Adultery allegations in the military, without any other misconduct, are normally dealt with at non-judicial punishment (NJP, Captain’s Mast, Office Hours, Article 15).  Many members of the military believe that consensual sexual intercourse with or by a married person with another not his or her spouse is enough for the military to pursue the archaic charge of Adultery under Article 134, UCMJ.  This misunderstanding leads to many Sailors, Marines, Soldiers, and Airmen unjustly pleading guilty or being found guilty at NJP of adultery.  Adultery, however, requires much more than sexual intercourse and can be very difficult to prove.

ADULTERY UNDER ARTICLE 134, UCMJ REQUIRES EVIDENCE THAT THE ACT BE PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING.

 

The President has provided additional guidance on what may constitute “conduct prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces” in cases of adultery:

 

To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem. While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline

 

I am still seeing the Marine Corps charge adultery frequently in sexual assault courts-martial involving members of the same unit when either the accused or victim is married.  The school of thought is that “either it was rape, or if it was consensual it was adultery.”  This can be troublesome for a prosecutor since adultery is commonly interpreted to be consensual (although consent is not an element of the offense).  A sharp defense counsel will attack the charging, providing that the prosecutor doesn’t believe in the government’s case for sexual assault, so neither should the members.

 

Attorney Patrick Korody is a former Navy JAG who represents servicemembers facing court-martial and other disciplinary actions worldwide.  He was certified by the Judge Advocate General of the Navy as a Specialist in Military Justice.  He offers a free case evaluation.  Call 904-383-7261.