Joseph G. Hatheway, Jr. v. Secretary of the Army

I.

Lieutenant Hatheway was convicted of sodomy by a general court-martial. Article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (1976) makes it a crime for a serviceperson to engage “in unnatural carnal copulation with another person of the same or opposite sex.”

Prior to trial, Hatheway offered to prove that the convening authority prosecuted only cases involving homosexual sodomy, and would prosecute none involving heterosexual sodomy, even though he was aware of such cases. The Military Judge ruled that, even if Hatheway could establish those facts, his prosecution would be permissible.

At trial, the evidence indicated Hatheway spent several hours drinking with Private Lynde, an enlisted man in his unit. They were in Lynde’s room, and Lynde’s roommates came and went during that time. Hatheway and Lynde then engaged in several acts of sodomy. Lynde’s roommate entered the room and found them undressed.

Lynde testified under a grant of immunity from sodomy or perjury prosecution. His testimony conflicted with sworn statements he had made at a preliminary investigation. He had stated that Hatheway engaged in sodomitic acts, but that he did hot. His roommate also…