I get email all the time (usually from wives) asking what constitutes the crime of "adultery" in today's military? Usually the wife is upset because she perceives that the military did nothing about a way-ward husband's wicked ways, or are angry because the military did not punish him for cheating on her.
So, is adultery still an offense under the military justice system? Yes .... and no. It actually depends upon the circumstances.
You may be surprised to learn that adultery is not listed as an offense in the Uniform Code of Military Justice (UCMJ). The UCMJ is a federal law, enacted by Congress, to govern legal discipline and court martials for members of the armed forces. Articles 77 through 134 of the UCMJ encompasses the "punitive offenses" (these are crimes one can be prosecuted for). None of those articles specifically mentions adultery.
Adultery in the military is actually prosecuted under Article 134, which is also known as the "General Article." Article 134 simply prohibits conduct which is of a nature to bring discredit upon the armed forces, or conduct which is prejudicial to good order and discipline.
The UCMJ allows the President of the United States to administer the UCMJ by writing an Executive Order, known as the Manual for Court Martial (MCM). The MCM includes the UCMJ, and also supplements the UCMJ by establishing "Elements of Proof," (exactly what the government must *prove* to prosecute an offense), an explanation of offenses, and maximum permissible punishments for each offense (among other things). While the MCM is an Executive Order, enacted by the President, in reality much of the contents are a result of military and federal appeals court decisions.
One of the things that the MCM does is to expand article 134 into various "sub-articles." One of these "sub-articles" covers the offense of adultery (Article 134, paragraph 62).
Adultery, as a military offense, is difficult to prosecute (legally) for several reasons.
There are three "Elements of Proof" for the offense of Adultery in the Military:
- (1) That the accused wrongfully had sexual intercourse with a certain person;
- (2) That, at the time, the accused or the other person was married to someone else; and
- (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Element #1 can be very hard to prove. Remember, a court martial (like civilian court) requires *proof* beyond a reasonable doubt. Proof of sexual intercourse normally requires photographs, a confession of one of the parties involved, an eye-witness, or other legally admissible proof. (The mere fact that someone stayed over at another individuals house, or even slept with them in the same bed is not proof of sexual intercourse.
Element #3, in many cases, can be the most difficult item to prove. The government must show that the individual's conduct had some direct negative impact on the military. This normally would include cases of fraternization (officer & enlisted) or a relationship with another military member, or a military spouse.
Some of you may remember the famous Lt. Kelly Flynn case of a few years back. Lt. Kelly Flynn was the Air Force's first female B-52 pilot. Unfortunately, Lt Flynn was an unmarried officer who was having an affair with a married civilian. Lt Flynn was advised by a First Sergeant, and later ordered by her Commander, to terminate the affair. She broke up with her "boyfriend," but later they got back together, and -- when asked about it -- Lt Flynn lied. Lt. Flynn was then charged with the offenses of adultery, giving a false official statement, conduct unbecoming an officer, and disobeying an order of a superior commissioned officer.
So, where was the "military connection" for the adultery charge? Well, the civilian "boyfriend," was the husband of an active duty enlisted Air Force member, stationed at the same base as Lt Flynn. Therefore, Lt Flynn's "affair" had a direct negative impact on the morale of that military service member (the enlisted wife is the one who originally complained about the inappropriate actions of Lt. Flynn).
Lt Flynn didn't face a military court, however; she was allowed to resign her commission in lieu of court martial (lots of media attention probably had something to do with this decision by the Air Force).
In 1998, the Clinton Administration authored a change to the Manual for Courts-Martial, which provided that cases of adultery be handled at the lowest appropriate level, and provided specific guidance for commanders to use in order to determine whether or not the member's conduct was "prejudicial to good order and discipline," or "of a nature to bring discredit upon the armed forces." While the President does have the authority to issue changes to the MCM, this proposal resulted in screams and yells from Congress, and was subsequently dropped.
However, in a very quiet move, in 2002, President Bush adopted many of the changes that were proposed by President Clinton. In addition to the Elements of Proof," the "Explanation" section under this offense now requires commanders to consider several factors when determining whether or not the offense of "adultery" constitutes a crime.