More on providency and “sodomy”

The C. G. Ct. Crim. Apps. has issued an unpublished decision in United States v. Whitaker, in which it discusses whether:

Appellant’s conviction under Article 125, UCMJ, for consensual sodomy should be dismissed because the military judge failed to discuss the corresponding liberty interest during the providence inquiry.

The court concluded it was proper to dismiss the charge.

This was a case of consensual sodomy.  The charge did not allege “without consent” and that was not discussed during the providence inquiry.  The case discusses application of United States v. Hartman.  The court did not agree with the government argument, and:

The military judge did not explain to or discuss with Appellant why his conduct fell outside the bounds of the constitutionally protected liberty interest, and Appellant did not acknowledge that his conduct was outside the bounds of the constitutionally protected liberty interest.  Accordingly, we hold Appellant’s guilty plea to sodomy was improvident, and we set aside the conviction.

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