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A military law commission is calling for the end of the U.S. armed services’ decades-old sodomy prohibition, finding that the ban invites arbitrary enforcement and may be unconstitutional. In a report released Oct. 20, the Commission on Military Justice — a panel of former judges, law professors and military experts — called the ban on consensual sodomy unnecessary and recommended repealing it. The commission was created in January by the National Institute of Military Justice and the American Bar Association to assess military justice in the United States. It concluded that new military laws — which took effect in 2007 — provide an “adequate basis to prosecute any criminal sexual misconduct.” Moreover, it noted, the U.S. Supreme Court spoke on the issue in 2003, holding in Lawrence v. Texas that the right to privacy protects the right of adults to engage in private, consensual sexual activity. “Given that background and given that Congress has passed new laws, we just felt like [the sodomy ban] should be repealed,” said Walter Cox III, chairman of the commission. He added, “I definitely think it’s outdated.” Cox, of counsel to the Charleston office of Columbia, S.C.-based Nelson Mullins Riley & Scarborough, is all too familiar with the military prohibition. He is a former chief judge of the U.S. Court of Appeals for the Armed Forces, who oversaw several cases in which the ban was cited, most often in rape allegations involving male and female service members. “Some of its applications we do think would be unconstitutional, such as a husband and wife having consensual oral sex, a boyfriend and a girlfriend, or a boyfriend and a boyfriend,” Cox said. He said the commission isn’t “cheering any particular side on….We just want the military justice system to be modern, fair and totally acceptable by the civilian and military community alike.” An earlier military law commission, also chaired by Cox, also recommended repealing the ban back in 2001. Professor Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke Law School, who served on the commission, made similar points. The former Air Force judge advocate noted that consensual sodomy remains a crime in the military because Congress has not changed the law. “All things, as far as I’m concerned, suggest that this is something that Congress ought to look very strongly at,” Silliman said. “This is a subject for congressional hearings. Just like they intend to look at the ‘don’t ask, don’t tell’ policy.” Other commission members included William Wilkins, former chief judge of the 4th U.S. Circuit Court of Appeals; retired Rear Adm. Donald Guter, former judge advocate general of the Navy; and Mary Cheh, a member of the District of Columbia Council and professor at George Washington University Law School.

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