Posted by Eugene Volokh:
Reports of Sensible Decisionmaking Have Been Greatly Exaggerated:
Reader Jason Walta passes along [1]this item from The Advocate:
The Defense Department has sharply contradicted reports in The New
York Times and other media that sodomy would no longer be
categorized as a criminal act in the U.S. military.
Defense Department spokesman Lt. Col. Joseph Richard told
Advocate/OutQ News that the Pentagon is only recommending that the
laws prohibiting consensual sodomy be moved from one section of the
Uniform Code of Military Justice to another.
"We have placed it where it belongs, in the Manual [for] Court[s-]
Martial. Acts committed under that article are prejudiced to good
order and discipline in the military. We have not decriminalized
sodomy," he said. . . .
[T]he Pentagon believes that its specific claim that sodomy between
service members is detrimental to "good order and discipline" will
be enough to keep the ban from being struck down [as
unconstitutional]. . . .
I'm puzzled, though: The [2]current ban prohibits all "unnatural
carnal copulation," whether with another service member or with one's
non-service-member spouse or lover. Is the military planning to limit
sodomy to nongenital sex among service members? Will it limit it only
to nongenital sex that is within a unit or the chain of command and
thus potentially detrimental to "good order and discipline," or is its
claim that nongenital sex with any fellow service member, even someone
in a completely different unit, or possibly even with a
non-service-murder, is somehow prejudicial to good order and
discipline?
Also, why would nongenital sex be more prejudicial to good order and
discipline than genital sex? I assume (though maybe I'm mistaken) that
nongenital sex among service members is not a crime, unless there is
something that makes it a potential threat to good order and
discipline (for instance, that it's within the chain of command, or of
course that it's nonconsensual).
In any event, as usual with press accounts quoting or paraphrasing
people, take all this with a grain of salt; some important details may
have been omitted or misreported.
References
1. http://www.advocate.com/news_detail.asp?id=15919
2. http://usmilitary.about.com/library/milinfo/ucmj/blart-125.htm
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