A May 23 split ruling by the Court of Military Appeals for the Armed Forces raises questions about the reach and application of the Uniform Code of Military Justice, and points again to the need to align the UCMJ with current legal and social norms.
The appellate ruling upheld the 2008 conviction of Army Staff Sgt. Ivan Goings on charges of indecency after a video was found in his off-base home showing him and another man having consensual sex with a German woman.
The tape was found while Goings was being investigated for the date rape of another woman, for which he was also convicted.
The judges in the majority held that the “indecent act” of letting a third party watch and record consensual sex was prejudicial to good order and discipline and discrediting to the military.
But Judge Scott Stucky dissented, noting there was no evidence that the video was meant for anything other than private use and, more importantly, that the majority ruling could be interpreted as applying to the recording of any sex act, even between two people.
The Supreme Court has asserted a basic right to privacy in sex-related matters back to the 1920s, most recently in 2003, when it struck down a Texas law barring consensual sodomy, defined as oral or anal sex.
Yet Article 125 of the UCMJ still bans sodomy.That’s right: It is still technically illegal for married troops to have oral sex with their spouses. And while it is now OK for gays to serve openly in the military, it is still technically illegal for them to have sex.
Clearly, the military has a compelling interest in prosecuting violent, nonconsensual sex acts such as rape, assault and abuse, as well as acts that cross into fraternization between superiors and subordinates.
But the military and the UCMJ have no place governing the private, consensual activity of service members. It’s past time for Congress to amend these laws.