United States v. Rocha ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Zachary C. ROCHA, Airman
United States Air Force, Appellee
No. 23-0134
Crim. App. No. 40134
Argued October 25, 2023—Decided May 8, 2024
Military Judge: Colin P. Eichenberger
For Appellant: Major Jay S. Peer (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J.
Neil, and Mary Ellen Payne, Esq. (on brief).
For Appellee: Major Spencer R. Nelson (argued);
Captain Samantha P. Golseth (on brief).
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS and Judge MAGGS
joined. Judge HARDY filed a separate dissenting
opinion. Judge JOHNSON filed a separate dissent-
ing opinion, in which Judge HARDY joined in part.
_______________
United States v. Rocha, No. 23-0134/AF
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
During a health and comfort inspection of his Air Force
dormitory room, Appellee was discovered to be in posses-
sion of an anatomically correct sex doll depicting a prepu-
bescent girl. Upon questioning by Air Force Office of Spe-
cial Investigations (AFOSI) agents, Appellee acknowledged
that the doll was “representative of a real life human be-
ing” and admitted to penetrating the child sex doll with his
penis on three separate occasions. A panel of members sit-
ting as a general court-martial convicted Appellee of one
specification of indecent conduct in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2018). The United States Air Force Court of Criminal Ap-
peals (CCA) set aside and dismissed Appellee’s Article 134
charge, holding that Appellee did not have fair notice that
his conduct was criminally sanctionable. The Judge Advo-
cate General of the Air Force (TJAG) subsequently certified
one issue for this Court to review:
Whether the presidentially-enumerated Article
134, UCMJ, offense of indecent conduct provided
Appellee with constitutionally-required fair notice
that committing sexual acts with a child sex doll
was subject to criminal sanction.
United States v. Rocha, 83 M.J. 275 (C.A.A.F. 2023) (certif-
icate for review). We answer the certified issue in the af-
firmative, reverse the judgment of the CCA, and return the
case to TJAG for remand to the CCA for further proceed-
ings consistent with this opinion.
I. Background
While living in an on-base dormitory, Appellee pur-
chased via the internet a childlike sex doll from a company
in China. The doll was made of silicone, stood approxi-
mately four feet tall, and had characteristics of a prepubes-
cent girl, including anatomically correct oral, anal, and
vaginal orifices and small breasts. The doll also came
equipped with a speaker which would emit “moaning”
sounds when activated. After receiving the doll, Appellee
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Opinion of the Court
named it “Adele” and proceeded to clothe it, talk to it, watch
TV with it, and brush its hair.
Approximately three weeks after receiving the doll, Ap-
pellee’s chain of command conducted a health and comfort
inspection of his dormitory room and discovered the doll in
Appellee’s bed. During questioning by AFOSI agents, Ap-
pellee first suggested that he only engaged in nonsexual
activities with the doll. However, upon further questioning,
Appellee admitted to committing sex acts with the doll on
three separate occasions—to include the first night he re-
ceived it—by penetrating it vaginally and anally with his
penis. Appellee was subsequently charged with indecent
conduct for engaging in “sexual acts with a sex doll with
the physical characteristics of a female child.”
At trial, Appellee filed a motion to dismiss and argued
that the indecent conduct specification of Article 134 did
not state an offense because the conduct it alleged as crim-
inal—engaging in sexual acts with a sex doll with the phys-
ical characteristics of a female child—“constitutes private
consensual sexual activity,” was not accompanied by any
aggravating factors, and was therefore constitutionally
protected pursuant to Lawrence v. Texas, 539 U.S. 558(2003). The military judge denied the defense motion, de-
termining that the indecent conduct specification stated an
offense because it alleged the essential elements of the of-
fense and provided protection against double jeopardy. He
further articulated that whether an aggravating circum-
stance exists is a factual determination that must be made
by the trier of fact.
The military judge gave an instruction to the panel
members sitting as a general court-martial that in order to
determine that the alleged conduct was indecent, the panel
must find beyond a reasonable doubt the following aggra-
vating circumstance: “[That] the accused engaged in sexual
acts with a sex doll, with the physical characteristics of a
female child, to simulate sexual acts with a minor.” The
panel subsequently convicted Appellee of one specification
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Opinion of the Court
of indecent conduct in violation of Article 134.1 The mili-
tary judge sentenced Appellee to a bad-conduct discharge,
ninety days of confinement, forfeiture of all pay and allow-
ances, and reduction to E-1. The convening authority took
no action on the findings and approved the sentence.
