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).