April 29, 2005

Pentagon wants to conceal sodomy law in broader code

by Eric Resnick

Washington, D.C.--The Pentagon wants to merge the military ban on oral and anal sex into another part of its code. It hopes the move will get around a Supreme Court ruling against such laws but still keep the measure, which helps justify its ban on open gays.

The Department of Defense sent a memorandum to the House and Senate Armed Services committees on April 7 asking Congress to remove consensual sodomy from a separate section in the Uniform Code of Military Justice, the law governing servicemembers.

Instead of having its own section in the code, called ?Sodomy,? oral and anal sex would be covered by another section on good order and discipline. But it would not be specifically described there.

The memo was leaked to the New York Times, which reported on April 21 that the department was asking Congress to decriminalize sodomy.

Later that day, spokesperson Larry DiRita said it wasn?t asking for that at all.

?The change is . . . what part of the Uniform Code it is identified in,? he said. ?It has to do with the question of identifying the crime by name, as opposed to identifying it in the context of ?good order and discipline?.?

Di Rita also restated the Pentagon?s commitment to ?don?t ask don?t tell.?

Secretary of Defense spokesperson Lt. Col. Joseph Richard said the military?s intent is to move sodomy from its own section of the code to a broader section where specific offenses are not spelled out.

That section, 134, allows for prosecution of ?all disorders and neglects to the prejudice of good order and discipline in the armed forces.?

The ?sodomy? code, Section 125, now defines it as ?unnatural carnal copulation with another person of the same or opposite sex or with an animal.?

Under the new proposal, Section 125 would continue to criminalize sexual contact that is forced, or with children.

Military courts have interpreted ?unnatural carnal copulation? to mean both oral and anal sex, or anything outside penile-vaginal sex.

Violaters had been imprisoned for up to five years, until the U.S. Supreme Court?s 2003 Lawrence v. Texas decision struck down laws against consensual sodomy.

The military sodomy law is still part of all discharges for homosexual conduct. Although it applies to heterosexuals as well, it is rarely used to prosecute them.

The change would allow the armed services to avoid military court rulings against the sodomy law and still prosecute servicemembers for sex acts considered ?unnatural.? Keeping sodomy a crime also preserves a justification for the ?don?t ask don?t tell? policy prohibiting gays and lesbians from serving openly.

According to Richard, the military believes it can?t sustain the constitutionality of the law if it remains spelled out in its own section of the code.

Two significant rulings by military appeals courts since Lawrence have the military concerned.

The first, United States v. Marcum, in August, 2004, upheld Eric P. Marcum?s conviction of consensual sodomy with someone of the same sex in his apartment off base.

That court found that although the military?s sodomy prohibition does not stand up under the rational basis test used in Lawrence, the ?military is, by necessity, a specialized society? where the right to engage in sexual conduct must be tempered ?based on the mission of the military, the need for obedience of orders . . .?

However, the second case, United States v. Bullock, found differently.

That case, decided four months later, used Lawrence to overturn the sodomy conviction of Army Specialist Kenneth M. Bullock, who was tried for having consensual oral sex with a woman in his room.

The Pentagon believes that merging the sodomy law into the more general one will shield it from constitutional scrutiny under the Supreme Court?s 1974 Parker v. Levy decision. That ruling made a military exception to some rulings ?due to the distinct and separate character of military life from civilian life.??

This principle was used to uphold the Marcum ruling and the military believes it would trump the Bullock one.

Richard said the proposed changes were prompted by defense lawyers? ?attacks? on the sodomy law the way it is currently written, which are based on Lawrence.

?As an Article 134 offense, the prosecution can rely on the facts and circumstances themselves to establish ?conduct prejudicial to good order and discipline or service discrediting? or present some evidence to the court aside from the physical act and facts surrounding it,? wrote Richard.

?In other words,? added Richard, with the changes, ?technically and legally, we don?t need anything spelled out or enumerated or listed.?

Richard said the Pentagon will also ask President Bush to approve changes to the Manual of Courts Martial allowing sex acts to be prosecuted under the new section.

A Senate Armed Services Committee staffer said hearings on the proposed changes are unlikely due to time constraints. They will likely be approved to become part of the Defense Authorization Act, which is set to be passed into law by November.

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