II. The CCA Appeal
On appeal to the CCA, Appellee raised eight assign-
ments of error, including that he did not have constitution-
ally required fair notice that private sexual acts with a
childlike sex doll was subject to criminal sanction.2 The
CCA agreed with Appellee and stated that his actions did
not include any of the “hallmarks of criminally indecent
conduct” prevalent in the case law—namely, “(1) [the in-
volvement of] minors or others who do not consent or may
not easily either refuse or manifest lack of consent; (2) pros-
titution, contraband, or other precursor or concurrent crim-
inal conduct; and (3) [sexual conduct] in public, or in an
open and notorious manner.” Rocha, 2022 CCA LEXIS 725,
at *15-16, 2022 WL 17730741, at *6 (footnotes omitted).
Further, the CCA stated that it had failed to identify “any-
thing in the [Manual for Courts-Martial, United States
(MCM)], federal law, military case law, military custom
and usage, military regulations, or even state law that
criminalized the type of conduct for which [Appellee] was
convicted.” Id. at *16, 2022 WL 17730741, at *7. Because
the CCA found there was no fair notice, the lower court did
not address the remaining assignments of error, set aside
1 The members acquitted Appellee of an unrelated specifica-
tion of receiving child pornography in violation of Article 134.
2 As he did at the trial court level, Appellee argued at the
CCA that “private masturbation with a doll is constitutionally
protected conduct” under Lawrence, 539 U.S. 558, and United
States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). United States v.
Rocha, No. ACM 40134, 2022 CCA LEXIS 725, at *2, 2022 WL
17730741, at *1 (A.F. Ct. Crim. App. Dec. 16, 2022) (un-
published). Since the CCA’s opinion considered the issue of fair
notice to be dispositive, it did not reach this issue. Id. at *17 n.19,
2022 WL 17730741, at *7 n.19.
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Opinion of the Court
the findings and sentence, and dismissed the charge and
specification with prejudice.
III. Standard of Review
Despite Appellee’s argument to the contrary, this Court
must use a plain error standard of review when reviewing
the applicable rulings of the military judge in this case. Ap-
pellee argues that this Court should engage in de novo re-
view because of the constitutional claim he made at the
trial level and because the certified issue changed the scope
of the question from notice to a question of statutory inter-
pretation. Appellee’s arguments are unpersuasive.
First, the certified issue pertains to whether Appellee
had “fair notice” that his sexual conduct with the doll was
criminal. Second, trial defense counsel failed to raise the
issue of fair notice at trial, thus forfeiting the issue on ap-
peal. United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013)
(reviewing defects in charges—such as claims of lack of fair
notice—for plain error “[w]hen not objected to at trial”).
And third, we note that Appellee conceded in his brief to
the CCA that the correct standard of review is plain error
where “defects in the charges, including fair notice,” were
not objected to at trial, and the case law he cites before this
Court to support his contention that the certified issue is
one of statutory interpretation, thereby requiring de novo
review, is not on point.
Under plain error review, Appellee has the burden of
demonstrating that: “(1) there was error; (2) the error was
plain or obvious; and (3) the error materially prejudiced a
substantial right of [Appellee].” United States v. Wilkins,
71 M.J. 410, 412 (C.A.A.F. 2012). However, in those in-
stances where a clear or obvious error rises to the level of a
constitutional violation, the burden shifts to the govern-
ment to “show that the error was harmless beyond a rea-
sonable doubt.” United States v. Tovarchavez, 78 M.J. 458,
462-63 (C.A.A.F. 2019).
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Opinion of the Court
IV. Applicable Law
The Fifth Amendment prohibits the deprivation of “life,
liberty, or property” without due process. U.S. Const.
amend. V. The Supreme Court has stated that due process
requires a statute to provide “a person of ordinary intelli-
gence” fair notice of prohibited conduct. United States v.
