Milatary appeals court, reversing oral sex conviction, upholds soldier’s privacy
For the first time, a military appeals court has ruled that servicemembers have a constitutional right to engage in consensual sodomy under certain circumstances.
On November 30, the U.S. Army Court of Criminal Appeals, in an unpublished opinion, reversed the sodomy conviction of Specialist Kenneth M. Bullock, who pled guilty to engaging in oral sex with a woman in his barracks quarters, a crime under Article 125 of the Uniform Code of Military Justice, which prohibits service members from engaging in oral or anal sex.
According to the opinion for the court by Senior Judge Sarah Merck, Bullock met the woman, a civilian, at a social club on his military post and brought her back to the barracks, where they had consensual intercourse. Evidently things did not go entirely smoothly, since the woman later charged Bullock with assaulting her. The investigation of the assault led to military prosecutors discovering the consensual sex, and Bullock was charged with both acts.
Since he did not deny the consensual sex, Bullock decided to plead guilty on that count. Under military law, a guilty plea can only be accepted if the accused actually confesses to the elements of the crime, so the military judge questioned Bullock about the specifics at his court martial.
According to the transcript, quoted by the court, the judge asked Bullock, “Tell me exactly what part of your body went into what opening in her body?”
“My penis into her mouth, ma’am,” Bullock responded.
“And you actually penetrated her mouth with your penis,” asked the judge.
Bullock responded affirmatively.
Bullock pled not guilty to the indecent assault charge. During opening statements, the military prosecutor told the court, “This is a case about a soldier who took what began as an innocent, consensual encounter and pushed it far beyond what the military can accept as reasonable.”
Bullock was convicted on both charges and was sentenced to a bad conduct discharge, six months confinement, forfeiture of all pay and allowances and reduction in rank to Private E1. A conviction of this type results in automatic review by a higher court.
The court decided that the consensual oral sex was “squarely within the liberty interest recognized” in Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision striking down the Texas sodomy law.
The court emphasized that this was “a consensual encounter between two adults in the privacy of a barracks room” and did not involve any of the aggravating factors that would have taken it outside the strict boundaries of protected liberty as described in Lawrence. It did not involve a minor, public conduct or prostitution, or the abuse of a vulnerable person. The court particularly emphasized that the other participant was a civilian, so the case did not involve sex between servicemembers of different ranks, which was considered unprotected in two prior military appeals cases that have arisen since Lawrence was decided.
The government argued that this was not strictly private because it happened in a military barracks in the “presence” of Bullock’s roommate. However, Bullock’s testimony at his court martial made no mention of his roommate being present, and the court was evidently unwilling to treat a military barracks room as a “public place” for purposes of this case.
The court upheld Bullock’s conviction on the indecent assault charge, however, and reaffirmed much of his sentence, making a small reduction in prison time and financial penalties to reflect the reversal of the consensual sodomy conviction.
It is unclear what this case would mean if Bullock’s consensual sex in the barracks had been with a man rather than a woman. Even if the Army’s criminal appeals court were to find such conduct protected by the Constitution, that would not settle the question whether Bullock would be subject to discharge for “homosexual conduct” under the “Don’t Ask, Don’t Tell” policy. However, one can speculate that were a gay military member caught in this situation, the reasoning of the decision in Bullock’s case would suggest that in the absence of aggravating factors, any discharge should not be classified as “bad conduct.”
Ultimately, other lawsuits, including the one recently filed by the Servicemembers Legal Defense Network in Boston, will determinate whether the “Don’t Ask, Don’t Tell” policy is itself unconstitutional in light of Lawrence v. Texas. But the acknowledgement in the Bullock case that Lawrence serves as precedent in military law is significant and welcome.