Pressing Reform

Never let it be said that Congress isn't capable of coming together to tackle the important problems.  First horse slaughter, and now....
On Nov. 15, the Senate Armed Services Committee unanimously approved S. 1867, the National Defense Authorization Act, which includes a provision to repeal Article 125 of the Uniform Code of Military Justice (UCMJ).  Article 125 of the UCMJ makes it illegal to engage in both sodomy with humans and sex with animals.
This still has to get by the conference committee, because for some reason the House didn't think of this obvious improvement to good order and discipline.  Don't worry, though:  there's still time to get it done for the holidays.

I think every unit that worked closely with the Iraqi forces has stories to tell about the tender love between man and beast.  Perhaps this is all in the interest of cultural exchange?  Hearts and minds, I suppose.

15 comments:

Joseph W. said...

Article 125 covers both consensual and nonconsensual sodomy, but the penalties for doing it "by force and without consent" or "with a child" are way, way bigger than the penalties for doing it with an animal. (This is not apparent from the text of the statute, but if you check the Manual for Courts-Martial, you'll see that it's the case.) The catch-all rape statute (Article 120) already contains langauge to forbid the nonconsensual/child stuff, but maybe they'll modify that too.

The problem with Article 125 is that consensual sodomy sometimes gets charged as a "prosecutor's consolation prize" in rape cases - "okay, maybe we can't prove he forced her to have oral sex with him, but we'll get the conviction because he admits she did it willingly."

The offense of "indecent acts with another" (which now falls under Article 120) gets used the same way, and I think that is a shame. Although the language is broad, in practice it's used for "public" sexual acts..."public" meaning where even one other person could see the act; for example, you can actually be convicted for a voluntary "threesome" because the third participant was in the room.

I've actually seen a Soldier acquitted of rape stuck with an "indecent acts" conviction for having a voluntary threesome...not a pretty sight.

"Abusing a public animal" is still an enumerated offense under Article 134, and we've still got the catch-alls of "unspecified 134" (it's a crime to do anything that tends to bring the Armed Forces into disrepute), or Article 133 (conduct unbecoming an officer). So, even with the sodomy statute repealed, I would still recommend against, you know, that. (Mark Steyn already made all the sheep-shagging "embraceable ewe" puns there are, so I have no cleverer way to put it.)

MikeD said...

Without being indelicate, Article 125 punishes activities that many married couples consider foreplay. I know I for one violated this Article when I was in the Army. And I suspect many other sexually active soldiers did as well.

Grim said...

All that is very well and good, gentlemen, but why not revise the article so that it only bans bestiality rather than repealing it outright?

I realize that the article is being edited largely as a consequence of the end of DADT; but isn't it the position of even the staunchest supporter of gay rights that there is no connection whatsoever between gay sex and bestiality? They should be the first ones on board with keeping the anti-bestiality statute; to do otherwise seems to throw raw red meat to the slippery-slope advocates on the other side.

Joseph W. said...

Grim - that would be one way of doing it. An even simpler way: abolish the article completely, and let the President add "Bestiality" to the enumerated offenses under Article 134. It would fit in very neatly there, and you wouldn't need an Act of Congress.

Grim said...

Perhaps so, but we're having an act of Congress on the subject anyway; on balance isn't it best if the law is made by the legislature, especially if it isn't out of their way? Or is that hopelessly old fashioned?

BillT said...

Judging by what the legislature has produced in the past few years, the law would probably turn out better-written and more easily understood if you let a kangaroo rat dance on a keyboard...

Joseph W. said...

I think it'd be a wash - as long as it can be punished, I don't care where the law is, and I suspect you don't either. (And again, I think that any real-world bestality case will be punishable under Article 134 even if it isn't added to the enumerated offenses.)

But I am glad to see one of these "prosecutorial booby-prizes" being excised from the code, so overall this is a good move, regardless.

Texan99 said...

You're going to have to answer to the North American Man-Beast Love Association.

Grim said...

I do agree, Joe, about the desirability of ending those 'booby prizes.' Charging a guy with two crimes for one act has always seemed to me like a violation of the principle of double jeopardy (let alone ten crimes for the single act).

I understand the cases where someone is both robbing and assaulting you; but where they are simply being tried for lesser versions of the same offense, it gives the state too much room to hedge its bets. Instead of having to charge you with the crime they are sure they can convict you for, they can charge you with the higher crime they just wonder if they might be able to get away with if they draw the right jury.

