The weirdest military justice story of 2011: the strange tale of the non-repeal of Article 125 [Warning: includes offensive material]
If you ever find yourself on Jeopardy! and hear Alex Trebek say, “The reason the UCMJ’s sodomy provision was not repealed in 2011,” the correct response is: “What is bestiality?” Allow me to explain.
We previously noted the changes that the National Defense Authorization Act made to the UCMJ. But that statute is also notable for a change that it doesn’t make.
The Senate’s version of the DOD Authorization Act would have repealed Article 125, which criminalizes sodomy. The revised version of Article 120 defines “sexual act” to include contact between the penis and not only the vulva, but also the anus or mouth. As a result, what used to be (and still is) forcible sodomy under Article 125 is also covered by Article 120. But Article 125 covered (and still does) another offense, as well: bestiality. And that offense isn’t covered by Article 120. A strange coalition emerged to oppose the repeal of Article 125 due to concern over bestiality. The conference committee report suscintly summarizes the outcome:
The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy.
The House bill contained no similar provision.
The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).
157 Cong. Rec. H 8583 (daily ed. Dec. 12, 2011).
Article 125, titled “Sodomy,” provides:
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.
(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.
Military case law had long construed Article 125 to criminalize, among other offenses, consensual, heterosexual, noncommercial, adult, private acts of oral sex. The maximum punishment for that heinous offense was (and is) five years of confinement and a DD. From time to time, for one strange reason or another, some servicemember would be convicted of violating Article 125 by engaging in consensual heterosexual oral sex and the conviction would ultimately be upheld on appeal (despite the valiant efforts of one Judge Jack L. Rives in the case of United States v. Fagg, 33 M.J. 618 (A.F. Ct. Crim. App. 1991), rev’d, 34 M.J. 179 (C.M.A. 1992)). Military justice practitioners often commented on a certainly hypocrisy in the system, but the gays in the military issue made Article 125 the third rail of military justice reform — no one would touch it.
Then along came Lawrence v. Texas and, not long thereafter, United States v. Marcum. Under Marcum, servicemembers still can be (and sometimes are) convicted under Article 125 for private, consensual, adult acts of oral or anal sex. When that occurs, Marcum has us ask, basically, “Is there some reason other than the sex act itself why the military should be upset about these two people engaging in intimacy?” And if the answer to that question is yes, then we convict the accused not on the basis that causes the military to be upset– be it fraternization or some other reason – -but of the sex act itself. If Article 125 were to be repealed, then acts that are currently punishable as consensual sodomy would instead be punished as an orders violation, an Article 133 violation, or an Article 134 violation. Such a conviction would more accurately reflect the gravamen of the offense. It would also generally carry a maximum punishment less than the 5 years and a DD that the President has prescribed as the max for consensual oral or anal sex.
The repeal of Don’t Ask, Don’t Tell turned off the power to the third rail and on 1 December 2011, the Senate passed a version of the DOD Authorization Act that repealed Article 125. Then all hell broke loose.
The Family Research Council appears to have raised the issue first, blogging about it here under the headline, “Bestiality Should Give Leaders Paws in Troop Bill.” The post stated, in part: “[I]n its rush to accommodate the Left, Congress may have inadvertently opened the door to even more perversion. As part of the Defense Authorization bill, liberals are pushing to make sodomy a legal activity under the Uniform Code of Military Justice (UCMJ). In its haste to make gay sex an official part of military life, the Left could be unintentionally repealing the ban on bestiality too.”
Cue Les Kinsolving. For those of you who don’t know him, Les Kinsolving is WorldNetDaily’s White House correspondent who has been described by Baltimore City Paper as “[t]he notorious right-wing gadfly of the White House press corps, who has badgered every president and press secretary since Richard Nixon with nakedly biased and sometime bizarre queries.” At a 5 December White House press conference, the following exchange occurred:
Q The Family Research Council and CNS News both reported a 93-to-7 U.S. Senate vote to approve a defense authorization bill that, quote, “includes a provision which not only repeals the military law on sodomy, but also repeals the military ban on sex with animals, or beastiality [sic].” Does the Commander-in-Chief approve or disapprove of beastiality [sic] in our armed forces?
Q You don’t want to comment on that?
Then things got weird. PETA attacked Jay Carney for daring to suggest that asking whether the President supports bestiality in the armed forces isn’t a serious question. (The PETA Media Center’s website is down at the moment, so I can’t provide a link. I’ll update with a link later if the site comes back up. Here’s a link to a Politico article quoting PETA’s reaction.)
Glenn Beck and House Member and GOP Presidential Candidate Michele Bachmann then discussed the issue on Glenn Beck’s 7 December web show. (Clip available here.) Representative Bachmann pronounced the Senate vote to repeal the bestiality ban “abhorrent” and “reprehensible” and exhorted viewers to contact their legislators and the White House.
The issue was even discussed on the 14 December Colbert Report, here. But by then, the horse was actually back in the barn. The House and Senate conferees, who filed their report on 12 December, had already removed the Article 125 repeal from the bill.
This leads to an interesting thought experiment: if Jay Carney hadn’t called on Les Kinsolving at the 5 December press conference, would Article 125 have been repealed? If so, in that alternative universe, would bestiality be legal or illegal in the military?
Those of us who practice military justice know that, on rare occasions, servicemembers do engage in bestiality. When I was a student at Naval Justice School in those halcyon, pre-Tailhook days of 1987, we learned about the case of United States v. Sanchez, 11 C.M.A. 216, 29 C.M.R. 32 (1960), which, we were told, raised the age old question: Which came first, the chicken or Sanchez? Nor is the bestiality prohibition some relic of a bygone day, like Article 114′s criminalization of dueling; there has been at least one fairly recent bestiality prosecution in the armed forces.
If Article 125 no longer existed, could an act of bestiality still be charged under the UCMJ? Of course. Bestiality would certainly be of a nature to discredit the armed forces and, hence, punishable under Article 134. See generally United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011). But what would the maximum punishment be? Would it be considered a general disorder and, hence, under Beaty be punishable by only four months of confinement and forfeiture of 2/3 pay for four months, with no punitive discharge authorized for an enlisted accused? Would it be governed by the maximum punishment for abusing a public animal and hence be susceptible to only confinement for three months and forfeiture of 2/3 pay for three months? Is there a federal statute applicable to civilians that criminalizes bestiality? If not, it appears that in a world without Article 125, the maximum court-martial sentence for bestiality would be considerably less than the 5 years’ confinement and DD currently authorized by Part IV of the Manual for a bestiality offense. Which brings us to another chicken and egg problem. Under the preemption doctrine, the President can’t prescribe an Article 134 bestiality offense while Article 125 still criminalizes sex with animals. But will Congress refuse to repeal Article 125 until bestiality is already criminalized in some other form with a more severe punishment available than confinement for four months? Perhaps a generic Article 134 animal cruelty provision with a sufficiently severe maximum punishment could cover that base and allow for the repeal of Article 125. It would also address one of the concerns raised by the Cox Commission II Report. Perhaps PETA, after proclaiming itself unamused by Jay Carney’s response to Les Kinsolving’s bestiality question, will have the last laugh.