The Volokh Conspiracy - Consensual Homosexual Conduct, in Certain Circumstances, as "Conduct Unbecoming an Officer and a Gentleman":

An interesting decision of the U.S. Air Force Court of Criminal Appeals (U.S. v. Harvey), handed down two months ago but just now appearing on Westlaw:

In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges to Article 125, UCMJ, 10 U.S.C. § 925, based on [Lawrence v. Texas], must be addressed on an as applied, case-by-case basis. Marcum identified a three-part test for addressing Lawrence challenges within the military context. Under the three-part test, courts ask: (1) was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court in Lawrence; (2) did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and (3) are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest? ...

[The court answered questions 1 and 2 by concluding that the private, consensual conduct here was within the Lawrence sexual autonomy right.-EV] [As to question 3, t]he appellant's case did not involve a situation whereby the appellant was in a superior-subordinate relationship with his paramour. His case also does not involve the violation of the law, military instructions, regulations, or policies as a precursor to his conduct. Lastly, the appellant's conduct did not involve a situation wherein the appellant was involved in a sexual relationship with the married spouse of another military member. In short, there are no additional factors relevant solely in the military environment that affect the nature and reach of the appellant's Lawrence liberty interest....

[W]e must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman. Axiomatically, a "higher code termed honor" holds military officers to stricter accountability than their enlisted and civilian counterparts.

The command structure and the necessity for good order and discipline prohibit officers from acting in ways that "bring dishonor or disrepute upon the military profession which [they represent]." The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal.... All that is required is for the offender's conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. Moreover, military law is replete with examples of conduct protected by the Constitution when engaged in by civilians but which becomes criminal when engaged in by military members.... [T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ....

In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), [Footnote: These rumors abounded throughout the Incirlik Air Base and local Turkish communities and caused at least one Turkish national, Mr. MH, enough consternation that he reported the appellant's conduct to base authorities and took actions into his own hands by secretly videotaping the appellant's act of fellatio] evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

The court affirmed the conviction, which ultimately yielded only a reprimand.

UPDATE: CAAFlog has more on this; thanks to commenter Cloudesley Shovell for the pointer. Thanks also to several commenters who pointed out that my initial reading of the case -- that the defendant was dismissed as well as being reprimanded -- was mistaken; the convening authority apparently reduced that initial sentence to a reprimand alone.

	[Eugene Volokh, June 3, 2009 at 7:01pm] Trackbacks Consensual Homosexual Conduct, in Certain Circumstances, as "Conduct Unbecoming an Officer and a Gentleman": An interesting decision of the U.S. Air Force Court of Criminal Appeals (U.S. v. Harvey), handed down two months ago but just now appearing on Westlaw: In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges to Article 125, UCMJ, 10 U.S.C. § 925, based on [Lawrence v. Texas], must be addressed on an as applied, case-by-case basis. Marcum identified a three-part test for addressing Lawrence challenges within the military context. Under the three-part test, courts ask: (1) was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court in Lawrence; (2) did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and (3) are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest? ... [The court answered questions 1 and 2 by concluding that the private, consensual conduct here was within the Lawrence sexual autonomy right.-EV] [As to question 3, t]he appellant's case did not involve a situation whereby the appellant was in a superior-subordinate relationship with his paramour. His case also does not involve the violation of the law, military instructions, regulations, or policies as a precursor to his conduct. Lastly, the appellant's conduct did not involve a situation wherein the appellant was involved in a sexual relationship with the married spouse of another military member. In short, there are no additional factors relevant solely in the military environment that affect the nature and reach of the appellant's Lawrence liberty interest.... [W]e must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman. Axiomatically, a "higher code termed honor" holds military officers to stricter accountability than their enlisted and civilian counterparts. The command structure and the necessity for good order and discipline prohibit officers from acting in ways that "bring dishonor or disrepute upon the military profession which [they represent]." The elements of the offense of conduct unbecoming an officer and a gentleman are: (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal.... All that is required is for the offender's conduct to fall below the level of conduct expected of officers and to seriously expose him to public opprobrium. Moreover, military law is replete with examples of conduct protected by the Constitution when engaged in by civilians but which becomes criminal when engaged in by military members.... [T]he fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ.... In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), [Footnote: These rumors abounded throughout the Incirlik Air Base and local Turkish communities and caused at least one Turkish national, Mr. MH, enough consternation that he reported the appellant's conduct to base authorities and took actions into his own hands by secretly videotaping the appellant's act of fellatio] evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional. The court affirmed the conviction, which ultimately yielded only a reprimand. UPDATE: CAAFlog has more on this; thanks to commenter Cloudesley Shovell for the pointer. Thanks also to several commenters who pointed out that my initial reading of the case -- that the defendant was dismissed as well as being reprimanded -- was mistaken; the convening authority apparently reduced that initial sentence to a reprimand alone.