Extramarital sexual conduct, which includes “adultery”, is illegal for members of the armed forces in certain circumstances. To be punishable under the UCMJ, the Government must prove three elements:
Extramarital sexual conduct includes the following acts between persons of the same or opposite sex: genital to genital sexual intercourse; oral to genital sexual intercourse; anal to genital sexual intercourse; and oral to anal sexual intercourse.
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People are often surprised to learn that extramarital sexual conduct is punishable under the UCMJ. Historically, this type of conduct was criminalized to maintain good order and discipline within the military. It’s not difficult to imagine the negative impact adultery could have on mission accomplishment or morale if a commanding officer were sleeping with the wife of an enlisted soldier, undermining his authority and calling into question his decision making, or if deployed servicemembers were under constant fear of servicemembers back home taking advantage of their absence. These, or similar aggravating circumstances, are necessary to sustain a conviction of extramarital sexual conduct. It must be shown that the conduct as issue was service discrediting or prejudicial to good order and discipline.
Article 134 allows the defense of mistake of fact if the accused had an honest and reasonable belief that either he or his paramour were unmarried or legally separated. If the accused can put forward evidence supporting this belief, the burden is on the government to prove otherwise.
The 2019 revisions to the MCM also added a new affirmative defense: legal separation. For this defense to apply, both parties must be either unmarried or legally separated at the time of the conduct. Legal separation can only occur by court order.
A person convicted under Article 134 for extramarital sexual misconduct faces a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
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