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Article Excerpt
I. INTRODUCTION
This article is about the prosecutions of certain sex crimes in the armed forces, many of which may well not constitute offenses in our civilian society. In the military, a number of offenses arise out of sexual conduct that is noncommercial and consensual between, and even among, consenting adults. There are, of course, the classic common-law crimes of rape and a variety of assaults with the intent to commit some sexual act against the will of the victim. For example, Article 120 of the Uniform Code of Military Justice (UCMJ) (1) proscribes rape and defines it by explaining: "Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct." Article 120 has been amended to define broadly the type of conduct to be punished under this title. (2) This article is not about this classic common-law crime of rape, which is punishable in both military and nonmilitary settings. Rather, it is a discussion of sexual conduct that, while punishable if it occurs within the military, may well constitute lawful conduct in a non-military setting.
Before we begin the discussion, it is important to consider the composition of our modern armed forces. Beginning in 1976, with the first admission of women to the military service academies and the ever-increasing addition of women to the enlisted ranks and grades within the services, both the role and the number of women in the armed forces have increased dramatically. These women are integrated into the armed forces in the very same way that women are integrated in civilian life into educational institutions and the work force, with one notable exception. As the Supreme Court observed in In re Grimley, the military "is the executive arm ... [whose] law is that of obedience." (3) While members of the military community enjoy many of the same rights and bear many of the same burdens that members of the civilian community do, within the military community there is not the same autonomy and freedom of movement that there is in the larger civilian community. (4)
To understand this discussion, one also needs to consider that in large part there are no specific, congressionally-enacted laws prohibiting many of the "sex crimes" that are prosecuted in the military. To find the genesis of these offenses, we need to look at Article 134, UCMJ, which provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, ... shall be punished at the discretion of that court. (5)
To implement this congressionally-enacted prohibition, the President, as Commander-in-Chief of the Armed Forces, has deemed by executive order that a number of acts are punishable under this Article. Of course, many of the crimes prosecuted under Article 134 have nothing to do with sexual misconduct. (6) On the other hand, a laundry list of sexual misconduct may be punished under Article 134, including adultery, (7) pandering and prostitution, (8) and solicitation. (9)
II. FRATERNIZATION
The crime of fraternization, one of the most interesting crimes prosecuted under Article 134, is a good place to start. The crime of fraternization is committed when (1) it is against the customs and traditions of the services for an officer to "fraternize on terms of military equality with one or more certain enlisted member(s) in a certain manner" and (2) "such fraternization violated the customs of the accused's service that officers shall not fraternize with enlisted members." (10)
Fraternization has been punished as a military offense throughout military history. Its prohibition dates back to when the legions of Rome marched through Europe and the Middle East, and it continues in our system today. Traditionally, fraternization involved situations where officers gambled with, borrowed money from, loaned money to, or got publicly intoxicated with an enlisted member of the military. (11)
The substantial increase of women in the armed forces in the early 1980s gave rise to significant new challenges. Major Jonas began his law review article with the following introduction:
The problems of pregnancy, single-parents, and dual service couples were made possible largely by the erosion of the age-old ban on fraternization between the ranks. To be sure, the American military has been moving toward greater and greater egalitarianism for some time, but nothing has done more to cheapen rank and diminish respect for authority than cute little female lieutenants and privates. Military customs and regulations are no match for the forces that draw men and women together in pairs without regard for differences in pay grade. Cupid mocks Mars. Lust and love laugh in the face of martial pomp and the pretensions of power. (12)
The case of United States v. Johanns illustrates the situation described by the passage quoted by Major Jonas. (13) Captain Johanns was stationed at an Air Force base in Minot, North Dakota. (14) At the time of Captain Johanns's offenses, the Officers' Club was being redecorated, which compelled both stationed officers and enlisted non-commissioned officers to share use of the NCO (Non-Commissioned Officers) Club. (15) The U.S. Air Force Court of Military Review (16) described the facts as follows:
The accused availed himself of the opportunity and socialized at the NCO Club. There he met Sgt R. (who was married), SrA P. and SSgt K. He dated each and ultimately had sexual relations with them all. On one occasion, the accused and Sgt R. went on a date downtown, and thereafter returned to her house on base. Sgt R. was intoxicated and therefore remembers nothing other than the next morning the accused was asleep next to her in her bed. All this interaction was completely consensual, private, nondeviate, and sometimes instigated by the women involved. The accused was neither the commander nor supervisor of any of these enlisted members, and their respective relationships were not publicized. In the opinion of the enlisted women, the accused's activities were neither dishonorable nor service discrediting. The charges resulted from the apparently private, voluntary liaisons. (17)
Captain Johanns was convicted by General Court Martial and sentenced to a dismissal from the Air Force. (18) On appeal, he contended that his conduct did not violate the customs of the Air Force because there was no regulation or tradition that prohibited him from having consensual sexual relations with a female member of the Air Force. The Air Force Court of Military Review reversed his conviction, holding:
We specifically find that as a matter of fact and law the custom in the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable. (19)
The Air Force remained haunted by the decision in Johanns. In two subsequent cases, United States v. Appel (20) and United States v. Wales, (21) convictions for fraternization were also reversed. The decisions in these subsequent cases were based on a lack of definitive proof that either officer had violated Air Force custom regarding sexual relations with enlisted non-commissioned officers.
This view of Air Force custom did not last for very long. The Air Force took proactive steps to define more clearly the limits on relationships between an officer and members of the opposite sex and adopted a regulation defining fraternization. (22)
Of course, distaff members of the armed forces are not immune to allegations of fraternization. In one case, a lieutenant was charged and convicted of engaging in sexual relations during duty hours with a subordinate under her command. (23) However, her conviction was later reversed on other grounds. (24)
Another example of female staff being subject to fraternization laws is United States v. Arthen. Major Arthen was convicted of conduct unbecoming of an officer after engaging in a sexual affair with an enlisted member of the Air Force. (25) She pled guilty and was subsequently sentenced to dismissal. (26) In order to demonstrate the extent of fraternization occurring in the Air Force at the time of her conviction, the court hearing her appeal stated:
Some of appellant's activities with H[] occurred in the presence of other military personnel assigned to the hospital; each of these individuals was also involved in officer-enlisted romantic relationships. Appellant and H[] spent several nights together and engaged in sexual intercourse at the home of Captain and Staff Sergeant (SSgt) J[], an officer-enlisted married couple. Major W[] C[] and Staff Sergeant T[] D[] were other witnesses to some of appellant's activities with H[]. C[] and D[] were also lovers and C[] was subsequently tried by court-martial for his fraternization with D[]. D[] was H[]'s immediate supervisor (27)
Her dismissal was ultimately commuted to a fine on appeal. (28)
After the Boyett decision, the legal skirmishes regarding fraternization subsided and the battle lines were more clearly drawn. As part of my opinion in Boyett, I commented on the state of law regarding this issue:
In my view, the only thing left to debate in a given case is whether the particular conduct is prejudicial to good order and discipline and, thus, constitutes fraternization or conduct unbecoming an officer by fraternizing. I take it that even the most ardent advocates concede that sexual intercourse by a superior officer with a subordinate service member takes it over the line of "equality," the sine qua non of fraternization (or "sororitization" as the case may be). (29)
This simplistic view, however, is not enough to address the myriad of situations that can easily present themselves. Suffice it to say that the issue of fraternization is a vexing one within the armed forces. There can be little room to dispute the conclusion that sexual relationships between...
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