23 August 2004

Bad Timing

The Court of Appeals for the Armed Forces has just opined that Article 125 of the Uniform Code of Military Justice, which prohibits "sodomy" (and there is a technical definition, but it's not relevant here—just assume "homosexual conduct" and leave it at that), does not violate the ill-written opinion in Lawrence, and is thus not unconstitutional. Yet. Maybe. Carefully hedged and probably limited to the facts.

Over at Intel Dump, Phil Carter gives a good summary of the opinion and the context. Where we differ, though, is in the technical result that should result. The critical fact here is that the party who "requested" sex was substantially senior in rank to the other party. (They were both still enlisted, so this isn't "fraternization"—at least one individual must be an officer, and only an officer can be charged.) The court found that this meant that any consent was illusory, and that therefore Lawrence—which is limited to consensual conduct—doesn't apply. Technically, though, the Article 125 issue should have been dropped in favor of the lesser-included offense of Article 134 (Conduct Prejudicial to Good Order and Discipline). The CAAF's description of the charges and findings is illuminating:

[D]ereliction of duty by providing alcohol to individuals under the age of 21, non-forcible sodomy, forcible sodomy, assault consummated by a battery, indecent assault, and three specifications of committing indecent acts in violation of Articles 92, 125, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 925, 928, and 934 (2000), respectively. Appellant was sentenced to confinement for 10 years, a dishonorable discharge, total forfeitures, and reduction to the lowest enlisted grade. The convening authority reduced the confinement to six years, but otherwise approved the findings and sentence.

US v. Marcum, No. 02-0944 (CAAF 23 Aug 2004), slip op. at 2. The CAAF should simply have evaded the Constitutional issue, because all that this decision will itself do is prejudice good order and discipline. What this sorry procedural quagmire says about the wisdom of the relevant command authority and JAG is even less favorable; but then, it was at a SAC base (or what used to be SAC), where erring is human, but forgiving is not SAC policy. The convening authority screwed up by "piling on": because the "non-forcible sodomy" count didn't add to the potential sentence, nor act as the only means of getting certain evidence in, nor accurately reflect the scope of the alleged misconduct.

I would also quibble with the assertion that Article 125 was adopted "under Bowers," which is incorrect. Article 125 in its present form came into the Code in 1968; Bowers wasn't decided until 1986. But that's a quibble; my position remains that the military needs to clean its act up on nonconsensual sexual misconduct before labelling any variety of consensual conduct as misconduct. The military authorities need to try counseling a rape victim and telling that victim that no charges will be filed because the evidence isn't good enough, then watching the effect when a long-serving individual with an excellent record gets discharged for consensual homosexual conduct with a civilian off-base.