U.S. v. Whitaker, 72 M.J. 292

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record
2. (in conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003))

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. (n conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003))
2. the accused’s plea of guilty to sodomy with a sleeping victim was provident where the stipulation of fact stated that the accused knew that the victim was asleep and an unwilling participant, and there were no facts or statements in the record that were inconsistent with the stipulation; although this fact was neither set forth in the specification nor explored by the military judge during the providence inquiry, the military judge was allowed to consider the stipulation of fact in determining whether the accused’s plea was provident, and whether the accused’s conduct under the circumstances implicated constitutionally protected conduct; considering the stipulation of fact in conjunction with the providence inquiry, which adequately covered the elements of Article 125, UCMJ, there was no substantial basis in law or fact to question the providence of the accused’s plea

Trial Stages: Merits: Guilty Pleas

1. in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record
2. (in conducting a providence inquiry into a guilty plea to sodomy, a military judge did not err in failing to explain why the accused’s conduct was subject to criminal sanction, where the accused admitted in a stipulation of fact to an act of oral sodomy on a sleeping victim; a sleeping victim cannot consent, and nonconsensual sexual activity is simply not protected conduct under Lawrence (539 U.S. 558 (2003))
3. the accused’s plea of guilty to sodomy with a sleeping victim was provident where the stipulation of fact stated that the accused knew that the victim was asleep and an unwilling participant, and there were no facts or statements in the record that were inconsistent with the stipulation; although this fact was neither set forth in the specification nor explored by the military judge during the providence inquiry, the military judge was allowed to consider the stipulation of fact in determining whether the accused’s plea was provident, and whether the accused’s conduct under the circumstances implicated constitutionally protected conduct; considering the stipulation of fact in conjunction with the providence inquiry, which adequately covered the elements of Article 125, UCMJ, there was no substantial basis in law or fact to question the providence of the accused’s plea