Private Consensual Sodomy Should be Constitutionally Protected in the Military by the Right to Privacy

AuthorMajor Eugene E. Baime
Pages02

2002] PRIVATE CONSENSUAL SODOMY 91

PRIVATE CONSENSUAL SODOMY SHOULD BE CONSTITUTIONALLY PROTECTED IN THE MILITARY BY THE RIGHT TO PRIVACY

MAJOR EUGENE E. BAIME1

  1. Introduction

    United States service members cannot engage in any type of sodomy without breaking the law.2 This broad restriction makes no distinction based on the service member's status. Article 125, Uniform Code of Military Justice (UCMJ), applies whether an individual is married or unmarried, heterosexual or homosexual.3 The restriction also applies whether the sodomy is consensual or nonconsensual.4 In fact, the only difference between consensual and forcible sodomy is the authorized punishment.5 It is irrelevant whether the sodomy is committed in public or in the privacy of a service member's off-post bedroom.6 Thus, under the UCMJ, married service members commit criminal offenses if they engage in consensual oral or anal sodomy in the privacy of their own bedroom with their own spouse.

    The prohibition against private consensual sodomy still exists for two reasons. First, when Congress created the UCMJ fifty years ago, it intended to criminalize sodomy. Second, the courts are unwilling to hold conclusively that Article 125 unconstitutionally interferes with a married service member's right to privacy. For these two reasons, service members

    may be prosecuted under Article 125 for engaging in consensual sodomy. This remains the case despite a finding by the United States Navy-Marine Court of Criminal Appeals that "it seems clear to us that Congress and our superior courts never intended that we disregard the mantle of privacy and protection traditionally afforded to the marital relationship."7

    The Court of Appeals for the Armed Forces8 refuses, absent direction from the Supreme Court, to identify a constitutional right to privacy allowing service members to commit sodomy.9 The court recognizes that co

    victing a service member for committing consensual sodomy may not be the best decision as a matter of policy.10 The court, however, can only determine whether a statute is constitutional, not whether the statute is erroneous as a matter of policy.11 Recognizing this, the court has commented that Congress could alter Article 125 or convening authorities could decide not to prosecute consensual sodomy cases.12

    Consensual sodomy, committed in private, should not be prohibited under the UCMJ. Service members have a constitutional right to privacy, and within that right is the ability to make decisions and engage in activities free from governmental intrusion. Numerous state courts have recognized that one of the most fundamental and important decisions an individual can make is whether to engage in private sexual intimacies. These courts have held unconstitutional state statutes prohibiting sodomy because they improperly intruded upon individuals' right to privacy.13

    That same logic should apply to the military where service courts fail to recognize a right of privacy pertaining to any act of sodomy committed under any circumstances.14

    Military courts have erred by not holding that Article 125 is unconstitutional, insofar as it prohibits consensual oral and anal sodomy committed in private. This article asserts that Article 125's prohibition causes an unconstitutional infringement upon service members' right to privacy. First, it discusses the history behind criminal sodomy provisions. Second, it discusses the right to privacy in general terms. Third, it evaluates Bowers v. Hardwick,15 a Supreme Court case that considered whether homosexual sodomy is constitutionally protected under the right to privacy.

    Fourth, it explores the rationale used by courts that determined state sodomy statutes were unconstitutional. Fifth, it discusses Article 125 as it currently applies to married service members. Sixth, it proffers that all service members enjoy a constitutional right to privacy to engage in consensual oral or anal sodomy. Seventh, it demonstrates that government intrusion into this right to privacy serves no compelling governmental interest. Finally, the article proposes a change to Article 125 that would uphold service members' constitutional right to privacy.

  2. History

    The crime of sodomy has ancient historical roots.16 Originally appearing in Hebraic law,17 sodomy prohibitions historically pertained to male homosexual activity.18 In addition, oral sex historically has been defined as "unnatural or deviant" conduct.19 Sodomy is not a new offense in the military. The Court of Military Appeals wrote that military law has criminalized oral sodomy "since time immemorial."20 Prior to 1920, sodomy was considered a criminal offense under Article of War 96, although this general article did not specifically list sodomy as an offense.21 Under military jurisprudence, however, oral sex was considered a crime.22 From 1920-1949, sodomy was prosecuted as a violation of Article of War 93, which specifically stated that sodomy was an offense, but did not define it.23 The 1949 Manuals for Courts-Martial for the Army and the Air Force later defined the crime of sodomy as "taking into . . . [the] mouth or anus .

