Is Being Gay a Crime?
Criminalization of Sodomy
It is a federal crime for a military servicemember
to commit sodomy. The military has its own criminal
justice code, called the Uniform Code of Military Justice
(UCMJ), which was enacted by Congress in 1951. Article
125 of the UCMJ provides as follows:
 (a)
Any person subject to [the UCMJ] 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.
Both homosexual and heterosexual servicemembers have
been and continue to be criminally prosecuted by the
military for acts of sodomy.
By contrast, it is not a federal crime for a GLBT servicemember
to violate the
“Don’t Ask, Don’t Tell” policy;
rather, in most cases it is simply grounds for an administrative
discharge, usually under honorable conditions.
In 2001, a commission convened by the National Institute
of Military Justice, and headed by former Chief Judge
of the U.S. Court of Appeals for the Armed Forces Walter
T. Cox III, reviewed the UCMJ on its 50th anniversary.
This Cox Commission concluded that Article 125 and several
other articles governing consensual sexual activity
needed to be repealed and replaced with a comprehensive
Criminal Sexual Conduct Article that was modeled more
after civilian criminal statutes. After the U.S. Supreme
Court decision in Lawrence v. Texas struck down Texas’
anti-sodomy statute, military courts have suggested
that Article 125 may no longer stand further constitutional
scrutiny and have overturned several military sodomy
convictions. At the present time, however, Article 125
remains on the books.
MEA agrees with the findings of the Cox Commission
and supports the eventual repeal or modification of
Article 125. However, at present MEA’s political
and legislative strategy is focused on the repeal of
“Don’t Ask, Don’t Tell,” which
it believes will have a greater positive impact on the
majority of GLBT servicemembers.
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