Williams, 553 U.S. 285, 304 (2008). The “touchstone” of fair
notice “is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time
that the defendant’s conduct was criminal.” United States
v. Lanier, 520 U.S. 259, 267 (1997).
The statute under which Appellee was charged is Arti-
cle 134, known as the “General Article.” Article 134, among
other things, criminalizes service discrediting conduct by
servicemembers. United States v. Merritt, 72 M.J. 483, 487
(C.A.A.F. 2013). “[A]s a matter of due process, a service
member must have ‘fair notice that his conduct [is] punish-
able’ before he can be charged under Article 134 with a ser-
vice discrediting offense. This Court has found such notice
in the MCM. . . .” United States v. Vaughan, 58 M.J. 29, 31
(C.A.A.F. 2003) (second alteration in original) (internal
quotation marks omitted) (quoting United States v. Bivins,
49 M.J. 328, 330 (C.A.A.F. 1998)).
In the MCM, the President has enumerated a non-ex-
haustive list of offenses with which a servicemember can
be charged under Article 134. One of these presidentially
enumerated offenses under Article 134 is indecent conduct.
MCM pt. IV, para. 104.b. (2019 ed.). The President listed
the elements of this offense as follows:
(1) That the accused engaged in certain conduct;
(2) That the conduct was indecent;
(3) That under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was
of a nature to bring discredit upon the armed
forces; or (iii) [both].
Id.6
United States v. Rocha, No. 23-013/AF
Opinion of the Court
The President further defined “[i]ndecent” as: “[T]hat
form of immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common propri-
ety, and tends to excite sexual desire or deprave morals
with respect to sexual relations.” MCM pt. IV, para.
104.c.(1). The President also specified that “[i]ndecent con-
duct includes offenses previously proscribed by ‘indecent
acts with another’ except that the presence of another per-
son is no longer required.” MCM pt. IV, para. 104.c.(2) (em-
phasis added).
V. Discussion
In order to address the certified issue, this Court must
first answer the general question of whether the presiden-
tially enumerated offenses in Part IV of the MCM can alone
provide fair notice to servicemembers that certain conduct
is criminal. If so, we then must address the specific ques-
tion of whether the presidentially enumerated offense of
indecent conduct under Article 134 provided Appellee with
fair notice that committing sexual acts with a childlike sex
doll was subject to criminal sanction.
A. Presidentially Enumerated Elements
and Fair Notice
Appellee argues that presidentially enumerated ele-
ments in Part IV of the MCM cannot alone provide fair no-
tice to servicemembers because they are not part of the
statutory language of the UCMJ and thus are not “law.”
Appellee supports this claim by correctly asserting two im-
portant points. First, the President’s enumerations and ex-
planations are not binding on this Court. See United States
v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (“Although MCM
explanations of offenses are not binding on this Court, they
are generally treated as persuasive authority.”). Second,
the President does not have the power to create an offense
under the UCMJ. See United States v. McCormick,
12 C.M.A. 26, 28, 30 C.M.R. 26, 28 (1960) (“The President’s
power as Commander-in-Chief does not embody legislative
authority to provide crimes and offenses.”).
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Opinion of the Court
Appellee’s first point, however, fails to adequately ac-
count for the special importance within the military justice
system of the President’s enumerations. This Court has
stated that “[p]residential narrowing of the ‘general’ article
through examples of how it may be violated is part of why
Article 134, UCMJ” is not considered unconstitutionally
void for vagueness. United States v. Jones, 68 M.J. 465, 472
(C.A.A.F. 2010) (citing Parker v. Levy, 417 U.S. 733, 753-56
(1974)). And importantly, it is this narrowing of the
breadth of Article 134 through these presidential enumer-
ations that provides servicemembers with fair notice of
what conduct is subject to criminal sanction under the stat-
ute. This point is supported by Parker. There, the Supreme
Court “noted that interpretations by this Court, military
authorities, as well as the examples in the [MCM] . . . have
limited the broad reach of the literal language of Article
134,” thus providing fair notice to servicemembers.
Vaughan, 58 M.J. at 31 (citing Parker, 417 U.S. at 753-54).
