Army Appeals Court Overturns
Sodomy Conviction
Court’s Ruling Calls into Question Validity of
Military’s Sodomy Statute
Servicemembers
Legal Defense Network, December 8, 2004
Contact: Steve Ralls
202-328-3244, ext. 116
sralls@sldn.org
Washington, DC—The U.S. Army
Court of Criminal Appeals has overturned a guilty plea of a soldier who
engaged in consensual oral sodomy. In a ruling
issued last week, the court cited the Supreme Court’s decision in Lawrence
v. Texas, which struck down state sodomy laws.
“The Army court’s decision is an encouraging, and
important, first step in recognizing service members’ privacy rights,”
said C. Dixon Osburn, Executive Director of Servicemembers Legal Defense
Network (SLDN). “Private, consensual conduct in the bedroom has no impact on
the battlefield.”
Earlier this year, in United
States v. Marcum, the Court of Appeals for the Armed Forces (CAAF) the
military’s highest court of criminal appeals, indicated that Lawrence
applied to Article 125, but declined to strike down the conviction in that
case. In Marcum, CAAF left open the possibility that Article 125 may be
ruled unconstitutional in a different case with a different set of facts.
In Marcum, CAAF found that the appellant’s
involvement with a subordinate took his conduct outside of the constitutional
protection defined by the Supreme Court in Lawrence because of the
implication of lack of consent. In that decision, however, the court noted
that “constitutional rights generally apply to members of the armed forces
unless by their express terms…they are inapplicable.”
The Army court case, United
States v. Bullock, involved a male service member who engaged in
consensual oral sex with a female civilian in a private military barracks. The
Army has twenty days to appeal the case to the CAAF. The Bullock decision
applied the Marcum decision and concluded the service member’s
conduct fell within his liberty interest to engage in private consensual
conduct.
There are at least thirteen other cases in the military
criminal appeals process involving service members who have been convicted of
consensual sodomy. In the military, every conviction of consensual sodomy,
even between husband and wife, carries a penalty of up to five years
imprisonment.
In 2001, a blue ribbon panel convened to review the
Uniform Code of Military Justice (UCMJ) also called for repeal of Article 125.
The Cox Commission, chaired by retired Judge Walter T. Cox III, called
military sodomy prosecutions “arbitrary, even vindictive.” The Commission
recommended replacing the existing statute with one more closely resembling
civilian prohibitions against forcible sodomy, sexual conduct with a minor and
other serious criminal offenses.
“In Lawrence, the Supreme Court took a clear and
unmistakable view that government intrusion into private intimate
relationships is unconstitutional,” Osburn said. “That right to intimate
privacy should extend to every American, both civilian and military.”
The court’s decision is available online at www.sldn.org.
Servicemembers Legal Defense Network is a national,
non-profit legal services, watchdog and policy organization dedicated to
ending discrimination against and harassment of military personnel affected by
‘Don’t Ask, Don’t Tell’ and related forms of intolerance. For more
information, visit www.sldn.org.
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