Naughty Soldiers

What does the military consider “immoral behavior”?

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Gen. Peter Pace

Gen. Peter Pace, chairman of the Joint Chiefs of Staff, compared homosexuality to adultery in an interview with the Chicago Tribune on Monday. “We prosecute that kind of immoral behavior,” he said. What other kinds of immoral behavior does the military prosecute?

You name it. Bigamy, sodomy (with either gender), wrongful cohabitation, gambling, dueling, indecent exposure, indecent language, indecent acts, pandering, prostitution—all of these are considered crimes under the Uniform Code of Military Justice. If you’re an officer, you’re also subject to a general prohibition on “conduct unbecoming an officer and a gentleman.” This rule, as interpreted in the military’s 900-page courts-martial manual, can be used to prosecute things like cheating on tests, stealing, public drunkenness, failing to support your family, and reading someone else’s mail. To top it off, the military can also prosecute anyone for anything that damages the “good order and discipline in the armed forces” or makes them look bad.

The government almost never prosecutes these moral failings unless they’re attached to a more significant crime. According to military law, when someone gets court-martialed, the prosecutors must go after all known offenses. That means a murderer might also get prosecuted for, say, mouthing off to a superior. In some cases, however, the primary and secondary offenses are connected. In 1997, the Air Force dismissed Lt. Kelly Flinn for refusing to cut off a relationship with the husband of a subordinate. The primary offense was disobeying orders, but she was also charged with adultery. *

What about homosexuality—would the government prosecute someone for being gay, as Pace seemed to suggest? No. It’s not illegal under military law to be gay per se. But “homosexual acts,” for instance, sodomy, are illegal. That said, under the 1993 civil law known as “Don’t Ask, Don’t Tell,” the military can dismiss personnel for admitting to homosexuality, committing homosexual acts, or attempting to marry someone of the same gender.

Bonus Explainer: If actions like adultery and sodomy are legal for regular civilians, why are they illegal in the military? Because the military is special. The 1974 decision Parker v. Levy established the military as a “specialized society” with different laws from civilian society—a notion even the founding fathers recognized when, in the Fifth Amendment, they  exempted “the land or naval forces” from having to call a grand jury to indict people for capital or “otherwise infamous” crimes. *

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Explainer thanks Eugene Fidell of Feldesman Tucker Leifer Fidell LLP, Elizabeth L. Hillman of Rutgers University, and Scott Silliman of Duke University.

* Corrections, March 18, 2007: This article originally stated the Lt. Kelly Flinn was dismissed for having a relationship with a subordinate. It also mistakenly stated that the Fifth Amendment guarantees trial by jury. Click here to return to the corrected sentence.