Saturday, September 29, 2007

Interesting comment about military law

NIMJ's web site has a fascinating article about General Pace's recent testimony concerning "Don't Ask, Don't Tell." In defending a policy of excluding gays from the military, General Pace said, among other things, "Sir, the uniform code of military justice makes it illegal for members of the same sex or members of the opposite sex who aren't married to have sex with each other. That is the law, and I am upholding it." Of course, that isn't the law at all. In fact, one of the Court of Military Appeals' earliest decisions observed, "It is true, as urged by appellate defense counsel, that fornication, in the absence of aggravating circumstances, has been held not to be an offense under military law. United States v. Ord, 2 CMR(AF) 84. This is consistent with the view expressed earlier herein that Congress has not intended by Article 134 and its statutory predecessors to regulate the wholly private moral conduct of an individual." United States v. Snyder, 1 C.M.A. 423, 427, 4 C.M.R. 15, 19 (1952). Later in the same paragraph, CMA noted that "simple fornication is not an offense cognizable under military law." Id.

Chief Judge Everett has provided this helpful synopsis of the law governing fornication in the military:

In summary, the treatment of adultery and fornication in military law seems to be this: (a) two persons are guilty of adultery whenever they engage in illicit sexual intercourse if either of them is married to a third person; (b) if unmarried, they are guilty of fornication whenever they engage in illicit sexual intercourse under circumstances in which the conduct is not strictly private; and (c) private sexual intercourse between unmarried persons is not punishable.

United States v. Hickson, 22 M.J. 146, 150 (C.M.A. 1986).


No Man said...

Query: Does Lawrence v. Texas change the adultery rule when the an unmarried person has sex with a married person in a strictly private manner? A case from the NMCCA said it doe snot, and why it does not would surprise all of you Establishment Clause buffs:

As this court recently noted in United States v. Orellana, ___ M.J. ___, 2005 CCA LEXIS 367, No. 200201634 (N.M.Ct.Crim.App. 29 Nov 2005), while the primary purpose of the adultery statute under Article 134, UCMJ, is to maintain good order and discipline within the service, it does "secondarily" foster "the fundamental social institution of marriage."

United States v. Taylor, 62 M.J. 636, 636 (N-M. Ct. Crim. App. 2006). The social instituion of marirage? What social institution says a marriage MUST be monogamous? From what I know about divorce law, which isn't much, condonation (or acceptance of adultery) is a defense in most states to adultery grounds for divorce. MUST be monogamous . . . that would be the religious institution of marriage.

Nancy Truax said...

I wonder how this would play out in an Eisenstadt context -- military member has an adulterous relationship with a civilian who is not subject to the UCMJ, but who arguably has a constitutional right to engage in an adulterous relationship but has no way to enforce that right in a military court or any other court.

Now that I'm retired (on terminal leave, anyway) I have a little more time to ponder these things...

Phil Cave said...

Is not the status of the other person a consideration on whether or not it is UCMJ punishable adultery.