MILITARY OUTREACH COMMITTEE Policy and Legal Team 2 August 2010

Subj: UCMJ / STANDARDS OF CONDUCT BACKGROUND The Military Outreach Committee (MOC) formed the Policy and Legal Team to assist the Department of Defense’s Comprehensive Review Working Group (CRWG) in addressing potential issues previously identified regarding the implementation of repeal of the law commonly known as “Don’t Ask, Don’t Tell” (DADT).

DISCUSSION Issue: One of the issues the MOC identified that would likely need to be addressed, with repeal of DADT, by the CRWG is the Uniform Code of Military Justice and Standards of Conduct as they relate to lesbian, gay and bisexual (LGB) servicemembers. Rule: Currently under DADT, the Standards of Conduct do not specifically address samesex conduct/relationships. The UCMJ’s Article 125 (Sodomy) facially prohibits sexual acts common among both same-sex and opposite-sex couples. Article 133 (Conduct Unbecoming an Officer) has been used to prosecute same-sex sexual relationships. See United States v. Harvey.1 Analysis: Despite the recommendation to delete Article 1252 from the UCMJ with the incorporation of the revised Article 120 (Rape, Sexual Assault, and Other Sexual Misconduct),

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United States v. Harvey, 67 M.J. 758 (A.F.Ct.Crim.App. 2009).

SEX CRIMES AND THE UCMJ: A REPORT FOR THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE 1724 (Feb. 2005), available at

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Article 125 remains with Article 120’s ability to charge both forcible and underage sodomy (as sexual contact) and Article 125 still available for forcible and underage sodomy as well as consensual sodomy between both same-sex and opposite-sex consenting adults.3 In light of Lawrence v. Texas4, the Court of Appeals for the Armed Forces held in United States v. Marcum5 that Lawrence v. Texas requires a case by case review of constitutionality rather than a facial attack on Article 125 itself, and that the analysis consists of the consideration of three questions: 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 of factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?6

The Marcum test would appear to permit consensual acts of sodomy where there are no military specific exceptions, such as a supervisory relationship, regulations prohibiting sexual

http:www.defenselink.mil/dodgc/php/docs/subcommittee_reportMarkHarvey1-1305.doc
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Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, The Army Lawyer, Jan. 2009, 13-17.
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Lawrence v. Texas, 539 U.S. 558 (2003). United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). Id. at 206 (citing Lawrence v. Texas, 539 U.S. 558, 578 (2003).

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relationships within a unit (such as in United States v. Stirewalt7), etc. Since the impact of this appears to be apply equally across the board, the repeal of DADT would not be impeded by the requirement to change the UCMJ. It is, however, our opinion that Article 125 is unnecessary and should be removed from the UCMJ in light of the changes to Article 120 and other articles of the UCMJ which are able to deal with issues that affect both same-sex and opposite-sex relationships, such as Article 134 (Conduct Prejudicial to Good Order and Discipline / Fraternization) and Article 92 (Violation of a General Order). We are also of the opinion that no changes need to be made to any Standards of Conduct as long as they make no distinction between same-sex and opposite-sex relationships. Conclusion: Repeal of DADT does not require immediate statutory changes to the UCMJ nor any Standards of Conduct. RECOMMENDATION None at this time.

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United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004).

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