Consensual sodomy between members of the U.S. military no longer would be a criminal act under a proposal sent to Congress by the Pentagon’s legal office and made public on Thursday.

Gays could still be drummed out of the military for openly discussing or acting on their sexual preferences. But the separate criminal rule against consensual sodomy would be changed to bring the military legal code closer to that governing civilians, according to the April 7 memorandum.

Under the current Uniform Code of Military Justice, consensual sodomy by heterosexual or homosexual couples can be punished by up to five years in prison. But, if Congress approves, that would be changed so that only “forcible” sodomy or sodomy with a child could be prosecuted as criminal acts.

Groups that advocate gay rights in the military praised the proposal, which must be approved by Congress.

The office of the Pentagon’s general counsel sent a draft copy of the proposal to leaders of the U.S. Senate and House of Representatives Armed Services Committees.

“The nation’s troops should be protected by the same Constitution they give their lives to defend,” said Human Rights Campaign President Joe Solmonese in a statement.

“Service members should not be expected to automatically check their constitutional rights at the barracks door,” added Sharra Greer, director of law and policy for the Servicemembers Legal Defense Network.

‘UNWARRANTED AND UNCONSTITUTIONAL’

“Consensual sodomy prosecutions are both unwarranted and unconstitutional,” Greer said.

The proposed change was first reported by The New York Times, and a copy of the memorandum was provided to Reuters by a group that has pressed the Pentagon to abandon the military’s “don’t ask, don’t tell” policy on gays in the military.

Under the policy, homosexuals can be dismissed from the armed forces if they commit homosexual acts or openly discuss or reveal their sexual preferences.

The chairman of the military’s Joint Chiefs of Staff last week defended the policy amid a new push by critics in Congress to repeal it. The military says that open homosexual behavior is detrimental to good order and discipline in the ranks.

“I know there is some interest in the subject, as there is almost continuously. In the meantime, we try to implement the ‘don’t ask, don’t tell’ policy the best we can,” Air Force Gen. Richard Myers, the top U.S. military officer, told a meeting of the American Society of Newspaper Editors last week.

Myers said he supported the policy, adopted by Congress in 1993.

“Our job is to make sure we execute and implement that in the way that was intended by the law, and it involves, like a lot of things, continual education,” the general added.

Republican Reps. Ileana Ros-Lehtinen of Florida, Christopher Shays of Connecticut and Jim Kolbe of Arizona have joined about 70 Democrats in co-sponsoring a bill introduced in March in the House of Representatives by Massachusetts Democratic Rep. Martin Meehan to prohibit discrimination against homosexuals in the military.

The bill’s supporters are seeking hearings, but its chances of passage in the Republican-controlled Congress appears to be remote.