In terms of Appellee’s second point, the President is not
creating new offenses with his enumeration of examples of
Article 134 offenses. There is a distinction between the
ability to create offenses—thus adding new articles to the
UCMJ—and the ability to enumerate elements that nar-
row the construction of an existing criminal statute. See
Wilson, 76 M.J. at 6 (the President’s power “does not extend
to Part IV of the MCM”). The former is not within the Pres-
ident’s power while the latter is, through his constitutional
authority as commander-in-chief. U.S. Const. art. II, § 2,
cl. 1; see United States v. Davis, 47 M.J. 484, 486 (C.A.A.F.
1998) (deferring to the presidentially enumerated language
of Article 128, UCMJ, 10 U.S.C. § 928 (1994), “[b]ecause
there is no contradiction with the Code, and in deference to
the President's authority and the hierarchy of rights”).
B. Indecent Conduct Under Article 134
Having determined that presidentially enumerated ele-
ments standing alone can provide fair notice to service-
members, we now turn to whether the elements of indecent
conduct under Article 134 provide fair notice that
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Opinion of the Court
committing sexual acts with a childlike sex doll is subject
to criminal sanction.
The President has indicated that Article 134 criminal-
izes “conduct [that is] indecent” and defines “[i]ndecent” as
“that form of immorality relating to sexual impurity which
is grossly vulgar, obscene, and repugnant to common pro-
priety, and tends to excite sexual desire or deprave morals
with respect to sexual relations.” MCM pt. IV, para.
104.c.(1). To be sure, this language is somewhat archaic,
but that does not mean that it is impermissibly arcane. As
the Supreme Court stated in Lanier, the “touchstone” of
our analysis must simply be to determine “whether the
statute . . . made it reasonably clear at the relevant time
that the [accused’s] conduct was criminal.” Lanier, 520 U.S.
at 267 (emphasis added). In other words, absolute precision
is not the standard. Rather, statutes must strike the fine
balance of being “sufficiently definite to give notice of the
required conduct to one who would avoid its penalties” with
the requisite broadness to adequately “deal with untold
and unforeseen variations in factual situations.” Boyce Mo-
tor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952).
It is true that in light of our changing society, the
boundary between what sexual conduct is “indecent” and
what sexual conduct is not “indecent” may be so amorphous
as to leave a servicemember of ordinary intelligence with-
out sufficient notice of whether a specific act he or she
wishes to engage in is subject to criminal sanction under
the UCMJ. That, however, is not the case here. Simply
stated, the elements and accompanying definition of “inde-
cent” provide servicemembers with fair notice that the spe-
cific act of penetrating with one’s penis the anal and vagi-
nal orifices of a lifelike sex doll with the physical
characteristics of a prepubescent child is, indeed, prohib-
ited under Article 134.
The conclusion that Appellee had fair notice that his
conduct was criminally actionable is further supported by
the fact that closely similar conduct is proscribed by stat-
ute. For example, under Article 134, knowingly possessing
an “obscene visual depiction of a minor engaging in
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Opinion of the Court
sexually explicit conduct” constitutes a child pornography
offense. MCM pt. IV, para. 95.c.(4). Therefore, it would re-
quire no significant leap of logic for a servicemember of or-
dinary intelligence to conclude that knowingly possessing
a visual depiction of a minor in the form of a lifelike child
sex doll with vaginal and anal orifices, and then engaging
in sexually explicit conduct with that child sex doll, would
similarly be criminally actionable. This is particularly so
because the President has clarified in the MCM that the
possession of obscene images may be criminally actionable
even when they “may not actually involve minors, but ei-
ther resemble or are staged to appear so.” Id. pt. IV, para.
95.c.(1) (emphasis added).
Moreover, although not dispositive, the facts in this
case paint a convincing portrait that Appellee actually
knew he was dealing with an item that closely resembled a
minor and that his conduct would be considered “indecent”
by a person of ordinary intelligence.3 For example, Appel-
lee acknowledged that the doll was “representative of a
real-life human being” and that it was “obvious” that the
sex doll he had purchased looked like a child. Further, Ap-
pellee had the doll shipped to an off-base address because
“it’s obvious it’s not good to have something like that on a
military base.” Although “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,” Merritt, 72 M.J. at 487, Appellee’s
own statements provide additional context for the conclu-
sion that he knew that engaging in sexual acts with a child-
like sex doll was illegal and that other servicemembers of
ordinary intelligence also would perceive his behavior as
criminally sanctionable.
