Six years ago, German police searched a U.S. Army staff sergeant’s apartment and discovered video of the solider having sex with a woman while another man “physically participat[ed] in the sexual activity.” Although the sex was consensual, a court-martial convicted the soldier of “committing an indecent act with another.” Last week, the United States Court of Appeals for the Armed Forces affirmed this conviction.
Had the participants in this video been civilians, there is little question that their actions would have been protected by the Constitution under the Supreme Court’s decision in Lawrence v. Texas, which prohibits criminalizing private, non-commercial sexual activity involving consenting adults. The court explained, however, that service members rights under Lawrence are not as broad as the rights of civilians:
No one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence. But that does not answer the altogether different question whether permitting a third party to observe and memorialize one’s sexual activity on videotape is categorically protected as “wholly private and consensual sexual activity” where the trier of fact has deemed the conduct to be prejudicial to good order and discipline in the armed forces and service discrediting. We hold that, under the circumstances of this case, it is not.
This case presents fairly unusual facts — most people do not videotape themselves engaged in threesomes — and the court’s reasoning is closely tied to the unusual facts of the case. Nevertheless, it does provide a warning to Americans in the military that their sexual liberties under the Constitution are less robust than the rights of civilians.
(HT: Howard Bashman)