Is It Illegal For Military Personnel To Give Or Receive Oral Sex?

Is it true that it is illegal for someone enlisted in the U.S. military to engage in oral sex?

Has anyone ever been prosecuted solely for doing this? What is the punishment for this particular ‘crime’??


Article 126 of the UCMJ does (or did, I don’t know how the Supreme Court decision) prohibit sodomy, or as the article says:

I don’t know if oral sex is considered “unnatural carnal copulation” or if any one has ever been court-martialed for heterosexual oral sex, though.

The Supreme Court decision would not have affected the UCMJ, as that is a separate body of law. That would have to be treated differently.

Also to nitpick, it’s Article 125.

I believe in practice, sodomy cases are prosecuted only in conjunction with rape cases or as part of a discharge proceeding for homosexuality.

The state of Virginia charged a heterosexual couple with sodomy of the oral sex variety a coupe of years ago. (Sorry no cite.)

Why the heck would a Supreme Court ruling not apply to the UCMJ just as it would to all other bodies of American law?

The Constitution covers military law. Each state’s laws are “separate bodies of law” too but a decision striking down an unconstitutional law in one state strikes down the same law in any other state that has it on the books. The reason Article 125 may still stand despite Lawrence is not because it’s a “separate body of law” but because of the deference courts traditionally show to the military to run its own business. The military has responded to Lawrence by attempting to move consensual sodomy from Article 125 of the UCMJ to Article 134. Note in my link that at least two military courts have ruled that in light of Lawrence the military is restricted in its ability to prosecute consensual sodomy.

Yes, it would seem that the penal disposition against consensual “sodomy” in the UCMJ as a “crime”, per sef would fall under Lawrence, if the military itself is seeking to move it into the area of practices harmful to good discipline.

I’m not a lawyer, and cannot speak of the fine constitutional points here. But it is a fact that the UCMJ embodies principles that, were they imposed on the population at large, would be considered blatantly unconstitutional.

They are necessary, though, to ensure proper military order and discipline.

I saw guys restricted to the ship when I was in, reduced in paygrade, half their pay taken away for two months, sometimes given bread and water rations for up to three days. They were given extra duty for the restriction period. And all of this was without benefit of court martial - these were non-judicial punishments that could be imposed by the commanding officer for an infraction.

This cannot be done to people outside of the military, simply put.

Just in case clarification is required, please amend this sentence to read

And this is permitted not because the UCMJ is a “separate body of law” but because the courts traditionally give deference to the military.

Here is an excellent discussion of the origin of the judicial deference doctrine which coincidentally was inspired by Lawrence and DADT.

No one is arguing with you that the military is empowered to do things to its members that would not stand in a civilian setting. What you have wrong is the reason the military is so empowered.

Agreed. But I don’t see how this amounts to much of a difference on the ground.

When I was in the Navy, we enlisted sailors agreed that, if nothing else, “they” could always get you on an Article 134, since that article, the General Article, was so broadly written that anything could be prosecuted under it.

IOW, if sodomy causes problems, we can prosecute it, even if the sodomy article is overturned.

On the other hand, if the sodomy isn’t causing a problem with military order and discipline or the military culture, it’s pretty clear it will be ignored, even if there is an enforceable sodomy article in the UCMJ.

I’m not saying you’re wrong, but I wondered whether this counts as an appeal to authority.

Which is a completely sensible thing.

But what people worry about with the Executive Order referenced in Otto’s linked article is whether it creates room for selective enforcement, or for commanders to decree a-priori that it does “cause a problem”.

ascenray, it’s not so much appeal to authority as recognition that the people under UCMJ willingly entered an agreement that includes having their ordinary rights restricted (not eliminated).

One is factually correct; the other is not.

I think your statement is probably the case. And this is the sort of thing, i.e. “prejudicial to good order and discipline,” about which courts are deferential to the military command’s judgement.

D’oh! I see I misunderstood the original statement. I thought Mr. Moto was telling us about the consensus opinion of his colleagues.

Mr. Moto, I see now that you were referring to the text quoted from Article 134. Perhaps if you had said “The Uniform Code of Military Justice, to which all enlisted people are subject, states … ,” then my confusion would have been minimized.

Considering how common consensual oral sex is amongst heterosexuals, wouldn’t you think the military would have made a clarifying ruling on this? IOW, say in plain language whether or not it is allowed.

Prior to Lawrencev. Texas, military courts did uphold convictions for consentual, non-commercial, heterosexual oral sex between adults under the general UCMJ provision prohibiting sodomy.

Since Lawrence, the United States Court of Appeals for the Armed Forces, the country’s highest military court (appealable only to the U.S. Supreme Court) has addressed this issue in two cases decided last year, U.S. v. Marcum and U.S. v. Stirewalt.

The Court determined that military courts should consider whether the general UCMJ prohibition of sodomy was unconstitutional under Lawrence on a case-by-case basis (rather than asking if the prohibition was unconstitutional on its face). They examined whether the facts and circumstances of each particular accused act of consentual oral sodomy to find whether it was within the liberty interest identified in Lawrence, as properly tailored to the interests of the military in good order and discipline and national security.

The Court articulated a three part test:

In Marcum, the accused had been convicted of “non-forcible sodomy” with a member of his supervisory chain of command. The court found that because the conduct was within the chain of command, there was an element of “coersion” that took it outside the liberty interest identified in Lawrence, and thus the conviction was constitutional under the second step of the test.

In Stirewalt, the “non-forcible sodomy” was between an officer and the accused enlisted person assigned to the same Coast Guard cutter. This conduct was in violation of Coast Guard regulations prohibiting romantic relationships between members of the crews of cutters (or small shore units). The court found that the conviction was proper under Lawrence, as adjusted for necessary factors in the military environment, despite the fact that the subordinate was the accused, on the grounds that the regulations were necessary to protect discipline in small units.

At this point, there has been no clear ruling about how the military courts would address a case of consentual sodomy between adults not involving members of the same chain of command, small unit or other militarily significant matter. It is likely, however, that Lawrence would prohibit convictions of “unrelated” service members for consentual oral sodomy.

It would seem that the cases cited by Billdo the real offense was a sexual relationship, not sodomy per se. Wouldn’t such cases also have been prosecuted if penile-vaginal intercourse had taken place instead, given the circumstances?

So laws are not enforced if the powers that be don’t feel they need to be, but can be enforced even if they do not exist if the powers that be want to enforce them.

You are in effect saying that the UCMJ is essentially meaningless, and that the U.S. armed services punishes people for whatever they want.