and limited Lawrence to its facts. As the Court explained in United States v. Goings, “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 did not establish a presumptive constitutional protection for all offenses arising in the context of sexual activity.” 72 M.J. 202, 206 (C.A.A.F. 2013) (citations omitted). Instead, the Court clarified that “private consensual sexual activity is not punishable as an indecent act absent aggravating circumstances” such as open and notorious sexual activity. Id. at 205. Thus, this Court has upheld convictions for sexual conduct that was not private. Id. at 206 (affirming a conviction for an indecent act with another where the accused engaged in consensual sexual activity with a female in his off-post apartment in the presence of a third party whom they allowed to record the sexual activity); Meakin, 78 M.J. at 403 (rejecting the argument “that distributing or transmitting obscenity that encourages, describes, and revels in the sexual exploitation of children over the internet falls within the fundamental liberty interest recognized in Lawrence”); United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999) (holding that the appellant's acts were sufficiently public in nature to constitute indecent acts where he engaged in sexual intercourse with a female in his barracks room while two of his roommates were present; although he hung up a sheet that substantially blocked their view of his side of the room, the roommates were suspicious of the activity on the other side of the sheet); cf. Izquierdo, 51 M.J. at 423 (holding that evidence that the appellant engaged in sexual intercourse in his barracks room with a female when the door was closed and no one else was in the room was legally insufficient to establish open and notorious conduct sufficient to sustain finding of guilty of indecent act). Other courts have upheld convictions for private sexual conduct where other aggravating factors involving animals and corpses were present. United States v. Jagassar, No. ACM 38228, 2014 CCA LEXIS 64, at *11, 2014 WL 842667, at *2-4 (A.F. Ct. Crim. App. Feb. 4, 2014) (finding that conduct “which involved the use of animals and resulted in injury” to the other participant “meets the requirement for aggravating factors necessary” to punish private, consensual activities); United States v. Sanchez, 11 C.M.A. 216, 217-16, 29 C.M.R. 32, 33-34 (1960) (holding that a specification alleging the appellant “wrongfully and unlawfully commit[ted] an indecent act with a chicken ․ with intent to gratify his lust” properly stated an offense under Article 134, UCMJ); United States v. Mabie, 24 M.J. 711, 712 (A.C.M.R. 1987) (holding that a specification alleging the appellant committed sexual acts on a human corpse properly stated an offense under Article 134, UCMJ).

The aggravating factors limiting the application of Lawrence in other cases are not present here. There is no issue of consent or capacity to consent; no minors involved; no open or public conduct; and no apparent connection between Appellee's conduct and the military environment or mission. The Government tries to rescue its case by positing that “[i]f private possession of virtual child pornography can be constitutionally prosecuted in the military under Article 134, then it follows that committing sexual acts with a child sex doll in private can be as well.” As discussed in Section II.A. above, the analogy is inapt. A better analogy would be: if private possession of virtual child pornography can be constitutionally prosecuted in the military under Article 134, then private possession of a child sex doll can be as well. But Appellee was not charged with possession of a child sex doll, nor is it clear under what article such a charge would arise, and even the sergeants who conducted the dorm inspection and the AFOSI agents who were standing by to advise them did not know whether the doll was contraband or evidence of a criminal offense. As discussed above, Appellee's conduct was not analogous to child pornography or to rape, sexual assault, or sexual abuse of a child, and Stanley squarely protects the private possession of obscene material—if the doll can be characterized as such.

III. Conclusion

For the foregoing reasons, I would affirm the decision of the United States Air Force Court of Criminal Appeals.

FOOTNOTES

1.   Appellee reasserted these arguments in a motion pursuant to Rule for Courts-Martial 917 for a finding of not guilty.

2.   Although the record supports the conclusion that Appellee preserved the fair notice issue, I would conclude he is entitled to relief under plain error review as well because, as I argue below, he was not on notice that his conduct was subject to criminal sanction.

3.   The offenses at issues in Merritt occurred in 2006. Viewing of child pornography was criminalized in the 2012 MCM, by Exec. Order No. 13,593, 76 Fed. Reg. 78,451, 78,458-63 (Dec. 16, 2011).

4.   Appellee denied that he was trying to simulate acts with a minor. He specifically stated, “I can't see myself doing that to an actual child.”

5.   Nor does Appellee's conduct implicate consent in any way given the inanimate nature of his sexual object. Therefore, his conduct is not similar to the rape, sexual assault, or sexual abuse of any person, including a child.

6.   The transcript of Appellee's AFOSI interview supports this conclusion:SA Lee: Was there ever a time where, like, you were picturing [the doll] as real, like, and you were in to [sic] it?ACC: Real as in like real child, somebody's daughter. No. No.SA Lee: And no feeling ever went through to viewing any real pornographic materials in relation to that?ACC: No. In the first place, I don't really like actual pornography. And I think child pornography is actual child abuse.SA Andrews: Yeah.ACC: And it kind of seems strange that I have, basically what is a child sex doll, yet that being said, I think child pornography with a real child involved is just disgusting.SA Andrews: So with a doll you think it makes it kind of different.ACC: It does until you start thinking, hey, wait, what am I doing. What is this?

7.   The Court did not hold that the images could not be criminalized under Article 134, only that the plea colloquy failed to establish why protected material was prejudicial to good order and discipline or service discrediting. Moon, 73 M.J. at 388-89.

Judge JOHNSON, with whom Judge HARDY joins in part, dissenting.