Successful Navy Sodomy Appeal

Military appeals court reverses conviction for heterosexual anal sex

In a rare move, a unanimous three-judge panel of the U.S. Navy-Marine Corps Court of Criminal Appeals has reversed a sodomy court martial conviction. Ruling on an appeal by John J. Humphreys, a Navy aviation machinist’s mate airman, the court found that the constitutional liberty interest, which the Supreme Court described in the 2003 Lawrence v. Texas ruling, precluded prosecuting Humphreys for his consensual anal sex with a female companion in a Navy barracks bedroom.

The ruling, in an unpublished decision by Senior Judge Greg Carver released on December 29, marks an unusual departure from other sodomy cases decided by military appeals courts over the past two years. It has been clear since the Lawrence decision that the military would have to confront the question whether Article 125 of the Uniform Code of Military Justice, which makes sodomy a military crime, could continue to be applied.

In a 2004 decision, U.S. v. Marcum, the Court of Military Appeals ruled that Lawrence required special consideration of constitutional concerns in military sodomy cases. That ruling devised a three part test to determine if sodomy prosecution was appropriate—whether the conduct was protected by Lawrence; whether any of the Supreme Court’s exceptions, including the involvement of minors, public conduct, or the use of force or coercion, applied; and whether there were particular considerations arising from the military environment that made criminal sanctions appropriate despite Lawrence.

In subsequent sodomy appeals in the military courts, almost every conviction has been upheld, because the conduct involved either adultery, minors, or interactions between military members of different ranks, such that the court considered it as a threat to unit good order or morale.

The appeals court decided that Humphreys’ case failed to raise any of these issues. Humphreys and the woman identified in the original prosecution as the “victim,” both Navy members of similar rank, were on a date. Alone in Humphreys’ barracks quarters, they engaged in rough sex, during which Humphreys bit her on the arm and neck, tied her down, and entered her from the rear, stopping once she complained that it hurt. After getting dressed, they went out again and continued to socialize for the evening.

Humphreys was later charged with other offenses involving different individuals, and during the course of those investigations this woman was questioned and recounted that evening’s events. Military authorities decided to prosecute Humphreys for rape and sodomy in connection with this event, but the court martial jury rejected the rape charge, finding the woman was a willing participant, and convicted on the sodomy charge, for which consent is not a defense. Humphreys was also convicted of other charges not related to this incident.

The government argued on appeal that the Marcum test did not protect Humphreys, but the court rejected that view. In some prior cases, sexual conduct on a military base or ship has proved incriminating to defendants, but in this case the court noted that it took place in a private bedroom, where Navy rules do not generally forbid sex. Judge Carver also found that since the court martial acquitted on the rape charge, there was no basis for concluding that the conduct was other than consensual, and since both parties were of the same rank, there was no coercion issue.

Finally, Carver could not find any special circumstances arising from the military environment that would justify the prosecution.

“We will not speculate about the impact on morale within the unit,” wrote Carver, who noted that despite the fact that the woman’s co-worker noticed a hickey on her neck, there was “sparse” evidence that the sodomy was widely known about on the base. Humphreys apparently did not “brag” about it, nor was his woman companion impaired on her job as the result of it, the court found.

Most of the other military sodomy appeals since Lawrence have also involved heterosexual conduct, but unlike those others this case related to anal as opposed to oral sex. There is nothing in the court’s opinion to suggest that the same considerations would not lead to the same result in a gay sex case, although of course gay sexual conduct would lead to discharge under the Don’t Ask, Don’t tell policy. The difference is that the discharge would not necessarily be accompanied by criminal penalties for the sexual conduct itself.

Humphreys’ convictions on the other charges against him were upheld, but the court ruled that the sodomy conviction for this incident had to be quashed. Still, his sentence to a 12-month confinement, loss of pay during confinement, and reduction in his pay grade were deemed appropriate for the other offenses, even absent a sodomy conviction.

The government could appeal this decision to the Court of Military Criminal Appeals, but that seems unlikely, since the original sentence was affirmed. The ruling is unpublished, though available to researchers, and therefore does not serve as an official precedent for other cases.