Connect with us

National

Gay sex remains a crime under military law

‘Don’t Ask, Don’t Tell’ repeal leaves sodomy ban unchanged

Published

on

Aubrey Sarvis, executive director of SLDN, said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal of ‘Don’t Ask, Don’t Tell.’ (Washington Blade file photo by Michael Key)

Much of the nation was riveted over the drama surrounding the congressional vote last month to repeal the “Don’t Ask, Don’t Tell” law barring gays from serving openly in the military.

But in a little-noticed development, Capitol Hill observers say Congress is in no mood to take a follow-up action recommended by Pentagon officials — the repeal of a longstanding military law that classifies consensual sodomy among both gay and straight service members as a crime.

Gay rights attorneys and experts in military law say the sodomy law provision known as Article 125 of the Uniform Code of Military Justice has been rarely enforced in recent years in cases where sexual activity has been consensual and “fraternization” between officers and lower ranking members has not be a factor.

And the experts say a 2004 decision known as U.S. v. Marcum by the U.S. Court of Appeals for the Armed Services placed limits on the enforcement of Article 125 based on a U.S. Supreme Court decision one year earlier that declared state sodomy laws unconstitutional.

Yet because the military court did not overturn Article 125, its characterization of gay sex as criminal acts punishable by court martial will remain on the books until Congress repeals the statute, leaving in place what some activists say is an unfair stigma associated with gays and lesbians in the military.

Gay rights attorneys have said the Supreme Court could overturn the military sodomy law by affirming that the Lawrence v. Texas decision fully covers the military. But it could take years before a new military case reaches the high court.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has led efforts to repeal “Don’t Ask, Don’t Tell,” said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal.

The repeal law passed by Congress and signed by President Obama in December doesn’t allow full repeal to take effect until the president, the Secretary of Defense and chair of the military’s Joint Chiefs of Staff determine troops and commanders are fully prepared for the change.

“So I would say no, that our top priority for this Congress is not the repeal of Article 125,” Sarvis told the Blade. “Do I think it should be repealed? Yes. Has SLDN been working over the last several years for repeal? Yes.”

Among those agreeing with Sarvis’ assessment is gay U.S. Rep. Barney Frank (D-Mass.).

“I’m skeptical and frankly at this point I don’t think it’s a good idea to press ahead with that one,” Frank said Tuesday, noting that gay rights opponents would likely use a debate on sodomy repeal in the military to push “hidden agendas.”

Sarvis summarized the views of other LGBT advocates when he said the Republican-controlled House would almost certainly refuse to even consider a bill to repeal Article 125. He said the need for pushing other LGBT-related issues in the military and other areas outweighs expending resources on Article 125.

Although Article 125 applies to gays and straights alike, gay rights advocates have said military authorities used it to target gay and lesbian service members in the past, especially in the years prior to “Don’t Ask, Don’t Tell.” If it remains on the books, some wonder whether a future president less supportive of LGBT rights might reinstate its full enforcement.

Longtime D.C. gay rights leader Frank Kameny, who assisted gay service members in the 1970s and 1980s, long before SLDN and other LGBT rights groups existed, said military investigators waged what he and other activists called “witch hunts” to identify and discharge gays on grounds that they violated Article 125.

Under Article 125, “any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense,” the article states.

Under the 2008 version of the military’s official manual for courts martial, unnatural carnal copulation under Article 125 is defined as a person taking into his or her “mouth or anus the sexual organ of another person or of an animal…or to have carnal copulation in any opening of the body, except the sexual parts, with another person.”

Sarvis and Aaron Belkin, director of the Palm Center, an arm of the University of Southern California that studies issues related to gays in the military, each said they know of almost no cases in recent times where service members, gay or straight, have been prosecuted under Article 125 for engaging in consensual sex in private.

The two noted that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.

The latter category of cases, known as fraternization, is considered a strong breach of military rules because sexual relations between an officer and a subordinate are believed to harm the system of order and discipline deemed important in the military.