    . . the sexual organ of any other person or animal or placing his or her sexual organ in the mouth or anus of any other person or animal."24

    Article 125 is a direct descendant of these "preexisting sexual proscriptions in the land and naval forces of the United States."25 Congress did not intend Article 125 to change significantly the prohibitions against sodomy then in existence.26 Article 125, however, provided a far more refined definition of sodomy.27 Although the origin of the term sodomy suggests that it applies only to homosexual conduct, it is clear from the language of Article 125 that Congress intended the prohibition to apply to heterosexual sodomy as well.28

    The United States Court of Appeals for the Armed Forces has often interpreted Congress's legislative intent in creating Article 125.29 In

    reviewing the legislative history, the court found that Congress did not determine whether there are any harmful consequences to the military community resulting from sodomy committed in private.30 The court found, however, that Congress intended the UCMJ to include oral sodomy as an offense under Article 125.31 After evaluating prior court decisions and "other authorities," the court concluded that Congress clearly intended that Article 125 encompass "consensual, noncommercial, heterosexual fellatio . . . performed in private between two unmarried adults."32 Mili-

    tary courts have not found corresponding congressional intent to apply Article 125 to married couples' sexual conduct.33

    Congress clearly intended to include in Article 125 the conduct that earlier military law prohibited.34 Simply put, the offense of consensual sodomy exists in military law because Congress chose to incorporate the common law offense of sodomy into the UCMJ.35 The military courts' interpretation of the legislative history36 indicates no unique rationale for Congress to criminalize sodomy in the military other than this desire to legislate the common law offense of sodomy.37 The courts provide no insight into possible compelling interests that Congress considered when creating the prohibition against sodomy.38 The Court of Appeals for the Armed Forces even commented that Congress did not make any determination of possible harm that could arise if service members engaged in private consensual sodomy.39 The only certainty is that Congress criminalized consensual oral sodomy out of deference for the common law's premise that sodomy was unnatural or deviant sexual behavior.40

  3. Constitutional Analysis

    1. Right to Privacy

      "[T]he right to be let alone [by the Government is] the most comprehensive of rights and the right most valued by civilized men."41 Although the Constitution does not expressly grant a right to privacy,42 the Supreme Court first articulated this right in 1891.43 Thus, the right has arisen from case law and the Court's interpretation of the Bill of Rights-specifically the First, Fourth, Fifth,44 and Ninth Amendments-and both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 45

      After reviewing prior case law involving the right to privacy, the Court determined that the "guarantee of personal privacy" only applies if the action in question is "fundamental" or "implicit in the concept of ordered liberty."46 The Court explained, however, that the right to privacy has its true basis in the Fourteenth Amendment.47 The right to privacy may even protect practices that were uncommon when the Fourteenth Amendment was adopted.48 The Court is supposed to exercise reasoned judgment to define the appropriate "sphere of liberty" when adjudicating each substantive due process claim.49

      Interpreting the right to privacy is not an easy task. It does not guarantee citizens the right to do things in private, but rather guarantees them the right to engage in certain personal acts50 or decisions.51 It is important to understand this distinction. Otherwise, one could argue that the right to privacy protects someone who commits a murder in private. Limited in scope to certain fundamental rights, the right to privacy does not protect citizens' every act.

      In United States v. Griswold,52 the Supreme Court found unconstitutional a ban on the distribution of contraceptives to married people. The Court held that there is a constitutional right to privacy, which protects a married couple from state intrusion into their intimate affairs.53 Justice Douglas, writing for the majority, wrote:

      Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The

      very idea is repulsive to the notions of privacy surrounding the marriage relationship.

      We deal with a right of privacy older than the Bill of Rights- older than political parties, older than our school system. Marriage is a coming together for better or...

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