Military Panel: Repeal Code’s Sodomy Clause
Washington Blade,
June 8, 2001
By Lou Chibbaro Jr.
A panel of legal and military experts assembled by the National Institute
of Military Justice, a private, nonprofit organization, released a report last
week calling on Congress to repeal a clause in the Uniform Code of Military
Justice that outlaws acts of sodomy between consenting adults.
The 16-page report says the sodomy clause should be replaced with a
"modern statute similar to the laws adopted by many states" and
similar to an updated federal statue that applies to civilians.
The report was released May 30 by the Commission on the 50th Anniversary of
the Uniform Code of Military Justice. The five-member commission consists of a
retired military court judge, a retired Navy captain, a retired Navy rear
admiral, a retired Air Force lieutenant colonel, and a law school professor.
The report addresses a number of legal issues pertaining to the military in
addition to the sodomy statute.
The Servicemembers Legal Defense Network, which assists gay military
personnel, called the commission’s recommendation on the sodomy issue an
important development that will help efforts by activists to change the law to
allow gays to serve openly in the military.
Opponents of President Clinton’s initial proposal in 1993 to allow gays
to serve openly in the military said the proposal would be in conflict with
the UCMJ’s sodomy clause, which is known as Article 125. Opponents argued
that military authorities would be obligated to determine whether gay
servicemembers were engaging in sodomy and thus violating military law.
That same year, Clinton introduced his compromise "don’t ask, don’t
tell" policy, which allows gays to serve in the military as long as they
keep their sexual orientation a secret. The policy also prohibits gay
servicemembers from engaging in same-sex sexual activity, even if they obey
the provision requiring them to keep their sexual orientation confidential.
When Congress adopted its "don’t ask, don’t tell" policy on
gays in the military in 1993, opponents of President Clinton’s initial
proposal to allow gays to serve openly would be in conflict with the UCMJ’s
sodomy clause, which is known as Article 125.
The "don’t ask, don’t tell" policy allows gays to serve in
the military as long as they keep their sexual orientation a secret. The
policy also prohibits gay servicemembers from engaging in same-sex sexual
activity, even if they obey the provision requiring them to keep their sexual
orientation confidential.
"Repealing the [UCMJ sodomy clause] would eliminate one of the major
roadblocks to lifting the ban on gay servicemembers," said SLDN
spokesperson Steve Ralls.
Ralls said the commission report will "carry a lot of
credibility" in military and legal circles because the commission members
are considered highly qualified in their respective fields of military law.
The report says it gathered information on the sodomy question and other
issues through a March 13 public hearing and through the submission of written
testimony by individuals and organizations. Among those testifying at the
hearing was Shara Greer, SLDN’s legal director. Greer called the UCMJ sodomy
provision "a throwback to English common law that has long since been
abandoned by the militaries of the original NATO countries, including Great
Britain, on whose law ours relies."
"Of all the topics that appeared on the commission’s long list of
possible areas for consideration," the commission states in its report,
"the issue of prosecuting consensual sex offense attracted the greatest
number of responses from both individuals and organizations. The commission
concurs with the majority of these assessments in recommending that consensual
sodomy and adultery be eliminated as separate offenses in the UCMJ and the
Manual for Courts-Martial."
"[T]he well-known fact that most adulterous or sodomitical acts
committed by consenting and often married (to each other) military personnel
are not prosecuted at court-martial creates a powerful perception that
prosecution of this sexual behavior is treated in an arbitrary, even
vindictive, manner," the report states. "This perception has been at
the core of the military sex scandals of the last decade."
The report adds, "[T]here remain instances in which consensual sexual
activity, including that which is currently prosecuted under Article 125 ä
may constitute criminal acts in a military context." The report says one
such context would be sexual relations between officers and enlisted persons,
which military authorities have long said disrupts order and discipline within
the chain of command. The report says this type of situation can be addressed
"without the use of provisions specifically targeting sodomy and
adultery."
U.S. Rep. Barney Frank introduced a bill in 1997 to repeal the UCMJ’s
sodomy clause. Frank’s bill died in committee.
The commission’s chair is Walter T. Cox III, former chief judge, U.S.
Court of Military Appeals for the Armed Services. The other members are Ret.
Captain Guy R. Abbate Jr., senior instructor at the Naval Justice School and a
consultant to the Defense Institute of International Legal Studies and the
Naval Justice School; Mary M. Cheh, professor of law, George Washington
University Law School, who serves as a member of the rules committee of the
U.S. Court of Appeals for the Armed Forces; Ret. Rear Admiral John S. Jenkins,
senior associate dean for administrative affairs at the George Washington
University Law School; and Ret. Air Force Lieutenant Colonel Frank Spinner, an
attorney in private practice who represents military personnel in
court-martial trials.
[Home] [News] [US Military]