3 Indeed, one of the noncommissioned officers who first dis-
covered the doll in Appellee’s bed testified that he found it so
lifelike that, when he first saw it, he “gasped a little bit [and]
stepped back.” He further stated that “at the time [I saw the doll]
my granddaughter was 3 years old and it looked just like her to
me or very similar.”
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Opinion of the Court
Based upon this analysis, we conclude that the presi-
dentially enumerated language of indecent conduct under
Article 134 was sufficient by itself to provide fair notice
that Appellee’s conduct was criminally sanctionable. It
therefore is irrelevant that the Government cannot point
to state or federal laws that existed at the time of the inci-
dent which criminalized possession or sex with a child sex
doll. Accordingly, we hold that the presidentially enumer-
ated elements and definitions of Article 134 provide fair no-
tice to servicemembers of ordinary intelligence that engag-
ing in sexual acts with a lifelike child sex doll falls squarely
within the President’s definition of indecent conduct.4
VI. Judgment
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The case is returned to the
Judge Advocate General of the Air Force for remand to the
United States Air Force Court of Criminal Appeals with in-
structions to: (1) determine whether Appellee had a consti-
tutionally protected liberty interest under Lawrence v.
Texas, 539 U.S. 558 (2003), to privately engage in sexual
activity with a childlike sex doll; and (2) address any other
issues previously raised by Appellee before the United
States Air Force Court of Criminal Appeals that were
mooted by the lower court’s prior decision to overturn the
conviction.
4 Appellee devotes a substantial portion of his brief to
asserting that his behavior is constitutionally protected under
Lawrence, 539 U.S. 558, and its companion case in this Court,
Marcum, 60 M.J. 198. However, this argument conflates the
issue of whether Appellee had fair notice that his conduct met
the listed elements of the enumerated offense of indecent
conduct with the entirely separate issue of whether Appellee’s
conduct was constitutionally protected. Moreover, it is not the
role of this Court to decide this matter prior to the CCA
employing its factfinding authority. See Article 67, UCMJ, 10
U.S.C. § 867 (2018); Article 66, UCMJ, 10 U.S.C. § 866(2018). Therefore, we remand the case to the CCA with
instructions to determine, in the first instance, whether
Appellee’s behavior is constitutionally protected.
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United States v. Rocha, No. 23-0134/AF
Judge HARDY, dissenting.
Because I agree that Appellee did not have fair notice
that the charged conduct was criminal, I join Part II.A. of
Judge Johnson’s well-reasoned dissent. 1 I write separately
to express my concerns about the unreasonably broad scope
of this Court’s jurisprudence with respect to charges
brought under clause 2 of Article 134, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 934.
The Government charged Appellee with a criminal of-
fense in this case because it believed that the way Appellee
masturbated—in the privacy of his own personal bedroom
and unbeknownst to anyone—was indecent and therefore
was “of a nature to bring discredit upon the armed forces.”
Article 134, UCMJ. Although Appellant’s criminal liability
hinged on the Government proving the terminal element of
Article 134, UCMJ, beyond a reasonable doubt, the Gov-
ernment offered no theory, either through evidence or
through argument, to explain why Appellee’s entirely pri-
vate conduct was service discrediting in nature.
The criminalization of Appellee’s private conduct was
only possible because of this Court’s decision in United
States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011), which au-
thorized the Government’s cavalier approach toward the
terminal element of the clause 2, Article 134 charge in this
case. In Phillips, the Court concluded that “[t]he focus of
clause 2 is on the ‘nature’ of the conduct, whether the ac-
cused’s conduct would tend to bring discredit on the armed
forces if known by the public, not whether it was in fact so
known.” Id. at 165-66. The Court further held that “proof
of the conduct itself may be sufficient for a rational trier of
fact to conclude beyond a reasonable doubt that, under all
the circumstances, it was of a nature to bring discredit
upon the armed forces.” Id. at 163.
This case illustrates the consequences of the Court’s
faulty reasoning in Phillips. This Court has repeatedly
1 I decline to join the portion of Judge Johnson’s opinion ad-
dressing Appellee’s First Amendment claim only because I be-
lieve that this case can be fully resolved on nonconstitutional
grounds.
