Posted on 10/26/2009 1:09:41 PM PDT by Jet Jaguar
A panel of legal scholars has suggested that Congress remove sodomy as a crime punishable under the Uniform Code of Military Justice, a recommendation that could boost efforts to end a ban on gays serving openly in the U.S. military.
The Commission on Military Justice recommended that Article 125, which deals with sodomy, be repealed, arguing that “most acts of consensual sodomy committed by consenting military personnel are not prosecuted, creating a perception that prosecution of this sexual behavior is arbitrary.”
In its report — dated October 2009 — the commission suggested several changes be made to the UCMJ, including a requirement that law enforcement officials videotape interrogations. The panel’s discussion of Article 125 has gotten the attention of “don’t ask, don’t tell” opponents.
“Public opinion about private, consensual sexual conduct has shifted dramatically since the military sodomy ban was written into law almost a hundred years ago,” according to Nathaniel Frank, a senior research fellow at the Palm Center, a University of California, Santa Barbara, research institute focusing on gays and the military.
“To say that gays should be banned from the military for this outdated reason makes no sense,” Frank was quoted as saying in a center news release.
It’s the second time the commission recommended repealing the law, the first time was in 2001.
Sodomy is defined in the Manual for Courts-Martial as “unnatural copulation with another person of the same or opposite sex.” Under the UCMJ, sodomy — which includes oral sex — is considered a criminal act, even among consenting adults and married couples.
“The vast majority of heterosexuals engage in sodomy as defined in Article 125 and the Manual for Courts-Martial,” said Kevin Nix, a spokesman for the Servicemembers Legal Defense Network. The organization strongly opposes both “don’t ask, don’t tell” and the sodomy law.
“In fact, it appears that the majority of people prosecuted under Article 125 are straight,” Nix said in an e-mail to Stars and Stripes. He described the law as “a legal anachronism” and said it was selectively enforced.
A repeal of the sodomy law is long overdue, according to Walter T. Cox, who heads the military justice panel. Cox is a former chief justice of the U.S. Court of Appeals for the Armed Forces.
“In my judgment, it causes people to disrespect the law when you have a law in place that people don’t agree with and don’t obey,” Cox said in a telephone interview.
Pointing to the fact that several changes recently have been made to Article 120 of the UCMJ in regard to prosecution of rape, sexual assault and other sexual misconduct, the panel argues, “there is no need for a separate provision making sodomy a military crime.”
“You’re not giving anything away by repealing [Article 125],” Cox said.
In its report, the commission also mentioned a 2003 Supreme Court ruling — Lawrence vs. Texas — that found a Texas law that prohibited sexual acts between same-sex couples was unconstitutional. Because of the ruling, the commission argues, “the provision of Article 125 that punishes consensual sodomy is in doubt.”
The report is sponsored by the National Institute for Military Justice and the American Bar Association.
Any changes to the UCMJ have to be approved by Congress and signed into law by executive order.
Cox said he’s unsure if Article 125 will be repealed.
“The Department of Defense traditionally does not like change. Their mantra is ‘if it’s not broke don’t fix it,’ ” he said.
Unless married military couples are jailed for either oral or anla sex, then the law needs to be removed. It should only apply to same sex oral or anal sex.
We do not need male homosexuals in the services.
“We do not need male homosexuals in the services.”
Or female, for that matter.
Adultery is a handy one to have around, however. It’s easy to meet the standards, and can be used in plea bargaining.
We were informed in navy bootcamp that any sexual act that is *not* missionary sex between husband and wife is technically sodomy and punishable by the UCMJ. I've never heard of anyone going to mast over this though. Adultery and fraternization, yes, but never sodomy.
Fecal matter is one of the major sources of coliform
infections (Ecoli). In fact when it is discovered in
any food the Govt. orders massive recalls. Remember
lettuce, spinach, hamburger, and peanuts?
But the WH feels the Constitution gives them the right
to force health care.
I don't have any problem with any of LGBTT, folks
but I do have a problem with sodomy, whether practiced
by straight or gay couples.
With all our concern of H1N1, antrax, small pox, plague
it does seem strange this panel wants to assist in the
spread of Ecoli. Yes, the Texas court made an
egregious ruling.
Speaking as a former unit legal offficer, I would be inclined to believe that nearly all punishable UCMJ articles are selectively enforced.
What laws, rules, behavior, etc. are NOT selectivity
enforced.
Atty Gen Holder is the first one to come to mind.
“...almost always the affair involves an officer and his/her subordinate,”
In the cases I mentioned, only one involved fraternization; the others were adulterous relationships with civilians, with another member’s wife, and such.
The Lt Gen was notorious for flying his military aircraft halfway across the country several times a month to meet with his mistress (ostensibly to meet with one of his remote units). It continued until the Maj General I worked for (at the base he flew to), refused to let it go.
Yep. That will do it every time. I wouldn't be surprised if a stunt like that not only ended a career but also ended with a little brig time.
To your original point, these things are prosecuted from time to time when it's not a fellow service member who is the "other party". Your personal experience notwithstanding, I'd estimate that few than 2/5ths of these prosecutions involve non-military "parties".
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.