The Uniform Code of Military Justice (UCMJ)
This information is excerpted from Freedom to Serve: The Definitive Guide to LGBT Military Service. To download the full guide, click here.
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The UCMJ criminalizes a variety of sexual activities. Like all military policies, the UCMJ should be applied without regard to sexual orientation. For LGB service members, understanding the rules is particularly important. With the repeal of DADT, commands who wish to target LGB service members may resort to misapplying sexual-orientation-neutral policies as a way of continuing to drum out LGB service members.
Sodomy (UCMJ Article 125)
The Senate version of the FY 2012 National Defense Authorization Act includes a provision that would repeal Art. 125, which criminalizes sodomy. Consensual sodomy would no longer be criminal under the UCMJ, while non-consensual sodomy would be criminalized under a revised Art. 120, dealing with sexual assault. Until this provision becomes law and alters the UCMJ, the following information remains current.
The UCMJ prohibits all service members from engaging in sodomy as defined in Art. 125 (primarily oral and anal sex between members of the same or opposite sex). Service members found violating this article can be court-martialed and imprisoned if found guilty. Some confusion about the military’s prosecution of sodomy has arisen following the June 2003 United States Supreme Court decision in Lawrence v. Texas. In that case, the Supreme Court ruled that a Texas sodomy statute prohibiting two persons of the same-sex from engaging in private consensual sexual conduct, and all similar state laws, are unconstitutional.
Following the decision in Lawrence, there were multiple appeals of consensual sodomy convictions in the military court system challenging the constitutionality of Art. 125. In August 2004, the military’s highest criminal court, the Court of Appeals for the Armed Forces (CAAF), ruled in United States v. Marcum that while the Lawrence decision does apply to the military, the military could still prosecute consensual sodomy if the conduct fell outside of protections provided under Lawrence, or if the conduct is prohibited because of additional factors solely relevant to the military context. In other words, CAAF determined that the military could constitutionally continue to prosecute consensual sodomy under limited circumstances. In Marcum, the court ruled that because the accused service member’s involvement was with a subordinate, his conduct was outside the constitutional protection defined by the Supreme Court and therefore his consensual sodomy conviction was correct. This ruling has resulted in confusion as to when consensual sodomy can be constitutionally punished in the military.
Non-consensual sodomy and sodomy with a minor remain fully prosecutable under Art. 125 and other UCMJ provisions.
Service members should operate under the assumption that they can be arrested and prosecuted if caught engaging in sexual activity falling within the definition of sodomy in Article 125 of the UCMJ. Convictions under Article 125 can result in up to five years in prison for each act, punitive discharge, reduction in pay and fines and forfeitures. Service members have gone to prison for violating Article 125 of the UCMJ.
Sexual Misconduct (UCMJ Article 120)
As noted in the section on Art. 125, the Senate version of the FY 2012 National Defense Authorization Act includes a substantial revision of Art. 120, which criminalizes sexual assault and lesser sexual crimes. Until this revision becomes law and alters the UCMJ, the following information remains current.
The UCMJ’s definition of sexual misconduct is broad, criminalizing many types of inappropriate physical contact. Like Art. 133 and Art. 134, however, some of the language in Art. 120 is broad and can subject a service member to improper prosecution for innocent or even accidental behavior.
Wrongful Sexual Contact: In order to be charged with “Wrongful Sexual Contact” a service member must engage in “sexual contact” without “legal justification or lawful authorization.” “Sexual contact” is defined as any “intentional touching” either directly or through clothes, of the “genitalia,” “breast,” “buttocks” or other personal areas. LGB service members need to beware that an accidental collision with another service member could be mistakenly perceived—or purposefully misrepresented—as intentional “sexual contact.”
Indecent Act: Service members can be charged with an “Indecent Act” if they engage in “indecent conduct,” which is in turn defined as “that form of immorality relating to sexual impurity that is grossly vulgar, obscene and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.” This includes “observing” another person without their consent and “contrary to that other person’s reasonable expectation of privacy” in their naked body or while engaged in a sexual act. LBG service members need to beware that an “indecent act” charge could result from someone making a false allegation about leering in the showers or watching a roommate change.
Conduct Unbecoming and General Article (UCMJ Articles 133 and 134)
Service members may also be court-martialed for same-sex sexual conduct under Articles 133 and 134 of the UCMJ. Articles 133 and 134 are referred to as the general articles, and serve as a catch-all for conduct that the military wishes to make illegal but has not been specifically outlawed in any of the other articles.