United States v. Rocha, No. 23-0134/AF
Judge HARDY, dissenting
acknowledged “that the Constitution demands that the
Government prove every element of an Article 134 of-
fense—including the second or ‘terminal’ element—beyond
a reasonable doubt.” United States v. Richard, 82 M.J. 473,
476 (C.A.A.F. 2022); see also United States v. Fosler, 70
M.J. 225, 226 (C.A.A.F. 2011); United States v. Wilcox, 66
M.J. 442, 448 (C.A.A.F. 2008). But Phillips enables the gov-
ernment to secure a conviction under clause 2 of Article
134, UCMJ, without making any attempt to litigate the ter-
minal element. Here, the Government offered evidence and
argument to prove the first two elements of the enumer-
ated offense—that Appellee engaged in certain conduct and
that the conduct was indecent—but relied solely on Phillips
to carry its burden of proof as to whether Appellee’s con-
duct was of a nature to bring discredit upon the armed
forces. I do not see how relieving the Government entirely
of its burden of proof for an element of an offense satisfies
due process. See In re Winship, 397 U.S. 358, 364 (1970)
(“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he
is charged.”).
Absent a basis in evidence and argument to conclude
beyond a reasonable doubt that Appellee’s entirely private
conduct was of a service discrediting nature, Phillips au-
thorized the trier of fact to draw this conclusion instead by
evaluating whether Appellant’s conduct itself “would tend
to bring discredit on the armed forces if known by the pub-
lic.” 70 M.J. at 166 (first emphasis added). But such a con-
clusion comports neither with due process nor with com-
mon sense. As a matter of due process, I do not see how a
finding that conduct would have a “tendency” to bring dis-
credit upon the service is consistent with proving the ter-
minal element beyond a reasonable doubt. Allowing a find-
ing of guilt based on a finding that the charged conduct
might be service discrediting—in a hypothetical world
where the facts of the case were different from those pre-
sented—is a far lower burden than requiring the govern-
ment to prove that the conduct was “of a nature to bring
discredit upon the armed forces.” Article 134, UCMJ.
2
United States v. Rocha, No. 23-0134/AF
Judge HARDY, dissenting
As a matter of common sense, entirely private conduct
cannot discredit the military—and is therefore not “of a na-
ture” to do so—exactly because no one knows about it. Ar-
ticle 134, UCMJ. The Court’s contrary holding in Phillips
disregards the private nature of the charged conduct with-
out any legal or logical justification. Authorizing convic-
tions based on whether a defendant’s purely private con-
duct would tend to “bring the service into disrepute” or tend
to “lower it in public esteem” if his conduct were to some-
how become public knowledge mischaracterizes the true
nature of the conduct and masks as proof what is merely
conjecture. See Manual for Courts-Martial, United States
pt. IV, para. 91.c.(3) (2019 ed.) (defining conduct of a nature
to bring discredit to the armed forces).
“In the administration of criminal justice, courts must
carefully guard against dilution of the principle that guilt
is to be established by probative evidence and beyond a
reasonable doubt.” Estelle v. Williams, 425 U.S. 501, 503
(1976) (citing In re Winship, 397 U.S. 358, 364 (1970)). As
this case illustrates, Phillips dilutes the government’s
burden of proof as to whether a defendant’s conduct
charged under clause 2 of Article 134, UCMJ, was “of a
nature to bring discredit upon the armed forces.” I continue
to believe that this Court should reconsider whether
Phillips is consistent with due process and its own
Article 134 jurisprudence.
3
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, with whom Judge HARDY joins in
part, dissenting.
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 pro-
tected 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 cor-
rectly 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 valid-
ity 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 chal-
lenge to the same statute which was fully litigated. Id. In
that context, the Supreme Court determined that, in reas-
serting 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. Na-
tional Railroad Passenger Corp., 513 U.S. 374, 379 (1995)).
