Hetero Sodomy Conviction
Upheld
Military courts choose not to apply broadest liberty
principles from Lawrence decision
Gay
City News, March 10, 2005
By Arthur S. Leonard
In yet another exception to a 2003 Supreme Court decision
legalizing sodomy, a high military court, the U.S. Navy-Marine Corps Court of
Criminal Appeals, has upheld the sodomy conviction of a heterosexual marine in
a case arising from events at an American base in Japan.
According to the opinion for the court by Judge David
Wagner, Aviation Boatswain’s Mate Jakarri Avery was living on the base
during divorce proceedings from his wife, a Japanese citizen. Avery
acknowledged to his unit mates that he had both anal and oral sex with two
other Japanese civilian women in his barracks room.
In his decision, Wagner noted that Avery’s wife had
sued him in Japanese court for “redress of injuries she alleged as a result
of the extra-marital affairs. On one occasion there was a confrontation
between [Avery’s] wife and one of the two females at the on-base hotel that
had to be resolved by military police.”
Military authorities prosecuted Avery for sodomy,
adultery and indecent acts, as well as the possession and use of marijuana and
Percocet, a prescription drug. He pleaded guilty and was sentenced to nine
months confinement and a bad-conduct discharge that included forfeiture of pay
and a reduction in grade.
Shortly after his sentencing, the Supreme Court declared,
in a 6-3 opinion in Lawrence v. Texas, that that state’s anti-sodomy law was
unconstitutional, in effect nullifying nationwide other such statutes, long
considered by gay Americans as a vestige of homophobic oppression. Avery
promptly appealed his sodomy conviction, claiming that, based on the language
in the Lawrence ruling, his private adult consensual activity was protected by
the Constitution.
Last year, in the highest military appellate ruling on
the impact of Lawrence on military sodomy prosecutions, United States v.
Marcum, the Court of Appeals for the Armed Forces ruled that Lawrence had not
invalidated Article 125 of the Uniform Code of Military Justice, the military
sodomy law, but had merely narrowed the circumstances in which it could be
used to prosecute uniformed personnel. Under the Marcum approach, sexual
penetration that falls squarely within the parameters of Lawrence—consensual
oral or anal sex—could still be prosecuted if there are military factors
that affect “the nature and reach of the Lawrence liberty interest.” In
the Marcum case, the military high court found that sexual activity between
military personnel of different ranks presented issues of military relevance
justifying prosecution.
Since the Marcum decision, there have been several
military sodomy prosecutions, but in only one case, involving a service member
and a civilian, did a military court find Lawrence to be controlling.
Undoubtedly, Avery was hopeful that this precedent would be found to control
his situation, but the court thought otherwise.
“His subordinates knew about the extra-marital
activities, and local Japanese nationals also knew about the activities. In
this case we find direct and obvious impacts on both the command structure and
the armed forces reputation in the local foreign community resulting from the
acts of sodomy committed by the appellant.”
Apparently, Avery’s candor about his extra-marital
sexual behavior figured into the court’s decision. Not unlike the secrecy
governing the sexual behavior of gay and lesbian service members, perhaps more
discretion would have allowed Avery to avoid prosecution.
It is unclear whether or not Avery intends to appeal his
decision to the military high court.
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