Art. 133 outlaws “conduct unbecoming an officer and a gentleman.” Art. 134 outlaws conduct that results in the “prejudice of good order and discipline in the armed forces” as well as conduct that “brings discredit upon the armed forces.”
Conduct that has been considered a violation of Articles 133 and 134 includes: adultery, fraternization and soliciting another to commit an offense. For more information on each of these offenses, see the Military Policies section of this Guide.
Under DADT, military authorities would not typically undertake criminal investigations and prosecutions under these articles, but would instead discharge an LGB service member for engaging in activities covered by these articles using DADT. With the repeal of DADT, such investigations and prosecutions should become more common, and service members should take the threat seriously. Not only sex acts, but virtually any physical act with another person can be criminally prosecuted if it can be shown that the act was committed for a sexual or romantic purpose. Convictions under Article 133 or 134 can, in some cases, result in up to five years of imprisonment for each act, a punitive discharge (Bad Conduct discharge or Dishonorable discharge), reduction in pay-grade and fines and forfeitures. People have served time in military prison for engaging in homosexual conduct ruled to be in violation of Articles 133 and 134 of the UCMJ.
The Touch of a Hand – Leads to Prison Time
The risk of imprisonment for same-sex conduct seemed remote to Private James Reyes until he faced court-martial for what he thought was innocent romantic conduct. Private Reyes was sentenced to a year in prison by a military judge in Korea for touching another man’s hand during an off-duty conversation. Private Reyes’ alleged “victim” testified at court martial that the touch was merely the result of a misunderstanding and he did not feel as though he had been assaulted. Private Reyes spent more than a year in prison before SLDN attorneys successfully petitioned for his release through clemency.
Fraternization is an Article 134 offense prohibiting commissioned and warrant officers from having unduly familiar relationships with enlisted members. It can also result in Non-Judicial Punishment (NJP) disciplinary actions under Article 15. The implementing guidelines allow the branches to apply “frat” to enlisted members of different ranks and officers of different ranks, if the relationship is prejudicial to good order and discipline. Fraternization includes both sexual/romantic and business relationships, and applies regardless of the gender of the members involved. The offense is punishable under Article 92 (Failure to obey order or regulation) with maximum punishment of “dismissal, forfeiture of all pay and allowances, and confinement for 2 years.”
Not all contact or association between seniors and subordinates is fraternization; the key is “whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale.” For example, “dating, shared living accommodations, intimate or sexual relations, commercial solicitations, private business partnerships, gambling and borrowing money between officers and enlisted members, regardless of service, are unduly familiar and are prohibited.”
Each branch has its own policies governing fraternization. In the Air Force and Army regulations, fraternization only applies to officer-enlisted relationships. In the Navy, Chief Petty Officers (E-7 through E-9) may be punished for having a personal relationship with E-1 through E-6 enlisted members in their chain of command. Similarly, in the Marines, NCOs can be charged with fraternization for an improper relationship with a subordinate.
Generally, marriage “cures” fraternization. In other words, an officer who is legally married to an enlisted member cannot be charged with fraternization for conduct occurring after the marriage. For LBG service members, it is important to understand that a marriage to someone of the same sex will not “cure” the frat because DOMA prevents that marriage from being recognized as valid. Legally married dual-military gay couples will remain vulnerable to fraternization charges until DOMA is repealed or the Fraternization provisions are changed.
Two things should be kept in mind. First, fraternization does not require a sexual relationship. Second, the standard — “whether the conduct has compromised the chain of command, resulted in the appearance of partiality, or otherwise undermined good order, discipline, authority, or morale” — is a subjective one. These two facts can make service members vulnerable to accusations of fraternization even where there was no improper conduct. They could also cause accusations against a service members mentoring person of a lesser rank. If an individual is out to get a service member because of his or her sexual orientation, an allegation of fraternization may be a relatively easy way to do it.
Adultery is punishable under Article 134, with a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. Adultery is defined as wrongful sexual intercourse between a married person and someone who is not his or her spouse, when the conduct is prejudicial to good order and discipline or brings discredit to the armed forces. Even private and discreet adultery can violate these standards, depending on the circumstances.
Because same-sex marriages are not recognized under DOMA, a service member who is married to a same-sex partner would not be subject to adultery charges for having extramarital sex with another “unmarried” person. However, engaging in any type of penetrative sex with someone in a straight marriage may be considered Adultery. “Sexual intercourse” is not clearly defined in the Manual for Courts Martial for purposes of Adultery charges; it is defined broadly for other sections of the UCMJ to include oral and anal sex, while it is distinguished from sodomy in other sections.
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