Navy Sonar Technician Second Class Benjamin H. Hartman served his country aboard fast-attack submarines, dangerous and invaluable work. But then he had sex with another male sailor, for which he received a bad conduct discharge.
Here's the question: Was Hartman's constitutionally protected privacy interest violated by his being punished for engaging in a private sex act? And here's the twist: It wasn't really private, because there was another sailor, a third man, in the room at the time Hartman engaged in anal intercourse.
And here's the twist to the twist: that third sailor was asleep.
In a Dec. 29 ruling, the U.S. Navy-Marine Corps Court of Criminal Appeals had to wrestle with this peculiar case. Represented by Marine Maj. Kirk Sripinyo, Hartman argued that his sex act was protected by the Supreme Court's reasoning in Lawrence v. Texas. This is what happened:
"(Hartman) awoke to find another male Sailor fondling his penis. The appellant eventually assisted the other Sailor in penetrating the appellant’s anus. This activity all occurred while a third occupant of the room, a petty officer also attached to the submarine, slept in one of the two beds in the room."
The appeals panel agreed that the sex act, per se, was potentially protected as a private affair. But wait, the judges further reasoned: all this was "in the presence of a third, albeit apparently unconscious, Sailor. This fact places it more in the 'public' than 'private' context." Thus, the judges reasoned, the otherwise intimate act was transformed into something "open and notorious," and hence punishable.