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About Time:

[UPDATE: For a report that the Pentagon is not planning to decriminalize consensual sodomy, see here.]

The New York Times reports:

The office of the general counsel at the Pentagon has proposed decriminalizing consensual sodomy among adults . . . .

Under Article 125 of the Uniform Code of Military Justice, it is a crime to engage in "unnatural carnal copulation with another person of the same or opposite sex," even with mutual consent.

The changes proposed by the Pentagon's lawyers would narrow the definition to prohibit acts of sodomy with a person under age 16 or acts "committed by force." . . .

While the change would not alter the military's policy against gay men and lesbians in uniform, advocates for gay rights said that recent court decisions and the proposed changes to the military code could have broader implications for gay men and lesbians in the armed forces. . . .

I'm quite skeptical of the arguments against allowing gays in the armed forces, but at least there's a plausible — though in my view on balance unpersuasive — justification for that policy: the concern that homosexual relationships may interfere with discipline and cohesion in all-male or nearly all-male units. (I don't see how that argument could justify the exclusion of lesbians, but that's a matter for another day.)

What plausible relation, though, could there possibly be for banning nongenital heterosexual sex — including oral sex, which the overwhelming majority of heterosexuals engage in — among servicemembers? How does banning our soldiers from having oral sex make them a more effective fighting force? How is the rule anything other than a waste of time, money, and military resources if enforced, and anything other than a mockery if unenforced?

The only explanation I've ever heard for such rules is that they make it easier to prosecute nonconsensual sex when the evidence of lack of consent is weak. But that strikes me as a lousy justification, a recipe for injustice against perfectly innocent, decent people who happen to get on the wrong side of a prosecutor or a commanding officer. And it seems to me that in the military even more than in civilian life, the rules should be enforced, and rules that we aren't prepared to enforce (at least in the normal cases, setting aside the exceptional ones) shouldn't be rules.

Finally, I realize that the decriminalization of nongenital sex would indeed eliminate one argument against excluding practicing homosexuals. But if the real reason for the exclusion is the concern about unit cohension, then that's what the argument should be about — not the practicing homosexuals' violation of a rule that's pointless and that's routinely violated by most heterosexuals.

Reports of Sensible Decisionmaking May Have Been Greatly Exaggerated:

Reader Jason Walta passes along this item from The Advocate:

The Defense Department has sharply contradicted reports in The New York Times and other media that sodomy would no longer be categorized as a criminal act in the U.S. military.

Defense Department spokesman Lt. Col. Joseph Richard told Advocate/OutQ News that the Pentagon is only recommending that the laws prohibiting consensual sodomy be moved from one section of the Uniform Code of Military Justice to another.

"We have placed it where it belongs, in the Manual [for] Court[s-] Martial. Acts committed under that article are prejudiced to good order and discipline in the military. We have not decriminalized sodomy," he said. . . .

[T]he Pentagon believes that its specific claim that sodomy between service members is detrimental to "good order and discipline" will be enough to keep the ban from being struck down [as unconstitutional]. . . .

I'm puzzled, though: The current ban prohibits all "unnatural carnal copulation," whether with another service member or with one's non-service-member spouse or lover. Is the military planning to limit sodomy to nongenital sex among service members? Will it limit it only to nongenital sex that is within a unit or the chain of command and thus potentially detrimental to "good order and discipline," or is its claim that nongenital sex with any fellow service member, even someone in a completely different unit, or possibly even with a non-service-member, is somehow prejudicial to good order and discipline?

Also, why would nongenital sex be more prejudicial to good order and discipline than genital sex? I assume (though maybe I'm mistaken) that genital sex among service members is not a crime, unless there is something that makes it a potential threat to good order and discipline (for instance, that it's within the chain of command, or of course that it's nonconsensual).

In any event, as usual with press accounts quoting or paraphrasing people, take all this with a grain of salt; some important details may have been omitted or misreported.

UPDATE: Reader Paul Johnson, a former military lawyer, suggests that the change may indeed be to decriminalize nongenital sex except when it's detrimental to good order and discipline (or brings discredit on the armed forces). He suspects that the Pentagon may be planning to repeal Article 125 (as the New York Times reported) but to shift some sodomy prosecutions to Article 134, which prohibits "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." He also writes that "I don't see that genital sex and non-genital sex would be treated differently under Article 134 (except that genital sex between a married person and an unmarried person can also be prosecuted under Article 134 as adultery). If it's performed under circumstances that would be prejudicial to good order and discipline, or constitutes service-discrediting conduct, it's punishable under Article 134."

If this conjecture about what the Pentagon is planning — and again I stress the difficulty of speculating based on press accounts — then the New York Times article is largely right, the Advocate article is mistaken or at least incomplete, and the Pentagon's decision is indeed sensible.

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  1. Reports of Sensible Decisionmaking May Have Been Greatly Exaggerated:
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