In United States v. Truss, 2011 WL 3891821 (A. Ct. Cim. App.) the appellant was convicted by a military judge of two specifications of sodomy and one specification of assault consummated by battery.
The victim, PFC LY, held a drinking party in his barracks room with some friends. The appellant, who PFC LY recognized, showed up at the party without an invitation. When the party ended and everyone went home, PFC LY fell asleep fully clothed, but failed to lock his door. The appellant returned to the room, woke up the accused, and asked him to "suck my dick." When PFC LY refused, the appellant grabbed PFC LY's head and pushed it toward the appellant's penis and held it there while PFC LY performed oral sodomy on the appellant. The appellant then pulled down PFC LY's pants and anally sodomized him. Finally, when PFC LY again refused the command to "suck my dick," the appellant urinated on PFC LY's face. The military judge found the appellant guilty of Article 125, excepting the words "by force and without consent," and then made the following special finding:
The conduct of the accused occurred in the early morning hours in a barracks room after an evening of drinking alcohol. Both the accused and [PFC LY] were intoxicated. They are both young soldiers that were assigned to the same company. The court does not find consent by [PFC LY], although the court finds a failure of proof beyond a reasonable doubt of the lack of consent.
The issue before the ACCA was when the military judge excepted the words "by force and without consent" from the sodomy specifications, did the guilty findings violate Lawrence v. Texas, 539 U.S. 558 (2003)?
The ACCA held that: "The military judge properly used special findings in this case to clarify for appellate review a potential inconsistency between the general verdict of not guilty of forcible sodomy but guilty of sodomy in light of Lawrence." Id. at 3
Under R.C.M. 918(b), special findings can be issued upon request, or whenever the judge feels they are necessary. They have been found analogous to instructions in a members trial and can clarify "the significance of a particular fact... the application of any presumption ... or the appropriate legal standard." Id. at 2 (citations omitted). In this case the special findings correctly explained how the military judge could find the accused guilty of Article 125, Sodomy, after finding the appellant not guilty of forcible sodomy. Lack of consent was not an element, but a "sentence aggravator" for forcible sodomy which still needed to be proved beyond a reasonable doubt. The special findings made it clear the military judge made a factual finding of no consent, however, the military judge was not able to find that lack of consent beyond a reasonable doubt. Therefore, the accused was not guilty of forcible sodomy but still guilty of the underlying criminal conduct, "unnatural carnal copulation," and the lack of consent during that conduct was enough to make the guilty finding constitutional under Lawerence and United States v. Marcum, 60 MJ. 198 (C.A.A.F. 2004).