Last edited: December 09, 2004

Army Appeals Court Overturns Sodomy Conviction

Court’s Ruling Calls into Question Validity of Military’s Sodomy Statute

Servicemembers Legal Defense Network, December 8, 2004
Contact: Steve Ralls
202-328-3244, ext. 116

Washington, DC—The U.S. Army Court of Criminal Appeals has overturned a guilty plea of a soldier who engaged in consensual oral sodomy. In a ruling issued last week, the court cited the Supreme Court’s decision in Lawrence v. Texas, which struck down state sodomy laws.

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

Earlier this year, in United States v. Marcum, the Court of Appeals for the Armed Forces (CAAF) the military’s highest court of criminal appeals, indicated that Lawrence applied to Article 125, but declined to strike down the conviction in that case. In Marcum, CAAF left open the possibility that Article 125 may be ruled unconstitutional in a different case with a different set of facts.

In Marcum, CAAF found that the appellant’s involvement with a subordinate took his conduct outside of the constitutional protection defined by the Supreme Court in Lawrence because of the implication of lack of consent. In that decision, however, the court noted that “constitutional rights generally apply to members of the armed forces unless by their express terms…they are inapplicable.”

The Army court case, United States v. Bullock, involved a male service member who engaged in consensual oral sex with a female civilian in a private military barracks. The Army has twenty days to appeal the case to the CAAF. The Bullock decision applied the Marcum decision and concluded the service member’s conduct fell within his liberty interest to engage in private consensual conduct.

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.

In 2001, a blue ribbon panel convened to review the Uniform Code of Military Justice (UCMJ) also called for repeal of Article 125. The Cox Commission, chaired by retired Judge Walter T. Cox III, called military sodomy prosecutions “arbitrary, even vindictive.” The Commission recommended replacing the existing statute with one more closely resembling civilian prohibitions against forcible sodomy, sexual conduct with a minor and other serious criminal offenses.

“In Lawrence, the Supreme Court took a clear and unmistakable view that government intrusion into private intimate relationships is unconstitutional,” Osburn said. “That right to intimate privacy should extend to every American, both civilian and military.”

The court’s decision is available online at

Servicemembers Legal Defense Network is a national, non-profit legal services, watchdog and policy organization dedicated to ending discrimination against and harassment of military personnel affected by ‘Don’t Ask, Don’t Tell’ and related forms of intolerance. For more information, visit

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