Moreover, the Court noted, the facial and as-applied claims
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
were inextricably intertwined where “Citizens United has
preserved its First Amendment challenge to [the stat-
ute] as applied to the facts of its case; and given all the cir-
cumstances, we cannot easily address that issue without
assuming a premise—the permissibility of restricting cor-
porate 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 inter-
est under Lawrence in his private possession of, and pri-
vate masturbatory conduct with, the doll. The gist of his
arguments was that he reasonably believed he was engag-
ing in private, protected conduct. For example, he argued
that “it is widely understood that people still hold their pri-
vacy 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 di-
minished because they bought a product online simply by
the nature of purchasing the product”; and “[i]f the Govern-
ment’s charging scheme here is sufficient, then they could
simply charge any conduct as indecent no matter how pri-
vate and no matter whether the sexual nature of the con-
duct 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 tak-
ing his behavior outside the protection of Lawrence. Fur-
thermore, 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 no-
tice by raising a motion to dismiss for failure to state an
offense based on Lawrence. 2 Therefore, de novo review is
appropriate.
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
2
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
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 enumer-
ated elements of “indecent conduct” and definition of “inde-
cent.” According to the Court, this conclusion is supported
by the fact that possession of child pornography—charac-
terized by the Court as “closely similar” to the charged con-
duct—is proscribed by statute. In other words, because pos-
session 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 reason-
able servicemember of ordinary intelligence would know
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
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
that possession of an anatomically correct childlike sex doll
and engaging in sexual activity with that doll would simi-
larly be criminally actionable.
I do not accept the Court’s premise that the charged con-
duct 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 por-
nography was subject to criminal sanction where military
case law had long recognized possession of child pornogra-
phy 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 quota-
tion marks omitted). 3 As the Court explained:
Underlying this argument is the government’s
theory that there is an aura of criminality sur-
rounding child pornography which placed service-
members 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 no-
tice. While actions related to viewing child por-
nography 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 con-
duct. 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 stand-
ard and adhere to the traditional sources of notice
set forth in Vaughan.
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
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
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 sex-
ually suggestive way,’ ” was subject to criminal sanction.
73 M.J. at 2. The evidence consisted of “twenty unique im-
ages of minor girls, none of which depicts nudity. Rather,
these images depict minor girls posing provocatively in re-
vealing clothing, with highly distasteful captions superim-
posed on the images.” Id. (footnote omitted). The Court re-
viewed 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 regu-
lated 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.) (em-
phasis added). And, as the Court correctly notes, service-
members may be convicted under Article 134 of child por-
nography 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 de-
piction 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
5
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
minor.” 4 There is no evidence that those acts were viewed
or recorded by anyone, or that any such recording was pro-
duced, viewed, possessed, or distributed. In short, the
charged conduct of privately using a toy for personal sexual
gratification is not similar to possessing, viewing, produc-
ing or distributing depictions of children engaged in sex-
ually 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 punish-
able offense. Nor does the statutory or enumerated lan-
guage 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 protec-
tion”); United States v. Marcum, 60 M.J. 198, 206-07
(C.A.A.F. 2004) (recognizing that wholly private, consen-
sual 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 con-
duct. However, the Government points to five subsequently
enacted state statutes that criminalize the possession of
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
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
child sex dolls, and two failed attempts to enact similar leg-
islation in Congress. While the Court dismisses these leg-
islative developments as irrelevant, in my view the fact
that five states enacted such legislation after Appellee en-
gaged in the charged conduct, and that Congress was una-
ble 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, Appel-
lee’s statements merely expressed embarrassment about
his relationship to the doll even as he distinguished his con-
duct 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 inter-
view, Appellee explained that he found the doll on a web-
site 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 Ap-
pellee when it arrived.
The AFOSI agents pressed Appellee to explain what
was wrong with having the doll. Appellee said, “I can un-
derstand 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
7
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
have something that I can talk to that looks like a real per-
son 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 por-
nography, he explained that he did not like actual pornog-
raphy and he believed child pornography was “actual child
abuse.”
Viewed in the context of an interrogation based on sus-
picion 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
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 pornog-
raphy. 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 pornogra-
phy 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?
8
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
Just as Appellee “[didn’t] know exactly what the prob-
lem [was],” the command representatives and AFOSI
agents who were involved in the search that led to the dis-
covery 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, par-
tially 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.” An-
other 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, in-
cluding 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 un-
covered 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
9
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
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 bed-
room 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 of-
fense, because the “proximity” of his private conduct to
child pornography is not enough to have placed him on no-
tice that his conduct was proscribed. Merritt, 72 M.J. at
488. This conclusion is not undermined by the fact that Ap-
pellee 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 ques-
tion 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 deserv-
ing 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 constitu-
tional 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, re-
strictions on obscene material must be “carefully limited.”
