Academic journal article Duke Journal of Gender Law & Policy

Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed

Academic journal article Duke Journal of Gender Law & Policy

Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed

Article excerpt

I. INTRODUCTION

This article is about the prosecutions of certain sex crimes in the armed forces, many of which may well not constitute offenses in our civilian society. In the military, a number of offenses arise out of sexual conduct that is noncommercial and consensual between, and even among, consenting adults. There are, of course, the classic common-law crimes of rape and a variety of assaults with the intent to commit some sexual act against the will of the victim. For example, Article 120 of the Uniform Code of Military Justice (UCMJ) (1) proscribes rape and defines it by explaining: "Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct." Article 120 has been amended to define broadly the type of conduct to be punished under this title. (2) This article is not about this classic common-law crime of rape, which is punishable in both military and nonmilitary settings. Rather, it is a discussion of sexual conduct that, while punishable if it occurs within the military, may well constitute lawful conduct in a non-military setting.

Before we begin the discussion, it is important to consider the composition of our modern armed forces. Beginning in 1976, with the first admission of women to the military service academies and the ever-increasing addition of women to the enlisted ranks and grades within the services, both the role and the number of women in the armed forces have increased dramatically. These women are integrated into the armed forces in the very same way that women are integrated in civilian life into educational institutions and the work force, with one notable exception. As the Supreme Court observed in In re Grimley, the military "is the executive arm ... [whose] law is that of obedience." (3) While members of the military community enjoy many of the same rights and bear many of the same burdens that members of the civilian community do, within the military community there is not the same autonomy and freedom of movement that there is in the larger civilian community. (4)

To understand this discussion, one also needs to consider that in large part there are no specific, congressionally-enacted laws prohibiting many of the "sex crimes" that are prosecuted in the military. To find the genesis of these offenses, we need to look at Article 134, UCMJ, which provides:

   Though not specifically mentioned in this chapter, all disorders
   and neglects to the prejudice of good order and discipline in the
   armed forces, all conduct of a nature to bring discredit upon the
   armed forces, and crimes and offenses not capital, of which persons
   subject to this chapter may be guilty, ... shall be punished at the
   discretion of that court. (5)

To implement this congressionally-enacted prohibition, the President, as Commander-in-Chief of the Armed Forces, has deemed by executive order that a number of acts are punishable under this Article. Of course, many of the crimes prosecuted under Article 134 have nothing to do with sexual misconduct. (6) On the other hand, a laundry list of sexual misconduct may be punished under Article 134, including adultery, (7) pandering and prostitution, (8) and solicitation. (9)

II. FRATERNIZATION

The crime of fraternization, one of the most interesting crimes prosecuted under Article 134, is a good place to start. The crime of fraternization is committed when (1) it is against the customs and traditions of the services for an officer to "fraternize on terms of military equality with one or more certain enlisted member(s) in a certain manner" and (2) "such fraternization violated the customs of the accused's service that officers shall not fraternize with enlisted members." (10)

Fraternization has been punished as a military offense throughout military history. …

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