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A panel of legal scholars has suggested that Congress remove sodomy as a crime punishable under the Uniform Code of Military Justice, a recommendation that could boost efforts to end a ban on gays serving openly in the U.S. military.

The Commission on Military Justice recommended that Article 125, which deals with sodomy, be repealed, arguing that “most acts of consensual sodomy committed by consenting military personnel are not prosecuted, creating a perception that prosecution of this sexual behavior is arbitrary.”

In its report — dated October 2009 — the commission suggested several changes be made to the UCMJ, including a requirement that law enforcement officials videotape interrogations. The panel’s discussion of Article 125 has gotten the attention of “don’t ask, don’t tell” opponents.

“Public opinion about private, consensual sexual conduct has shifted dramatically since the military sodomy ban was written into law almost a hundred years ago,” according to Nathaniel Frank, a senior research fellow at the Palm Center, a University of California, Santa Barbara, research institute focusing on gays and the military.

“To say that gays should be banned from the military for this outdated reason makes no sense,” Frank was quoted as saying in a center news release.

It’s the second time the commission recommended repealing the law, the first time was in 2001.

Sodomy is defined in the Manual for Courts-Martial as “unnatural copulation with another person of the same or opposite sex.” Under the UCMJ, sodomy — which includes oral sex — is considered a criminal act, even among consenting adults and married couples.

“The vast majority of heterosexuals engage in sodomy as defined in Article 125 and the Manual for Courts-Martial,” said Kevin Nix, a spokesman for the Servicemembers Legal Defense Network. The organization strongly opposes both “don’t ask, don’t tell” and the sodomy law.

“In fact, it appears that the majority of people prosecuted under Article 125 are straight,” Nix said in an e-mail to Stars and Stripes. He described the law as “a legal anachronism” and said it was selectively enforced.

A repeal of the sodomy law is long overdue, according to Walter T. Cox, who heads the military justice panel. Cox is a former chief justice of the U.S. Court of Appeals for the Armed Forces.

“In my judgment, it causes people to disrespect the law when you have a law in place that people don’t agree with and don’t obey,” Cox said in a telephone interview.

Pointing to the fact that several changes recently have been made to Article 120 of the UCMJ in regard to prosecution of rape, sexual assault and other sexual misconduct, the panel argues, “there is no need for a separate provision making sodomy a military crime.”

“You’re not giving anything away by repealing [Article 125],” Cox said.

In its report, the commission also mentioned a 2003 Supreme Court ruling — Lawrence vs. Texas — that found a Texas law that prohibited sexual acts between same-sex couples was unconstitutional. Because of the ruling, the commission argues, “the provision of Article 125 that punishes consensual sodomy is in doubt.”

The report is sponsored by the National Institute for Military Justice and the American Bar Association.

Any changes to the UCMJ have to be approved by Congress and signed into law by executive order.

Cox said he’s unsure if Article 125 will be repealed.

“The Department of Defense traditionally does not like change. Their mantra is ‘if it’s not broke don’t fix it,’” he said.

Other recommendations

Earlier this month, the Commission on Military Justice delivered to Congress its recommended changes to the Uniform Code of Military Justice.

Perhaps the most controversial suggestion is the repeal of Article 125, which makes sodomy a criminal behavior.

Other recommendations made by the panel of legal scholars:

Require law enforcement officials to videotape interrogations.

Prohibit prosecutors from attacking the credentials of expert defense witnesses who were provided by the government as a substitute for those requested by the defense.

Consider allowing defendants to waive their right to appellate review in pre-trial agreements. That would give defendants more leverage when negotiating plea bargains.

Allow servicemembers to appeal their convictions all the way to the Supreme Court.

Create penalties for servicemembers who abuse or abandon animals. The only animal protection provision covered under the UCMJ is for animals used by the military, such as working dogs.


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