Bridget Wilson, a San Diego attorney in private practice who has represented gay and lesbian service members for more than 20 years, said she agrees with Sarvis and Belkin’s assessment about the infrequency of Article 125 enforcement in recent years for consensual sex.

But Wilson said the pressure that “Don’t Ask, Don’t Tell” has placed on gay and lesbian service members to conceal their sexual orientation during the 17 years it has been in effect has led to many cases where service members “fabricate” a non-consenting allegation to protect themselves from being thrown out of the service.

If a service member ensnared in an investigation over alleged acts of sodomy admitted to having consented to such acts, Wilson said, it was equivalent to an admission to being gay and grounds for an automatic discharge under “Don’t Ask, Don’t Tell.”

“What I do see is false accusations of assaults,” she said in describing some cases faced by her clients. “You get a lot of, ‘I was so drunk last night I don’t remember a thing’ after he gets busted for having sex with another man.”

According to Wilson, some military prosecutors have interpreted impairment on the part of a service member due to alcohol consumption as a sign that the service member could not give true “consent” to a sexual act.

“So the problem with ‘I was so drunk that I don’t remember a thing’ is it could convert from [consensual] sodomy into forced sodomy with very serious consequences in the criminal courts,” she said.

With the repeal of “Don’t Ask, Don’t Tell,” Wilson said she is hopeful that the perceived need by frightened service members to fabricate a non-consenting sex allegation to avoid being discharged from the service will become a thing of the past.

She said military authorities notoriously handled similar cases with straight couples engaging in alleged sodomy differently because there is no “straight” version of “Don’t Ask, Don’t Tell.”

“They might find themselves punished by losing a stripe or losing leave time—that sort of thing,” Wilson said. “For my same-sex clients, before ‘Don’t Ask, Don’t Tell’ goes away, they’re out. They’re gone. And they’re probably facing administrative separation with an other-than-honorable discharge.”

In its widely publicized Nov. 30 report, the Pentagon’s Joint Service’s Committee consisting of top military leaders — which recommended the repeal of ‘Don’t Ask, Don’t Tell’ — also called on Congress to repeal Article 125.

The committee report points to both the U.S. v. Marcum decision, which limits the enforcement of Article 125, and the Lawrence v. Texas ruling that declared state sodomy laws unconstitutional as they pertain to consenting adults in the privacy of the home.

“In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation,” the report says.

“The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be ‘service discrediting’ (i.e., in public or between a superior and subordinate), should remain on the books,” the report says.

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said HRC favors a prompt repeal by Congress of Article 125. He said the group also disagrees with the military court decision upholding Article 125 under some circumstances and feels the Supreme Court’s Lawrence decision, which overturned state sodomy laws, should also cover the military in its entirety.

“HRC expects that post-DADT repeal, Article 125 would only be used in circumstances involving non-consensual acts, so there should be no negative impact on gay and lesbian service members,” Cole-Schwartz said.

Former Army Lt. Dan Choi, who emerged as one of the nation’s most visible opponents of “Don’t Ask, Don’t Tell” after being discharged under the statute, said he recognizes that Congress is unlikely to repeal Article 125 any time soon. But he criticized SLDN and other LGBT groups for not being more aggressive in pushing for its repeal at the present time.

“Leaders [should] do what is important and difficult and lead,” he said.

Bryan Thomas, a spokesperson for Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, said Senate Democratic leaders were reviewing the Pentagon report’s call for Congress to repeal Article 125. He said a Senate repeal measure would most likely be introduced as an amendment to the National Defense Authorization Bill, but he had no further details by press time on whether or when such a measure would be introduced.

“We expect the administration to submit a legislative proposal for repeal or revision of Article 125 of the UCMJ, and such a proposal would certainly be carefully considered by the committee,” Thomas said.

Spokespersons for Republican and Democratic leaders in the House and Republican leaders in the Senate could not be immediately reached.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Oklahoma

Nonbinary Okla. high school student dies after fight

Nex Benedict passed away Feb. 8

Published

on

Nex (Dagny) Benedict, a 16-year-old nonbinary high school student, died from injuries suffered in a physical altercation at Owasso High School on Feb. 7, 2024. (Family photo)

Located in Tulsa County on U.S. Highway 169 six miles north of Tulsa’s city limits, Owasso, which is home to 39,328 people, is grappling with conflict and accusations after Nex Benedict, a 16-year-old Owasso High School sophomore who was nonbinary, died after a physical fight in a restroom at the school.

