# Is It Illegal For Military Personnel To Give Or Receive Oral Sex? **URL:** \ **Category:** Factual Questions\ **Created:** [May 9, 2005, 2:50pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060 "2005-05-09T14:50:53Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Surreal](https://avatars.discourse-cdn.com/v4/letter/s/eada6e/32.png) [@Surreal](https://boards.straightdope.com/u/Surreal)\ **Post date:** [May 9, 2005, 2:50pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/1 "2005-05-09T14:50:53Z")
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’?? Thanks. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 9, 2005, 3:22pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/2 "2005-05-09T15:22:45Z")
Article 126 of the UCMJ does (or did, I don’t know how the Supreme Court decision) prohibit sodomy, or as the article says: > [@](#): > > (a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense. > > (b) Any person found guilty of sodomy shall be punished as a court-martial may direct. 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 9, 2005, 3:27pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/3 "2005-05-09T15:27:08Z")
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. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [May 9, 2005, 3:44pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/4 "2005-05-09T15:44:12Z")
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? ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 9, 2005, 3:55pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/5 "2005-05-09T15:55:47Z")
> [@Mr. Moto](#): > > 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. 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](http://www.washblade.com/2005/4-29/news/national/dontask.cfm) 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. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 9, 2005, 4:06pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/6 "2005-05-09T16:06:16Z")
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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 9, 2005, 4:23pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/7 "2005-05-09T16:23:52Z")
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. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 9, 2005, 4:23pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/8 "2005-05-09T16:23:57Z")
> [@Otto](#): > > 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. Just in case clarification is required, please amend this sentence to read > [@](#): > > Each state’s laws are “separate bodies of law” too but a _Supreme Court_ decision striking down an unconstitutional law in one state strikes down the same law in any other state that has it on the books. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 9, 2005, 4:29pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/9 "2005-05-09T16:29:55Z")
> [@Mr. Moto](#): > > 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. 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](http://writ.news.findlaw.com/commentary/20030715_carter.html) 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. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 9, 2005, 4:51pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/10 "2005-05-09T16:51:43Z")
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. > [@](#): > > ART. 134. GENERAL ARTICLE > Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. IOW, if sodomy causes problems, we can prosecute it, even if the sodomy article is overturned. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 9, 2005, 5:13pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/11 "2005-05-09T17:13:56Z")
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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 9, 2005, 5:17pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/12 "2005-05-09T17:17:02Z")
> [@Mr. Moto](#): > > When I was in the Navy, we enlisted sailors agreed … I’m not saying you’re wrong, but I wondered whether this counts as an appeal to authority. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 9, 2005, 5:26pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/13 "2005-05-09T17:26:19Z")
> [@](#): > > IOW, if sodomy causes problems, we can prosecute it, even if the sodomy article is overturned. 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). ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [May 9, 2005, 5:41pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/14 "2005-05-09T17:41:53Z")
> [@Mr. Moto](#): > > Agreed. But I don’t see how this amounts to much of a difference on the ground. One is factually correct; the other is not. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 9, 2005, 5:49pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/15 "2005-05-09T17:49:20Z")
> [@Mr. Moto](#): > > IOW, if sodomy causes problems, we can prosecute it, even if the sodomy article is overturned. 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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 9, 2005, 6:07pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/16 "2005-05-09T18:07:27Z")
> [@JRDelirious](#): > > **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). 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. ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [May 9, 2005, 6:11pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/17 "2005-05-09T18:11:25Z")
> [@Captain Amazing](#): > > 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. 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. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [May 9, 2005, 7:20pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/18 "2005-05-09T19:20:29Z")
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](http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm) and [U.S. v. Stirewalt](http://www.armfor.uscourts.gov/opinions/2004Term/03-0433.htm). 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: > [@U.S. v. Marcum](#): > > First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in _Lawrence_? 539 U.S. at 578. Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the _Lawrence_ liberty interest? 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. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [May 9, 2005, 7:52pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/19 "2005-05-09T19:52:14Z")
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? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [May 9, 2005, 9:12pm UTC](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060/20 "2005-05-09T21:12:52Z")
> [@Mr. Moto](#): > > 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. 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. [Next page](https://boards.straightdope.com/t/is-it-illegal-for-military-personnel-to-give-or-receive-oral-sex/303060.md?page=2)