10
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
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 insuffi-
cient justification for such a drastic invasion of personal
liberties guaranteed by the First and Fourteenth Amend-
ments”). 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 distin-
guished cases involving public distribution of obscene ma-
terials and held that the First and Fourteenth Amend-
ments prohibit making the mere private possession of
obscene material a crime. Id. at 566-67 (finding “little em-
pirical 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-dis-
crediting 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 proscrib-
ing 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.
11United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
396, 402 (C.A.A.F. 2019); see also id. at 398 (affirming con-
victions under Article 133, UCMJ, 10 U.S.C. § 933 (2012),
where the accused “engaged in a series of online conversa-
tions where he described in lurid detail the abuse, moles-
tation, 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 con-
viction 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 convic-
tion under Article 133, UCMJ, where the accused threat-
ened to disclose a woman’s nude photos and sexual indis-
cretions to her parents if she terminated their relationship;
indecent language was “not simply amorous banter be-
tween two long-time lovers; rather, it was demeaning vul-
garity 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 step-
daughter if he could get in bed with her).
The Court has also limited Stanley’s application to con-
duct 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 inter-
est 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 applica-
tion to the military, Appellee’s conduct falls within the pro-
tection afforded private consensual sexual conduct within
the home. First, unlike the appellant in Bowersox, Appellee
12
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
did not share a barracks room and did not show anyone the
doll or share what he did with the doll. The doll was discov-
ered in Appellee’s single-occupancy military dorm bed-
room, 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 in-
terest 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 sex-
ual 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 search-
ing pornographic websites for “rape sleep” and “drugged
sleep” and told the military judge that watching such vid-
eos 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 neces-
sarily lose their First Amendment protection,” the Court
concluded that the accused’s conduct “occupies a constitu-
tional gray area” such that the military judge erred by fail-
ing 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
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.
13
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
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 con-
sent might not easily be refused. It does not in-
volve 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 mili-
tary. 60 M.J. at 205. The Court set out three factors to con-
sider in determining whether private consensual sexual ac-
tivity 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 en-
compassed any of the behavior or factors that were identi-
fied 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 relation-
ships 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 with-
out 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, en-
gaged in the conduct with a subordinate airman. 60 M.J. at
14
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
208. “While servicemembers clearly retain a liberty inter-
est to engage in certain intimate sexual conduct, ‘this right
must be tempered in a military setting based on the mis-
sion 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 con-
stitutional protection involved an act of sexual intimacy be-
tween two individuals in a wholly private setting without
more. Lawrence did not establish a presumptive constitu-
tional 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 consen-
sual sexual activity is not punishable as an indecent act
absent aggravating circumstances” such as open and noto-
rious sexual activity. Id. at 205. Thus, this Court has up-
held 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 pres-
ence of a third party whom they allowed to record the sex-
ual activity); Meakin, 78 M.J. at 403 (rejecting the argu-
ment “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 inter-
course 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 ev-
idence 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
15
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
convictions for private sexual conduct where other aggra-
vating 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 par-
ticipant “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 appel-
lant “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 commit-
ted sexual acts on a human corpse properly stated an of-
fense under Article 134, UCMJ).
The aggravating factors limiting the application of Law-
rence 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 be-
tween Appellee’s conduct and the military environment or
mission. The Government tries to rescue its case by posit-
ing that “[i]f private possession of virtual child pornogra-
phy can be constitutionally prosecuted in the military un-
der 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 anal-
ogy would be: if private possession of virtual child pornog-
raphy 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 pos-
session of a child sex doll, nor is it clear under what article
such a charge would arise, and even the sergeants who con-
ducted 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
16
United States v. Rocha, No. 23-0134/AF
Judge JOHNSON, dissenting
possession of obscene material—if the doll can be charac-
terized as such.
III. Conclusion
For the foregoing reasons, I would affirm the decision of
the United States Air Force Court of Criminal Appeals.
17