Coast Guard Nixes Sodomy Challenge

Military appeals court upholds conviction for seaman’s straight sex aboard a vessel

A unanimous five-judge panel of the U.S. Coast Guard Court of Criminal Appeals has refused to vacate a conviction for consensual sodomy, finding that it must continue to apply the military sodomy law until a higher appeals court can determine that the U.S. Supreme Court’s decision in Lawrence v. Texas requires the military to abandon such prosecutions.

The May 14 decision written by Chief Judge Joseph Baum also suggested that consensual sodomy between heterosexuals on a ship could be treated differently from the kind of conduct addressed in the Lawrence case.

Shams I. Abdul-Rahman, a seaman apprentice in the Coast Guard, was charged with unlawfully entering the women’s berth on his ship, the Coast Guard cutter Rush, and “engaging in sexually explicit behavior with four different females on board.” The charges included “one specification of sodomy with a female third class cadet.” Although the prosecution originally charged non-consensual sodomy, ultimately Abdul-Rahman was allowed to plead guilty to consensual sodomy. He was sentenced to a bad conduct discharge and 180 days in the brig.

In appealing his sentence, Abdul-Rahman argued that under last summer’s Supreme Court’s decision in Lawrence v. Texas, which held that the Constitution does not allow states to make it a crime for same-sex partners to engage in oral or anal sex, the military sodomy law, found in Article 125 of the Uniform Code of Military Justice, could not constitutionally be applied to his consensual sodomy with a woman.

Prior cases rejecting constitutional challenges to the military sodomy law were based on Bowers v. Hardwick, the 1986 Georgia sodomy case that the Supreme Court overruled in Lawrence, and the Coast Guard criminal appeals court took the position that until the highest military appeals court, the U.S. Court of Appeals for the Armed Forces, rules on the impact of Lawrence in the military sphere, the Bowers precedent must be applied.

Baum also wrote that even if Bowers were not the ruling precedent, “We believe there are reasons to find Lawrence v. Texas inapplicable to the facts in this case.” According to the ruling, Abdul-Rahman was not lawfully in the women’s berthing area, an area that is not a particularly private place, unlike the private apartment where the arrests were made in the Lawrence case, and most significantly, “the Coast Guard has a legitimate military interest that would justify its intrusion into any sexual act occurring aboard a Coast Guard cutter.”

Baum also noted that even though the final guilty plea was to consensual sodomy, Abdul-Rahman had been charged with non-consensual acts, casting doubt on whether his conduct should be found to qualify for the kind of treatment accorded under Lawrence.

Other cases are pending in the military trial system raising the constitutionality of Article 125, so this case will not be the last word on the issue, but the federal courts have long granted special deference to the Pentagon’s position that rights and liberties commonly upheld in civilian life do not necessarily deserve protections in the military sphere. It remains uncertain whether Lawrence v. Texas will ultimately be held to have decriminalized all consensual sodomy in the military, especially sodomy involving shipmates in the Coast Guard or the Navy while aboard their vessel.

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