Last edited: February 14, 2005


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 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.


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