HEIDELBERG, Germany—Staff Sgt. Ivan Goings, an Army medic serving in the historic southwest German city, got a bit randy, as service personnel deprived of sexual outlets are sometimes known to become. So one day, he and another man found a willing (but unidentified) woman, whom they brought back to Goings's apartment abnd took turns having sex with her—and they made the mistake of recording the whole event with Goings's 8mm camcorder.
That wouldn't have been a problem, except that one day, German police searched Goings's apartment to investigate claims of sexual assault allegedly committed by the sergeant. Of course, they found the tapes and turned them over to Goings's superiors, who promptly put him on trial under the Universal Code of Military Justice (UCMJ), Article 134, for having "wrongfully commit[ted] an indecent act with another male and a female by allowing the other male to be present and video record on a video cassette tape the said [Staff Sgt.] Ivan D. Goings engaging in sexual intercourse with a female."
Article 134, which is often described as a "catch-all" article, states, "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 taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court." Wow! Hard to get more vague than that!
Now understand, they weren't putting Goings on trial for having had sex with the woman, nor even for having recorded it on videotape; it was the fact that someone else was in the room while all this was going on, and it was because of the presence of that third person who shot Goings having sex with the woman, which the military court found was "prejudicial to good order and discipline" in the ranks, not to mention "discrediting to the service."
Working backwards from that finding, the court determined that it was the presence of the third person that made the videotaping (and fucking) an "indecent act" because it now involved "open and notorious" sexual acts—even though the guy doing the filming was fucking the woman as well, and only those three were witness to the events.
Interestingly, Goings had argued that all of the activity complained of should be protected under the U.S. Supreme Court's ruling in Lawrence v. Texas, which essentially said that what goes on in one's bedroom (or equivalent) was none of the government's business, but Judge Margaret Ryan was having nothing of that. Instead, she applied the official Manual for Courts-Martial definition of "indecent" to the case, which is "defined" in the manual as “that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations.” (Behind the times much?)
But much as Goings argued that that definition shouldn't apply to him, Judge Ryan thought otherwise, stating that, "There is no question that Appellant’s rights as a member of the military are not coextensive with those enjoyed by civilians." (In other words, "Tough luck, chum; you're in the Army now, and we don't cotton to that fancy new sexual morality.")
"No one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence," Judge Ryan admitted. "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.
"In Lawrence, the focal point of the constitutional protection involved an act of sexual intimacy between two individuals in a wholly private setting without more," she continued. "Lawrence did not establish a presumptive constitutional protection for all offenses arising in the context of sexual activity."
It's sort of an "If a tree falls in the woods" kind of argument: If no one but those involved in the sex see the video recording of it, does that still make it "open and notorious"?
Indeed; at least one member of the appeals panel thought the tape was protected speech.
"The video at issue depicts private consensual sexual activity between adults," wrote Judge Scott Stucky in dissent. "There is nothing in the record to indicate that the [Goings] video was intended to be anything but for private use. There is no law indicating that recording sexual acts is a punishable offense under Article 134."
No matter; Goings was sentenced to five years in prison for his offense, dishonorably discharged, and reduced in pay grade to E-1, which we're guessing is pretty low.
(H/t to Howard Bashman for calling our attention to this case.)