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Making a sex tape is a crime under the Uniform Code of Military Justice, the military’s highest court has ruled.
While it is perfectly legal for civilians to make videos of themselves having sex, service members are prohibited from doing so because it is “both prejudicial to good order and discipline and service discrediting.”
The Court of Appeals for the Armed Forces ruled that making a sex tape — even if it is never distributed and nobody sees it — amounts to having sex in public, according to a decision issued on May 23.
The case stems from the conviction of Staff Sgt. Ivan Goings, an Army medic. A search of his off-post home in Heidelberg, Germany, turned up a video made in 2006 showing him and another man taking turns having consensual sex with an unidentified German woman.
Goings claimed that the 2008 conviction violated his constitutional rights to private sexual activity.
Goings’s case marked the first time the military’s top court has looked at questions about punishing sexual activity as prejudicial to good order and discipline under Article 134, known as the General Article. It is likely to influence how commanders handle similar cases in the future.
The court found that making a sex tape is an “indecent act” because it involves “open and notorious” sexual acts. The court defined “open and notorious” as allowing a third person to be present and watch.
“We do not doubt that permitting the filming of those same acts is also sufficient” to violate Article 134, Judge Margaret Ryan wrote for the court’s majority.
In addition to the sex tape, Goings also was convicted in a separate incident involving the rape of a German woman who was knocked out with a so-called date-rape drug.
The videotape at issue in the appeal was discovered during a search of his apartment. He was sentenced in 2008 to five years in prison, a dishonorable discharge and reduction in grade to E-1.
One military judge disagreed with the court’s majority opinion and agreed with Goings that troops have a constitutional right to have sex in front of other people and make videotapes for their own personal use.
“The video at issue depicts private consensual sexual activity between adults,” wrote Judge Scott Stucky in a dissenting opinion.
Stucky pointed to the 2003 Supreme Court case that struck down a Texas state law criminalizing sodomy and vastly expanded the rights of adults to engage in consensual activity in private.
“There is nothing in the record to indicate that the [Goings] video was intended to be anything but for private use,” Stucky wrote. “There is no law indicating that recording sexual acts is a punishable offense under Article 134.”