Issue Date: September 06, 2004

Court upholds sodomy ban
Ruling doesn’t close door on possible future challenges

By Deborah Funk
Times staff writer

The military’s highest court has ruled that the armed forces’ ban on consensual sodomy between both gays and heterosexuals is constitutional in certain cases, despite a Supreme Court ruling last year that struck down state anti-sodomy laws.

However, the U.S. Court of Appeals for the Armed Forces left open the possibility that it might rule differently in future cases involving the military ban on consensual sodomy, codified in Article 125 of the Uniform Code of Military Justice.

“The court sidestepped the issue of whether Article 125 is unconstitutional,” said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which argued on behalf of the defendant in the case, former Air Force Tech. Sgt. Eric Marcum.

The military court found that the sexual relationship Marcum had with a male senior airman who he supervised and rated fell outside the protections of last year’s ruling in Lawrence v. Texas, in which the Supreme Court found that private, homosexual sexual activity between consenting adults is not a crime.

The military court pointed out the Texas case did not involve a situation in which someone “might be coerced” or was in a “situation where he might not easily refuse.”

In that context, “the nuance of military life is significant,” the court wrote.

Air Force policy bars sexual contact between personnel of different ranks in the same chain of command. Because Marcum was the airman’s supervisor and rater, the airman was someone who might be coerced or might not easily refuse, the court said.

Marcum, a former cryptologic linguist stationed at Offutt Air Force Base, Neb., was convicted in 2000 of consensual sodomy and sentenced to 10 years in jail. His sentence later was cut to six years, and he now is on parole. He challenged his conviction last year after the Supreme Court decision in the Texas case.

The military court ruled that Marcum’s case fell within the protections of the Supreme Court ruling in that a jury did not convict him of forcible sodomy, and the act occurred off base and in private.

But the military court also said the fact that Marcum had sex with a direct subordinate ultimately pushed his case outside the protections of the Texas ruling.

The Texas case involved two consenting adults who had a romantic relationship in which the possibility of force was never an issue, and it specifically did not involve people who could be injured or coerced, the military court said. In the Marcum case, the subordinate had slept on Marcum’s couch after a night of drinking and awoke to find the technical sergeant performing oral sex on him.

The airman testified he was too scared to protest.

Despite the military court’s ruling, legal experts said the definitive statement on the constitutionality of Article 125 in light of the Supreme Court ruling has yet to be made.

“It certainly is regrettable … that the state of the law will remain uncertain for somewhat longer,” said military law expert Eugene Fidell. “Marcum may not have been the perfect case to test Article 125 in light of Lawrence v. Texas. There will be others, I am sure, that may present the constitutional question more crisply.”

Indeed, SLDN is already working toward moving such cases forward. “SLDN will now consider all options regarding further challenges” to Article 125, Osburn said.

But even without answering the broader issue of whether Article 125 is unconstitutional on its face, the military court ruling may still impact future sodomy cases, said retired Coast Guard Capt. Kevin Barry, a former military judge.

In the wake of the Marcum case, it would be difficult for the military to use Article 125 to prosecute “married people who engage in oral sex, or a service member who engages in oral sex with someone not in the service who is an adult and is fully consenting,” Barry said. “These would have been considered offenses in the past.”

Outdated laws

The Cox Commission, a panel of military law experts, suggested in 2001 the military’s rape and sodomy laws were outdated and should be replaced with criminal sexual misconduct provisions mirroring civilian law. Defense officials didn’t act on that recommendation.

Osburn pointed out that Article 125 bars service members — heterosexual or homosexual, married or single — from engaging in consensual sodomy, to include oral or anal sex. Osburn said a Rand study found at least 80 percent of service members regularly violate Article 125.

“Private, consensual conduct in the bedroom has no impact on the battlefield,” Osburn said. “Our country right now needs to fight terrorists, not pry into people’s private lives.”

http://www.navytimes.com/story.php?f=1-NAVYPAPER-323125.php

Buuuutttttsssssex
http://www.ar50.com/images/poop.jpg

yuk

What, no Air Force jokes yet?

seems like the issue wasn't "the act" but that they were gay and the sgt was the other guys superior.

Geez... they actually jailed him?

Yeesh.

Do heteros get jailed if they do the same thing?

- BG

Good thing too!  There is at least one place where your ass is safe.

Bilster

Really........  Why does the military care where somebody sticks his dick.... animal, vegtable, mineral Especially, when it comes to a husband/wife relationship.

So, if you are married in the military(to another military person), you can technically NOT "stuff it her pooper"?

Yes.

LITTLE ROCK, Ark. A colonel serving with Arkansas National Guard troops in Iraq is serving a 90-day jail sentence after pleading guilty to using his rank to coerce sex from subordinates.

Lieutenant Colonel Fred Raymond Sampson, a married father of four, faced allegations involving six women.

Sampson, the 39th Infantry Brigade's operations officer, was charged in July with 24 violations of the Uniform Code of Military Justice and removed from duty in May when the investigation began.

Yesterday, he pleaded guilty to ten counts of conduct unbecoming an officer and a gentleman.

He also pleaded guilty to fraternization with enlisted soldiers, adultery, having sexual relations with a subordinate and one count of disobeying an order from a superior officer.

He was taken by military police to a military prison in Kuwait after the trial.

Charges against Sampson span the length of the brigade's deployment, with the first allegations reaching back to November, when the brigade was training at Fort Hood, Texas.

http://www.kltv.com/Global/story.asp?S=2176713

Quoted: Geez... they actually jailed him? Yeesh. Do heteros get jailed if they do the same thing? - BG

Correct.
Oral sex is also illegal.

Quoted: So, if you are married in the military(to another military person), you can technically NOT "stuff it her pooper"?

During my time as a non-voluntary MP doing law enforcement work in the army I saw a few of these type of cases.

These are really really nasty. There is a lot of weeping and begging, the people involved are drunk, and the doer realizes that his military life, and in some cases his civvie life, is over. The victim has been betrayed, and knows that his life is mostly over too, at least in the service. The smarter ones know right away that they will still have to serve out their time but that everyone will gossip that they are gay and treat them like shit. Suicide on both sides is a real risk.

I think that this type of case is worse then a normal rape (man on woman) excepting one regular rape we had where the doer beat the hell out of the victim over the course of hours.

Quoted: Correct. Oral sex is also illegal. Quoted: So, if you are married in the military(to another military person), you can technically NOT "stuff it her pooper"?

ORAL SEX IS ILLEGAL ?!?!?!?


That's just not right !  

Quoted: Quoted: Correct. Oral sex is also illegal. Quoted: So, if you are married in the military(to another military person), you can technically NOT "stuff it her pooper"? ORAL SEX IS ILLEGAL ?!?!?!? That's just not right !

Yep, sodomy covers oral and anal sex, as well as bestiality.

No packin's, snarlin's or horse hobblin' allowed. (Or just don't tell.....)

Quoted: Issue Date: September 06, 2004 Court upholds sodomy ban Ruling doesn’t close door on possible future challenges By Deborah Funk Times staff writer Marcum, a former cryptologic linguist

<Beevis> he said cryptologic linguist, heh, heh! </Beevis>

I would die without oral sex.  DIE.