Last edited: December 09, 2004

Military Court Overturns Sodomy Law, December 8, 2004

By Doreen Brandt Washington Bureau

Washington—In a case that could have broad implications for ‘Don’t Ask, Don’t Tell’ a military appeals court has overturned the conviction of a soldier for consensual sodomy.

Although the case involved a male Army specialist who was convicted of engaging in oral sex with a female civilian in a military barracks, the appeals court cited last year’s Supreme Court ruling last year that struck down the Texas anti-gay sodomy statute.

The military court’s ruling was made public today and is believed to be the first time that a military court has upheld the right of consenting adults to engage in oral sex in private.

“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. “Private, consensual conduct in the bedroom has no impact on the battlefield.”

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.

“This ruling undercuts the premise of ‘Don’t Ask, Don’t Tell’,” said Washington lawyer David Sheldon, who represents some of the soldiers fighting their dismissal from the armed forces because of gay sexual activity.

Earlier this week 12 lesbian and gay veterans discharged under ‘Don’t Ask, Don’t Tell’ filed suit in Federal Court in Boston seeking reinstatement in the Armed Forces. Each served during the current war on terror, but were dismissed once the military discovered they were gay.

Last week, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that law schools have a right to bar military recruiters from their campuses as a way of protesting the Pentagon policy on gays.

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