Fixing "Don't Ask, Don't Tell"

By John O'Keefe-Odom

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Political Commentary

As a veteran of the US Army, in light of the recent Presidential attention to the "Don't Ask, Don't Tell" policy regarding homosexuality in the US military, I would like to offer these points for consideration:

With the President's statement in the State of the Union address that it's time to repeal "Don't Ask, Don't Tell," the military will be motivated to make some changes to their laws. Hopefully, those changes will modify the Uniform Code of Military Justice's punitive articles to set policy square with the law.

In the past, and today, we're burdened with Presidential directives on the matter of homosexuals in the military which are perceived to be at odds with the letter of the UCMJ. If it were to be modified, and if I were to advise anyone interested in modifying it, I would ask that these three points be kept in mind:

1. Create A Comprehensive Sexual Battery Law. A quick look at the UCMJ's few pages on Sodomy and Rape shows that the current law is not only out of step with contemporary sexual standards, but also unfair across genders.

No one should be the victim of sexual battery. An over-arching article, preventing and punishing sexual battery should be created. Regardless of the mechanics of how a sexual assault is carried out, sexual battery is not only a physical crime but a psychological manipulation of the victim. It's more than ordinary battery. It deserves its own over-arching legal control regardless of the sexuality or genders of those involved.

2. Applicability. Specifically, the law should be focused on sexual conduct not only within ranks, but also between those within the military and those not in the military. While the homosexuality policy seems to lead our focus on how Soldiers might have sex with one another, the punitive articles also protect against sexual misconduct in theater. As the existing laws are reviewed, new laws should not be put in place which would rescind that aspect of punitive control.

The Rape and Sodomy punitive articles, as they exist now, not only govern how Soldiers behave amongst themselves, but also how they behave among others. This should continue, in order to prevent and punish sexual crimes on the battlefield.

3. Administrative Timeliness and Fairness. The law should not be retroactive, or in any way overturn a standard which would rescind or negate an a punitive action already underway or completed. Soldiers should be held to the standards which were in place at the time that they engaged in an action they may have been punished for. Just as it would be unfair to retroactively punish someone, so also it would be unfair to grant clemency or reward to someone based on a later change in standards.

Since the examination of the current policy may apply not only to the UCMJ, but also to other regulations and policies, policies which would be affected by a change to the UCMJ should be identified and also adjusted accordingly. That is, there should not be an administrative policy in place which contradicts the UCMJ. So, not only should the UCMJ concerns be addressed, as above, but also policies respecting the entrance to service ("chaptering in"), exit from service ("chaptering out") and standards for fitness while in service (any medical fitness standards not immediately related to healthy consensual sexual conduct).

If those three points were followed as a limiting paradigm, it's more likely that any changes to the policy which would be proposed would be more likely to be fair, free of religious and social bias, and durable.

From Baptist to Buddhist, if we build the policy to be fair and equitable, and free from apparent hypocrisy, the Soldiers will be more effectively led by the law. Contradictory policies only cloud the moral issues the UCMJ should clarify in war.

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