Texan99 said...

On the other hand, as a juror, I'd appreciate being given three or four choices, from mild to severe crime, depending on how I viewed the facts. I don't necessarily want to choose between over-penalizing a criminal defendant and putting him back on the street.

Joseph W. said...

I'm with Texan on the basic idea (and of course lesser included offenses are automatically charged, at least in military court they are, so that the panel can do precisely what Texan is talking about).

The situations I'm talking about - with these "booby prizes" in the UCMJ - are obnoxious in a different way, because the "crimes" in question are not only legal outside the military, but they never get charged except as "consolation prizes" in more serious cases. Let me give you some examples - greatly transformed from the real-life examples on which they are base.

Fact Pattern #1: Lieutenant Shearer makes a sex tape with his girlfriend. It includes oral sex. Two months later, Captain Ovian catches his wife with the tape. Mrs. Ovian swears that she didn't want it, and that Lieutenant Shearer had been bugging her for sex and had dropped the tape in her purse when she wasn't looking.

Lieutenant Shearer is court-martialed. He is charged with "conduct unbecoming an officer" for harassing Mrs. Ovian. He is charged with sodomy because, as the tape shows, he had "unnatural carnal copulation" (oral sex) with his girlfriend.

Under facts like these, he might well be acquitted of conduct unbecoming. It'll be a swearing contest between him and Mrs. Ovian, and the facts suggest a motive for her to bend the truth a bit. But the prosecutors have a slam-dunk for the sodomy.

What's especially offensive here is that the sodomy isn't what gives the case its moral impact. No one in the command gives a damn what he does with his girlfriend. But having decided to go after him on the other charge, they're using this sodomy to make sure he gets convicted of something and his career suffers, even if he's acquitted of the bad business.


Fact pattern #2 - Barracks party. Three soldiers and three girls go into a bedroom, pair off, and make out. One of the girls later claims to have been raped (while everyone else says it was all consensual). Soldier is charged with rape and with "indecent acts" (because the other couples were present and could see them doing it).

Here, the same undisputed sex act is being charged a couple of ways, but only one gives the case its moral impact. Some people care about whether the troops sleep around, but as for whether they do it with only one couple in the room or more than one - no one cares; it adds no moral impact. But because that law is still on the books, the prosecutors can get a slam-dunk conviction for indecent acts, and hurt the soldier's caree, even if he's fully acquitted on the rape charge.

So I'm with Texan99 on the basic idea, that there's nothing wrong with charging a real criminal act in a couple of ways. (And often, the alternative crimes are lesser included offenses of the original charge, so that the jury can tailor their verdict to the proof.)

But in these cases I'm talking about, if the accused is acquitted of the real crime, he ought to walk free - not get a court-martial conviction in his record for one of these rubbishy little crimes. Congress would do well to get rid of them both.

Joseph W. said...

P.S. - In the first fact pattern, I forgot to say, assume Lieutenant Shearer totally denies making any approaches to Mrs. Ovian - in fact, he says, she's been stalking him, and she stole the tape out of his desk on Organization Day.

Texan99 said...

No excuse in my book for criminalizing consensual sex acts between adults.

Joseph W. said...

Well, in the military context there are some reasons for doing it - but these statutes are not a good match for those reasons.

For example, Adultery is a specified crime under the general article (that means it's a crime in the military - but only if the adulterous act in question is prejudicial to good order and discipline, or tends to bring the military into disrepute). You can see the point - officer sleeps with soldier's wife; soldier and officer now want to kill each other; but they're supposed to serve in combat together...not good news for cohesion in the unit. So we forbid it by law.

(On the other hand, imagine a female soldier married to a civilian. She hasn't seen him in years, he's in prison, they're just waiting for the divorce paperwork to become final - and she picks up a boyfriend. In that case, it's adultery, but it has no effect on the military, so it's not a crime.)

In Iraq, some of the units I served with had "no visitation" orders - no boys in the girls' trailers, no girls in the boys' trailers. (Which pretty much outlawed sex, and no, I'm not asking other readers for port-a-potty sex stories.) The units I saw that did this managed to get out of theater without any rape accusations, which was not the case for the ones that didn't.

So those orders, while they restrict consenting-adult sex, make sense for the military. But these statutes that we're talking about, they don't.

Texan99 said...

Oh yes -- I only meant that if sex is permissible at all, it's none of our business what kind of sex.