Pentagon Says Sodomy/Bestiality Repeal 'Fails to Rise to Level of News'; But Former Chief Army Prosecutor Says 'Yes it Does'

December 9, 2011 - 4:39 PM

The Pentagon

(CNSNews.com) - A Defense Department spokesman claims that a provision in the Senate defense authorization bill that repeals the criminalization of sodomy and sex with animals – bestiality – was just a cosmetic change to military law that the Defense Department began eight years ago.

In an interview Thursday with CNSNews.com, Army Lt. Col. Todd Braesseale (pronounced: BRAZIL) said the provision was an effort to comply with the Supreme Court’s 2003 Lawrence v. Texas decision striking down state laws on sodomy.

“I’m not entirely sure of the timeline. I know it started immediately following the Supreme Court ruling on the Texas case, which ruled that states do not have an interest in upholding sodomy laws, and so at that point, the department, under the former administration, began work trying to align the Uniform Code of Military Justice into a set of codes and regulations that would be in line with the U.S. Constitution,” Braesseale told CNSNews.com.

The Pentagon spokesman also challenged the idea that the Senate bill strikes down Article 125 of the Uniform Code of Military Justice – and told CNSNews.com that bestiality is still illegal under military law.

Braesseale also said he "failed to see how this rises to the level of news."

Here is a transcript of the exchange between CNSNews.com:

--------------

CNSNews.com: OK, now this particular provision strikes down Article 125?

Army Lt. Col. Todd Braesseale: Well it actually doesn’t strike it down – it simply rewrites it --

CNSNews.com: -- Well, ‘repeals,’ correct?

Col. Braesseale: It repeals it as written, that’s correct.

CNSNews.com: OK, HOW does it “re-write” it? Where is it in the bill that “rewrites it?”

Col. Braesseale: Well, you’d have to read the entirety of it, but there are certain provisions that stipulate that forcible sodomy, of course, is still illegal. Issues that deal with abuse of animals and bestiality and that sort of issue, is still illegal.

Col. Braesseale: It simply removes the way that the term sodomy had been previously interpreted by the Department of Defense and its departments, as being anything other than the missionary position between a married couple.”

CNSNews.com: Where does it indicate that sex with animals – bestiality – is still illegal?

Col. Braesseale: Well Section 125 actually states that ‘any service member who engages in unnatural carnal copulation with another person, or -- of the same sex or of the opposite sex – or with an animal is guilty of sodomy. And that the offenders face court martial for any violations. That’s what it was originally written to say. So even if 125 is removed in total, and not simply reworded, 134, for example, forbids all disorders and neglects to the prejudice of good order and discipline to the armed forces and all conduct to bring discredit upon the armed forces – and that covers a host of crimes.”

CNSNews.com: OK, but that doesn’t cover something like bestiality –

Col. Braesseale: (interrupting) -- Well of course, there are any number of societal ills that the UCMJ doesn’t specifically cover, but does provide for commanders to have the wherewithal to act in keeping with good order and discipline of their units – for instance, back in the 1950s, that very article was used to prosecute a man who was guilty of bestiality.”

Col. Braesseale: I’m trying to figure out where the controversy is. I’m having a really difficult time figuring out how this is something which rises to the level of news.

CNSNews.com: I know that People for the Ethical Treatment of Animals has sent a letter to Defense Secretary Panetta talking about the fact that this leaves it open, as you indicated, for individual commanders, as to whether or not this ---

Col Braesseale: (interrupting): Well, it’s interesting to me that it takes bestiality to make the far right and far left agree on something.

----------------------

In fact, earlier this week, People for the Ethical Treatment of Animals sent a letter to Defense Secretary Leon Panetta complaining that the change makes bestiality prosecution harder -- and sends a bad message.

Richard H. Black

Virginia state Sen.-elect Richard H. Black (Photo courtesy of Black's office)

Meanwhile, the former head of the U.S. Army's Criminal Law Division at the Pentagon says the Defense Department spokesman is wrong -- removing the military law against sodomy and bestiality is big news.

Virginia State Senator-elect Richard Black, who was a member of the Joint Committee on Military Justice during the Clinton administration, told CNSNews.com that bestiality doesn’t happen very often – but removing the mention of it in the statute could create big problems.

The fact is, the Senate bill does remove bestiality from the statute.

“It creates some serious legal ambiguity,” Black told CNSNews.com. “Article 134 is the general article which prohibits various miscellaneous categories of misconduct. But the general rule of statutory construction is that if you remove something from the law – you intended to do so. And so there was a purpose in doing it. And the idea that it would automatically resurrect under the general article is unclear.”

But Black said the bestiality issue pales in comparison with the wholesale legalization of sodomy in the ranks. That, he says, is not just a “cosmetic change.”

“It is an historic change,” Black told CNSNews.com. “General George Washington issued orders prohibiting sodomy during the time that he led the Continental Army during the Revolutionary War. And he didn’t do it because he was homophobic – he did it because the practice of sodomy in the ranks is a major, major disruption to good order and discipline. So he had homosexuals drummed out of the service.”

Black said what Gen. Washington ordered at the time was a continuation of long-standing British law.

“We issued military regulations which prohibited sodomy and prohibited service by those who engaged in sodomy all the way up until Bill Clinton, during his presidency, made a major concerted drive to get gays in the military,” Black said.

“It almost collapsed his presidency, during its early days, and eventually he had to back off on it,” he added. “President Obama came in and made it a top priority –and with the help of people on both sides of the aisle, managed to rescind the law.”

“We’ve only had a federal law prohibiting sodomy for 17years – but we have had Army and Navy regulations that prohibited it for hundreds of years. So this is a major break in the practice of the military,” Black said.

“I think it is a major blow to good order and discipline that will come back to haunt us in the future.”

Pete Sprigg of the Family Research Council, said the Pentagon’s argument that the military is simply bringing the military code in line with the Supreme Court’s Lawrence v. Texas decision is spurious at best.

Sprigg said the Supreme Court’s decision in Lawrence -- a case decided eight years ago in 2003 – did not apply to the U.S. military, and the top military court has said so.

“The theory that Article 125 was effectively nullified by the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which struck down civilian sodomy laws, is simply false,” Sprigg said.

The issue was raised, he said, after Lawrence was decided, in a case in the U.S. Court of Appeals for the Armed Forces, U.S. v. Marcum, which was decided August 23, 2004.

“In this case, an airman was charged under Article 125. The defense argued that Lawrence had nullified Article 125, while the prosecution argued that Lawrence did not apply to the military.

“The court came down somewhat in the middle, saying that it was necessary to analyze whether the ‘liberty interest recognized in Lawrence’ applied to the particular facts of this case.

“Even though the sexual conduct took place off base, in a private residence, and was consensual, the court ruled it was not protected because the two individuals were of differing rank in the same chain of command. Sgt. Marcum's conviction under Article 125 (for NON-forcible sodomy) was allowed to stand.”

Sprigg said they say the Uniform Code of Military Justice was created precisely because the Constitution specifically exempts the military from the protections afforded to private citizens. Military personnel, for instance, are legally subject to their commanders – and are required to comply with unit order and military discipline, which civilians are not required to do.