Although states can no longer criminally prosecute people for engaging in consensual sodomy (oral and anal sex), sodomy remains a crime in the military. While there have been no prosecutions in the past few years against any service people on the basis of consensual contact that does not otherwise violate military law (such as prohibitions against fraternizing between subordinates and superiors), many people in the service and gay rights advocates would like to see the law (Article 125) repealed. For general information on sodomy laws, see Sodomy Laws.
The legal status of gay people, both in and outside of the military, has changed dramatically in a fairly short period of time. In Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court struck down the state’s law criminalizing consensual sodomy between people of the same sex, on the basis that it violated the constitutional rights to liberty and privacy guaranteed by the Due Process Clause of the Fourteenth Amendment. In 2010, President Obama repealed “Don’t Ask, Don’t Tell,” which had prevented gay service members from serving openly. After the US Supreme Court struck down the Defense of Marriage Act (United States v. Windsor, 133 S.Ct. 2675 (2013)), the Department of Defense recognized same-sex spouses for the purpose of federal benefits. But, homosexual sexual contact remains technically prohibited under military law.
Under the Uniform Code of Military Justice, Article 125, sodomy or “unnatural carnal copulation” is a crime, whether or not it is consensual. The military prohibition against sodomy includes oral and anal sex, as well as sex with animals. Sodomy under Article 125 can take three forms: forcible (without the other person’s consent), underage (with a child under age 16), and consensual. Article 125 applies equally to couples of the same or opposite sex. Thus far, lawmakers’ attempts to repeal Article 125 have not been successful, with some people on the opposing side painting any repeal as an attempt to legalize bestiality.
Some proponents of Article 125 have urged that it should be kept on the books as a tool to combat sexual assault. However, in 2005, Congress enacted Article 120 to prohibit all forcible or nonconsensual sexual contact of any kind by people in the service. The new article overlaps with Article 125’s prohibition of underage and forcible sodomy and it appears that such cases could be prosecuted under either or both articles. Article 125 thus exists onlyto criminalize consensual sexual contact.
Many legal experts and even some military officials have stated that the law is basically unenforceable as it applies to consensual sexual relations of gay and lesbian couples. Nonetheless, after Lawrence v. Texas, military courts have continued to prosecute sodomy and convictions have been upheld on the basis that the military ban on sodomy is constitutional as it applies to the defendants because, in those cases, the behavior had a negative affect on morale and good order in the military. (United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).)
Both homosexual and heterosexual sodomy has been prosecuted. Practically, prosecutions have targeted nonconsensual conduct, relationships between superiors and subordinates, or behavior in the wake of alcohol-fueled partying. Nonetheless, for now at least, sodomy between consenting adults may still be a crime in the military. Given the recent media coverage of sexual assault in the military, one would hope that prosecutions would focus on actual forcible and nonconsensual sex crimes, rather than consensual intimate contact between (sometimes married) adults.
A conviction under military law for consensual sodomy is punishable by five years of confinement. It is considered a felony for purposes of state and federal law, and carries with it all the collateral consequences of a felony conviction (such as loss of the right to vote and being banned from certain professions).
If you are charged with sodomy under the Uniform Code of Military Justice, you should talk to a criminal defense attorney with experience handling military cases. An attorney can tell you what to expect and how to best protect your legal rights.