Tuesday, April 26, 2005

What's Next to Go, Article 114? 

Eugene Volokh waxes longingly on a NYT report of an end to sodomy prohibitions in the UCMJ (Article 125). The DoD responded that it was only recommending the "laws prohibiting consensual sodomy be moved from one section ... to another." What I actually suspect (and Volokh reader Paul Johnson, a former JAG, does as well) is that the recommendation ammounts to the removal of consensual sodomy from the punitive articles under 125 and including it as an element under the General Article (Article 134), similar to how matters such as adultery, wrongful cohabitation, indecent exposure, indecent language and indecent acts with another are currently addressed. This has the effect of relegating prosecution of the act only to those circumstances where it is contrary to good order and discipline or brings discredit upon the service. In most cases, I would imagine it would be an "add-on" to other charges (prostitution, indecent exposure, adultery, fraternization, etc.)

I have an interesting perspective from which to speak on consensual sodomy and the UCMJ as I once sat a Courts Martial where Article 125 was the only offense of which the accused was found guilty, and then by his own written testimony. The situation involved luring another's girlfriend into a barracks room, plying her with Bacardi 151 and then possibly raping her after she passed out. The prosecution didn't push too hard on the other counts, so we always suspected he cut a deal to testify against his room mate. Even if he didn't do the rape, though, he got himself into a stupid situation where things were out of his control, so I didn't feel too bad using the hammer available to let this guy know he needed to rethink his priorities.

Despite my personal experience, I have no doubt that Eugene Volokh is correct in his assessment that consensual sodomy has long been used to implement the services' prohibition on homosexuals, but its just one tool among many. Besides the fact that the vast majority of people leaving the service because they're gay do so under an Admin discharge, if it came to invoking punitive articles of the UCMJ it is much easier to prove fraudulent enlistment than sodomy. Also, giving someone a Dishonorable Discharge as a result of Courts Martial requires the agreement of the members that the punishment fits the crime. While we had one hard-line member who wanted the kid to do hard time for his knobber, that certainly wasn't the majority opinion. Likewise, in a case of pure consensual sodomy without the background and circumstances in the case I sat can anyone reasonably conceive of an entire court wanting to ruin the accused future simply because he likes his bread buttered on the other side? The military may be authoritarian, but it is generally fair and proportional and slapping a young man with a felony conviction and a BCD for getting caught in the head with his pants around his ankles is neither.

In summary, just remember this is only a recommendation, so don't go gettin' your freak on just yet. Or at least, don't tell!

Oh, and Article 114 has always been one of my favorites.

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