Sexual Orientation and Military Service

[denuseri]

I don't know Duncun, more than a few of my friends that are in the service have told me, that if they get cuaght doing it with anyone else in thier command in the field or at sea, on even on base property in some cases; that there are consequences, even if its on shore leave or off post sometimes.

More often than not they go after the woman alone and eaither don't penalize the male or have far less harsher penalty enforced, and regardless of rank or duty assignment if it's relations with the same sex, its over they are going to be kicked out of the service period.

[DuncanONeil]

Not quite! The act of sex alone is insufficient.

"(O)ne of the Court of Military Appeals' earliest decisions observed, "It is true, as urged by appellate defense counsel, that fornication, in the absence of aggravating circumstances, has been held not to be an offense under military law. United States v. Ord, 2 CMR(AF) 84. This is consistent with the view expressed earlier herein that Congress has not intended by Article 134 and its statutory predecessors to regulate the wholly private moral conduct of an individual." United States v. Snyder, 1 C.M.A. 423, 427, 4 C.M.R. 15, 19 (1952). Later in the same paragraph, CMA noted that "simple fornication is not an offense cognizable under military law." Id.

Chief Judge Everett has provided this helpful synopsis of the law governing fornication in the military:

In summary, the treatment of adultery and fornication in military law seems to be this: (a) two persons are guilty of adultery whenever they engage in illicit sexual intercourse if either of them is married to a third person; (b) if unmarried, they are guilty of fornication whenever they engage in illicit sexual intercourse under circumstances in which the conduct is not strictly private; and (c) private sexual intercourse between unmarried persons is not punishable." (http://caaflog.blogspot.com/2007/09/...itary-law.html)

United States v. Izquierdo, 51 MJ 421(fornication, committed openly and notoriously, is an aggravating circumstance sufficient to state an offense under Article 134, UCMJ).

(as an indecent act under Article 134, UCMJ, fornication is open and notorious, flagrant, and discrediting to the military service if committed in the actual presence of others, when the participants know that a third person is present, or under circumstances where it is reasonable likely that others will view the act).

(evidence was legally sufficient to show that fornication was open and notorious where, although appellant hung a sheet between beds, two of appellant’s roommates were present during the fornication and both were suspicious of the activity behind the sheet).
(evidence was not legally sufficient to show that fornication was open and notorious where intercourse took place behind closed barracks room door and nobody else was present in the room).

I don't know Duncun, more than a few of my friends that are in the service have told me, that if they get cuaght doing it with anyone else in thier command in the field or at sea, on even on base property in some cases; that there are consequences, even if its on shore leave or off post sometimes.

More often than not they go after the woman alone and eaither don't penalize the male or have far less harsher penalty enforced, and regardless of rank or duty assignment if it's relations with the same sex, its over they are going to be kicked out of the service period.

[Thorne]

In summary, the treatment of adultery and fornication in military law seems to be this: (a) two persons are guilty of adultery whenever they engage in illicit sexual intercourse if either of them is married to a third person; (b) if unmarried, they are guilty of fornication whenever they engage in illicit sexual intercourse under circumstances in which the conduct is not strictly private; and (c) private sexual intercourse between unmarried persons is not punishable."

Nice job of research, Duncan. As you note, this seems to permit consensual sex between adults as long as it is kept private. I wonder, though: I don't see anything specifically stating that the adults must be different sexes, or even that there can only be two adults involved. Would a three-some violate the UCMJ? What about an orgy? Would a gay couple violate the rules if they remained private?

"This is consistent with the view expressed earlier herein that Congress has not intended by Article 134 and its statutory predecessors to regulate the wholly private moral conduct of an individual."

I found this statement particularly illuminating. I wonder if anyone has bothered to inform Congress of this little gem? As far as I can tell, politicians generally spend far more time trying to control the morality of their constituents than they do trying to control themselves.

[DuncanONeil]

As I said 41 Minutes Ago in message #66
United States v. Izquierdo, 51 MJ 421(fornication, committed openly and notoriously, is an aggravating circumstance sufficient to state an offense under Article 134, UCMJ).
(evidence was not legally sufficient to show that fornication was open and notorious where intercourse took place behind closed barracks room door and nobody else was present in the room).

Nice job of research, Duncan. As you note, this seems to permit consensual sex between adults as long as it is kept private. I wonder, though: I don't see anything specifically stating that the adults must be different sexes, or even that there can only be two adults involved. Would a three-some violate the UCMJ? What about an orgy? Would a gay couple violate the rules if they remained private?


I found this statement particularly illuminating. I wonder if anyone has bothered to inform Congress of this little gem? As far as I can tell, politicians generally spend far more time trying to control the morality of their constituents than they do trying to control themselves.

[DuncanONeil]

I found this statement particularly illuminating. I wonder if anyone has bothered to inform Congress of this little gem? As far as I can tell, politicians generally spend far more time trying to control the morality of their constituents than they do trying to control themselves.

As I pointed out somewhere in the thread it really is not about sex. It is an issue of security. Our favorite kink actually puts us in the same risk category as homosexuals. Although we would likely not suffer the same result.

[Thorne]

As I pointed out somewhere in the thread it really is not about sex. It is an issue of security. Our favorite kink actually puts us in the same risk category as homosexuals. Although we would likely not suffer the same result.

Yeah, I understood that. But the statement in question was neither about sex or security, but about morality! It seems to me that the comment you quoted stated flatly that Congress does not have the right to regulate an individual's morality as long as he remains private. Yet we constantly see regulations which attempt to do just that.

[DuncanONeil]

I can agree with that. Hell yeah I can agree with that!

Yeah, I understood that. But the statement in question was neither about sex or security, but about morality! It seems to me that the comment you quoted stated flatly that Congress does not have the right to regulate an individual's morality as long as he remains private. Yet we constantly see regulations which attempt to do just that.