Actually, in both cases the initial charges included allegations of both forcible and non-forcible sodomy, in addition to other charges.
In Marcum, the allegations as to the non-forcible sodomy conviction were that after a night of drinking the complaintant had crashed at the apartment of the accused, the NCO in charge of his unit. The complaintant testified that he awoke and found that the accused was performing oral sex on him. (Incidentially, both the accused and the complaintant were men in this case, though the court did not explicitly include that as a factor in its legal reasoning.) As to that incident, the court martial found that the accused had not engaged in forcible sodomy, but only in non-forcible sodomy because of other evidence regarding the pair’s personal relationship. (Apparently the accused was also convicted of forcible sodomy for another incident in the same case.)
In Stirewalt, the accused was originally convicted “a number of offenses involving his female shipmates,” those being “four specifications of maltreatment by sexual harassment, one specification of rape, one specification of forcible sodomy, three specifications of assault consummated by a battery, four specifications of adultery and four specifications of indecent assault.” The military judge threw out some of the charges, and the remainder were thrown out on appeal, where a new trial was ordered. Before the retrial, the accused pleaded guilty to non-forcible sodomy.
In these cases, it seems that non-forcible sodomy was a lesser included offense to a forcible sodomy charge (and incidentally, both initial convictions were pre-Lawrence, with the constitutionality of the non-forcible sodomy conviction only being raised on appeal). I don’t know how much, if at all, the military would prosecute true non-forcible sodomy, with no other confounding factors.
No. The UCMJ is not meaningless, and it’s not done on a whim. Not surprisingly, there are other guidelines that must be followed.
Prosecution under the UCMJ is done under procedures set forth by the Manual for Courts Martial.. And it states that lesser offenses may be prosecuted at the same time as a sodomy charge if that offense was committed.
Now, the interesting thing is that a few of those charges include assault with intent to commit sodomy, indecent acts with a child under 16, indecent assault, or indecent acts with another - all of which are offenses that fall under Article 134, the General Article.
So the General Article is really only general within the UCMJ. In practice, it is broken down into discrete charges that are all handled a little bit differently.
It is useful for the UCMJ to be a smaller, more compact document. The MCM is 800 pages long, the important articles of the UCMJ are routinely posted in poster form for servicemembers to familiarize themselves with. In much the same way, most people are familiar with broad constitutional principles while not needing to know about the vast amount of case law available.
Well, in a way it can. It’s kind of like a plea bargain. What you describe is non-judicial punishment under authority of Article 15 – simply called “an Article 15” or in the Navy (Marines, too?) a “Captain’s Mast.” You have the right to court martial. If you do something to merit an Article 15, you can refuse punishment under Article 15, i.e., excerise your Constitutional right to a trial. But… you’re probably going to get off a lot worse than half pay, bread and water, and reduction in rank. Even with a history of Article 15’s, you’ll still receive an Honorable discharge if you leave because of normal expiration of your term of service.
Not sure of the other services, but in the Coast Guard this is not completely true. Members assigned to afloat units can not refuse NJP. Only members assigned to shore units have this option. If the CG does this, my guess is that the Navy does as well, but that’s just a guess as they usually have similiar policies.
At a guess, could this be because a Court Martial requires some minimum number of officers, and that on the small vessels operated by the Coast Guard, this minimum number of officers would not typically be available? If this is the case, then there would be no problem on, say, a Navy aircraft carrier with doing a court martial instead of NJP.
I did a little checking now that my curiosity is up. From US Code:
Title 10, Sub A, Part II, Chpt 47, § 815: Art. 15. Commanding officer’s non-judicial punishment
So, I guess it doesn’t matter what service you’re in.
Larger ships may have the people, but probably lack the time, training and resources to effectively convene a proper court martial. For the serious offenses, they’ll just drop the offender off at the nearest brig and let “Harm” and “Mac” handle it.
No. Navy personnel have an absolute right to court martial, no matter where they’re stationed. They’ll either bring JAGs to the ship, or the accused will be transferred to a shore command for prosecution. I’ve seen both happen, and yes, I am aware that “data” is not the plural of “anecdote”.
One anecdote I will share involved two people in my unit. They were both brought to captain’s mast for oral sex. IIRC, it wasn’t the oral sex per se that was the charge, though; it was the fact that said encounter happened in a relatively public area of the ship, and thus, constituted a violation of good order and discipline. I think they each got 14 days restriction but no loss of rank or pay because the offense was so minor.
This does not appear to be the case as I read it. The Article 15 cite I quoted above is from the UCMJ, and is not service specific. While vessel Commanding Officers may allow a member to refuse NJP and put them ashore, the point remains, as I see it, that service members attached to or embarked in vessels have no right to court martial in lieu of NJP.
To further that, I found this at a Navy JAG website:
Is there a universal definition of sodomy? Arizona’s sodomy law which was taken off the books by the legislature defined it as non-procreative sex which covers an awful lot of territory. All kidding aside “unnatural act” is an incredibly vague term that probably wouldn’t withstand a judicial review in the civilain world.
I never gave article 125 much thought when I was in the military as no one was ever charged for going into town for some fun. The running joke was that a true friend was one who went to town, got two BJs and gave you one of them.
My understanding from someone fairly knowlegdeable in the military is a NJP is a sort of plea bargain. Under ordinary circumstances (the others possibly mentioned here would exceptions), the military can offer a NJP, or force a court-martial. Unless you are innocent and know you can win a court-martial, the NJP will be preferable. Lots bad can happen if you lose a court-martial. Like military prison, and a Dishonorable Discharge. With a DD, you lose not only military benefits, but also will have a BIG black mark against you seeking civilian employment. Far better to take the NJP, and then if disgusted with the military just resign. Resignation tends to be easy in the military except in cases of war or imminent hostility. The military would much rather replace you with an eager new recruit than keep you around as a malcontent with a history of bad behavior. If the military accepts your resignation, then you’ll get something better than a DD. Only a DD is associated with dishonor. The other discharges are either neutral, and in the case of an Honorable Discharge, a badge of honor.
And to the extent that the military may be able to force a NJP, if they do it is probably a blessing. This guarantees that you won’t get a DD, and almost certainly means you will have the unilateral option of getting an OK discharge or a HD if you push the issue. (Although the latter could possibibly not be an option in the event of hostilities.)
There is no universal definition of sodomy. A point I brought up earlier. I can’t imagine if I were in the military and demanded a court-martial if my girlfriend voluntarily gave me oral sex I’d be convicted. Have you ever known people in the military? If in the barracks I told of how my girlfriend gave me a blow job I’d probably get a slap on the back from fellow soldiers. Anything less and they’d probably look at me wondering if I was straight? Any sort of sexual action with chicks isn’t something to be ashamed of in the military.
UCMJ Art. 125 defines Sodomy as “unnatural carnal copulation” with a person or an animal. The Manual for Courts Martial (link to 867 page PDF from Mr. Moto) explains:
Although there is no “unversal” definition of sodomy in a linguistic sense, the legal definition of sodomy at common law included taking another person’s sexual organ into one’s mouth or anus or placing one’s sexual organ in another’s mouth or anus.