Military Sodomy Ban Under Review

Having long since gotten rid of rum and the lash, I suppose this day was inevitable.

uncle-sam-army-recruiting

A headline I never thought I’d see: “Military to Review Sodomy Ban.”  Then again, having long since gotten rid of rum and the lash, I suppose this day was inevitable.

The Pentagon’s chief legal counsel said a nine-month study on gays in the military will likely review rules for troops on sodomy and oral sex.

The Uniform Code of Military Justice prohibits sodomy and oral sex, even among consenting adults and married couples.

Pentagon General Counsel Jeh Johnson, who is helping to lead a study on the military’s “don’t ask, don’t tell” policy, said he planned to review all related aspects of the military legal code.  When asked by Arkansas Democratic Rep. Vic Snyder whether that review will extend to the rules on sodomy and oral sex, Johnson said yes.

For those readers uninitiated in military culture, let me assure you that the ban on oral sex is not vigorously enforced.

Nor, incidentally, is it specifically included in the code.  Oral sex is a form of sodomy, after all.   And sodomy is banned as one of the Punitive Articles under the UCMJ, Article 125:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense.
(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

Amusingly, at least to me, it is listed after maiming but before arson and extortion.  I envision senior officers sitting around a conference table listing offenses that should be banned and just writing them down in the order that they sprang to mind.  But perhaps there was some more systematic rationale.

As to the merits of repealing the ban, it strikes me as inevitable.   We’re going to end the ban on gays serving openly sooner or later — probably sooner.  It would be truly bizarre to end “Don’t Ask, Don’t Tell” and replace it with “okay, fine, but if you have sex you’re going to jail.”

Further, as a recent report noted, current enforcement is arbitrary and capricious.

The Commission on Military Justice recommended that Article 125, which deals with sodomy, be repealed, arguing that “most acts of consensual sodomy committed by consenting military personnel are not prosecuted, creating a perception that prosecution of this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.

Article 125 is enforced, then, either when the convening authority is particularly prudish or as a means of going after a soldier who has otherwise alienated himself from his commander. Thankfully, however, there’s always Article 134 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”).

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Boyd says:

    …having long since gotten rid of rum and the lash…

    Aye, and more’s the pity. In both cases.

  2. kth says:

    Penetration, however slight, is sufficient to complete the offense.

    If memory serves, that phrase appears in the forced confession from the crew of the U.S.S. Pueblo. The idea was to make the confession appear to the outside world to be a joke, hence not in earnest, hence coerced as it surely was.

  3. mike says:

    I have seen it in a few cases as an add on charge in the past few years usually in a rape case or fraternization case. CAAF has indicated that it would probably strike down a straight up consensual sodomy case – i believe the langauge appears in in US v. Markim or US v. Marcus – something like that – in that case it was not strike down b/c it was a staff sergeant and a subordinate and there could be reasons such as coercion or whatever to continue to outlaw such behavior.

  4. Brett says:

    For those readers uninitiated in military culture, let me assure you that the ban on oral sex is not vigorously enforced.

    Heterosexual, homosexual, both? I’m genuinely curious as someone who has never served in the military.

  5. James Joyner says:

    Heterosexual, homosexual, both? I’m genuinely curious as someone who has never served in the military.

    So far as I’m aware, consensual homosexual blowjobs lead to dismissal from the service, not courts martial.

  6. Richard Bottoms says:

    I always thought the reason Bill Clinton survived impeachment is that few American men could honestly say getting head from a woman was a bad thing. The sodomy regs need to be changed because if enforced they’d be locking up everybody. Straight or gay, whatever the couple somebody eats at the Y.

  7. just me says:

    yeah I am willing to be the most common prosecution is probably an add on for fraternization or some type of sexual assault charge.

    But honestly I can’t help but think just about every member of the military would likely fall foul of the sodomy charges where oral sex is prohibited. I know there are some states that have oral sex as part of a sodomy charge still, but they are pretty much obsolete unless they are add ons in sexual assault cases. I know I have seen them when it involves sex with minor charges.

    But consenting adults should pretty much be able to engage in any sexual act they choose without fear of being brought up on charges.

  8. floyd says:

    You mean arson isn’t a form of sodomy?