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Does making a private sex tape amount to a crime under military law?
The military's highest court considered that question Nov. 13 as its judges heard an appeal from a solider who was convicted of making a video of himself having sex with a German woman in 2006.
The case cast a spotlight on how Article 134 of the Uniformed Code of Military Justice, known as the "general article," might apply to sexual activity that is legal for civilians but for service members might "bring discredit upon the armed forces."
"If someone is observing or videotaping, that is public behavior," Army Capt. Edward Whitford, an attorney for the government, told the judges at the Court of Appeals for the Armed Forces. "Article 134 criminalizes in the military what might be constitutionally protected in civilian society."
The case stems from the 2008 conviction of Staff Sgt. Ivan Goings, an Army medic. A search of his off-post home in Heidelberg, Germany, turned up a video showing him and another man talking, smoking cigarettes and taking turns having consensual sex with an unidentified German woman.
Goings' attorney, Army Capt. Kristin McGrory, said Goings never publicized the video, making it essentially a private matter. As such, she said the conviction should be overturned for violating the "constitutional right for individuals to make decisions about their own sexual activity in private."
The case harkens back to a 2003 Supreme Court decision that struck down a Texas law criminalizing "sodomy" between consenting adults. While the military has since acknowledged that its own law criminalizing sodomy, known as Article 125, is unconstitutional, Tuesday's case marked the first time the court has wrestled with questions about sexual activity punishable under Article 134.
The judges seemed skeptical of Whitford's argument that Article 134 can punish such a wide range of sexual activity.
"If you have more than two [people], does that mean it is always … indecent?" asked Judge Charles E. "Chip" Erdmann.
Whitford suggested that sexual activity filmed or observed by a third party amounts to "open and notorious" conduct and is therefore "service discrediting" and a violation of Article 134.
In addition to the sex tape conviction, Goings was also convicted in separate incident of raping a German woman after knocking her out with a so-called date-rape drug. The sex tape was discovered during a search of his apartment stemming from that charge. He was sentenced in 2008 to five years in prison, a dishonorable discharge and reduction in rank to E-1.
The court's ruling, expected early next year, likely will influence how commanders handle similar cases in the future.