However, according to school officials there was no notification or staff awareness of the fight until the young student had been taken to hospital and later died. The Owasso Police Department is now investigating the circumstances surrounding the student’s death. 

According to the local newspaper, the Owasso Reporter:

“On Wednesday, Feb. 7, around 3:30 p.m., police were called to Bailey Medical Center by the parent of a 16-year-old Owasso High School student who allegedly had a physical altercation at the campus earlier that day, according to the police report.”

It states that no initial report of the fight was made to police prior to their admission to Bailey, although information was taken by a school resource officer at the hospital.

On the evening of Feb. 8, police were made aware that the student was rushed back to the hospital where they were pronounced dead from a medical episode, the report states.

KJRH in neighboring Tulsa reported that a person knowledgeable of the events leading to the teen’s death, who claimed to be the mother of the victim’s best friend, told the station regarding the teen’s death:

“I think complications from brain trauma, head trauma, is what caused it,” she said.

The woman wouldn’t say the victim’s name but said Benedict was a sophomore. Bailey said the victim was outgoing and loyal once they got comfortable and was not afraid to be outspoken. The woman said three older girls were beating on the victim and her daughter in the girl’s bathroom.

“I know at one point, one of the girls was pretty much repeatedly beating [Benedict] head across the floor,” she said. That’s when [Benedict said] a teacher walked in and broke it up.

“[Benedict] couldn’t walk to the nurses’ station on [Benedict] own, and staff didn’t call the ambulance, which amazes me,” she said.

The woman told KJRH the victim’s grandmother, who [Benedict] primarily lived with, brought [Benedict] to the hospital after the fight. She said the victim was released that evening but was brought back the next day and died.

KJRH reached out multiple times along with other media outlets to Owasso Public Schools. A school district spokesperson responded saying there would be no comment “because this is an active police investigation.”

The Owasso Police Department also declined to comment except for noting investigators still don’t know if the fight was related to the teen’s death or if a separate medical issue was the cause. OPD said they’re waiting on the corner-medical examiner’s report before releasing more information.

Owasso Public Schools released this statement about the student’s death:

“The Owasso Police Department has notified district leaders of the death of an Owasso High School student. The student’s name and cause of death have not yet been made public. As this is an active police investigation, we will have no additional comment at this time. Further inquiries should be directed to the Owasso Police Department.”

“The district will have additional counselors at the school to provide support to students and staff beginning on Friday.”

On Feb. 15, after a service was held at Mowery Funeral Service Chapel, Benedict was buried at Ridgelawn Cemetery in Collinsville.

LGBTQ advocates and others are angered by the death, the misgendering in local media and the fact that the school district, which has been previously targeted by the far-right anti-LGBTQ extremist Libs of TikTok’s creator Chaya Raichik, seems unable to grapple with anti-LGBTQ bullying.

Raichik was named to sit on an Oklahoma committee reviewing school library content by far-right leaning State Superintendent of Schools Ryan Walters.

In 2022, Raichik targeted a now former Owasso 8th grade teacher for speaking out in support of LGBTQ students who lacked acceptance from their parents. That teacher, Tyler Wrynn, was labeled a “groomer” and a predator in social media posts.

According to LGBTQ advocacy groups, Raichik’s endless targeting only seems to encourage more violence against LGBTQ youth. 

Lance Preston, the CEO of the Indianapolis-based Rainbow Youth Project, which has been working to assist queer youth in the state, posted a video expressing his frustration and anger over this death and the other anti-LGBTQ violence.

Continue Reading

State Department

Ned Price named UN ambassador’s deputy

Former State Department spokesperson is gay

Published

on

Former State Department spokesperson Ned Price, center, speaks at the LGBTQ Victory Institute's International LGBTQ Leaders Conference in D.C. on Dec. 3, 2022. (Washington Blade photo by Michael K. Lavers)

U.S. Ambassador to the U.N. Linda Thomas-Greenfield has announced former State Department spokesperson Ned Price will manage her D.C. office.

