C. v Convening Authority

Judgment Date01 January 1998
Date01 January 1998
Docket Number[No. 3 C.M. of 1994]
CourtCourts-Martial Appeal Court
In re C

- Personal rights - Privacy - Defence forces -Whether prohibiting sexual activity in home between members of differing rank an unconstitutional invasion of right of privacy.

Section 168(1) of the Defence Act, 1954, states:- "Every person subject to military law who commits any act, conduct, disorder or neglect to the prejudice of good order and discipline is guilty of an offence against military law …" Sub-section 3 of the same section reads:- "(a) the contravention (by act or omission) by any person of - (i) any of the provisions of this Act, or (ii) any regulations, orders or instructions published for the general information and guidance of that portion of the Defence Forces to which that person belongs to or to which he is attached, or (iii) any general, garrison, unit, station, standing or local orders, is an act, conduct, disorder or neglect to the prejudice of good order and discipline;…" The appellant, a member of the Defence Forces, was charged before a court-martial with, inter alia, an offence contrary to s. 168(1) of the Defence Act, 1954. The behaviour complained of was that the appellant had engaged in homosexual conduct with a bandsman soldier to whom he was greatly superior in age, rank and length of service. The conduct occurred in the appellant's bedroom while they were both off-duty. Afterwards the bandsman confessed what had happened to his superiors. He later applied for a discharge from the army, which was granted. The appellant was convicted by a court-martial of the charge. The appellant appealed to the Courts-Martial Appeal Court. It was submitted on behalf of the appellant that there was no evidence before the court-martial that the necessary mens rea existed in the mind of the appellant and that acts done by the appellant in his home with a consenting adult while both were off-duty, were beyond the reach of military law and protected by a constitutional right to privacy. Held by the Courts-Martial Appeal Court (O'Flaherty, O'Hanlon and Geoghegan JJ.), in dismissing the appeal, 1, that an army code which prohibited consensual casual sexual activity between a company...

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