Thomas-Greenfield in a statement to Politico on Feb. 16 said Price’s “judgment and expertise will be a tremendous asset to me and the entire USUN team.” Price, who is gay, in a post to his personal X account acknowledged his appointment.

“I am grateful to (U.S. Ambassador to the U.N. Linda Thomas-Greenfield), (Secretary of State Antony Blinken) and my colleagues across the administration for the opportunity to help promote America’s interests and values in the U.N. and broader multilateral system together with our allies and partners,” wrote Price.

Price on Jan. 20, 2021, became the first openly gay State Department spokesperson. He stepped down in March 2023 in order to become a senior advisor to Blinken.

Price was previously a senior communications official for the National Security Council and worked at the Central Intelligence Agency.

Continue Reading

Texas

Houston police: Lakewood Church shooter was not transgender

Far-right extremists fueled unsubstantiated, false narratives

Published

on

Houston Police Department homicide commander Christopher Hassig briefing reporters on Feb. 12, 2024. (KHOU YouTube screenshot)

In the hours after Genesee Moreno, a 36-years-old Latina woman, entered the sanctuary of Joel Osteen’s mega Lakewood Church and opened fire with an assault rifle this past Sunday, there were multiple instances of confusion over her gender identity, in part fueled by unsubstantiated or false narratives from far-right extremists.

During a briefing with reporters yesterday, Houston Police Department homicide commander Christopher Hassig stated with absolute clarity that Moreno was not a transgender person.

“Our shooter is identified by a driver’s license as Genesee Moreno, 36-years-old, Hispanic female. There are some discrepancies. We do have reports she used multiple aliases, including Jeffrey Escalante. So she has utilized both male and female names but through all of our investigation to this point, talking with individuals, interviews, documents, Houston Police Department reports, she has identified this entire time as female,” Hassig told the media.

KHOU Jeremy Rogalski’s initial reporting as posted to X.

In initial coverage, KHOU and the Houston Chronicle reported Moreno, who had used the name Jeffery Escalante, had an extensive criminal history dating back to 2005 according to a Texas Department of Public Safety records search. Prior arrests include failure to stop and give information, assault of a public servant, assault causing bodily injury, forgery, possession of marijuana, theft, evading arrest and unlawful carrying weapon.

Media outlets including Fox News and even NBC News who later retracted a portion of their story mistakenly framed the context as “a person who previously identified as male” which led to the incorrect framing of Moreno’s gender identity.

Far-right extremist pundits and at least one anti-trans member of the U.S. House of Representatives took up the “shooter was trans” narrative.

Screenshot of Libs of TikTok far-right extremist creator Chaya Raichik’s post on the Houston shooter.

Chaya Raichik’s post had a companion extremist anti-trans X post by U. S. Rep. Marjorie Taylor Greene (R-Ga.), who republished a post by far-right media Blaze TV anchor Sara Gonzales, both falsely claiming Moreno was trans. Gonzales’ post appeared to contain a criminal record without attribution of its source.

Raichik also posted the same “criminal record” on her social media accounts.

Fox News also ran misleading and false headlines regarding Moreno’s gender identity.

Alejandra Caraballo, a trans attorney and clinical instructor at the prestigious Harvard Law Cyberlaw Clinic who also writes on gender and technology issues for Wired and Slate magazines, debunked the Fox News allegations and called out the far-right anti-trans extremists.

“Far right extremist accounts like Libs of Tiktok rushed to call the shooter at Joel Osteen’s church a transgender woman. The police have just confirmed that is not the case and she was the biological mother of the child who was shot. They won’t apologize or retract their lies,” Caraballo said.

Ari Drennen, executive director of Media Matters of America’s LGBTQ Project, cautioned Tuesday the falsehoods and fabrications are “adding fuel to a moral panic” on trans issues as multiple state legislators rush to pass anti-trans laws:

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular