People are often surprised to learn that adultery is a crime in the military. While this military-specific offense might seem harmless enough to civilians, the military takes adultery very seriously. Service members convicted of adultery can receive a federal criminal conviction, confinement, and a punitive discharge from the military.
MJA has defended countless service members facing investigation, court-martial, and discipline for extramarital sexual conduct, including adultery. Contact one of our military defense lawyers today to learn more.
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Historically, the act of adultery 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 one of the wives of his soldiers, or if a deployed service member on patrol was distracted with the fear that his wife would constantly be hit on by service members back home.
In 2019, the specific crime of “Adultery” was replaced with the more general offense of “Extramarital sexual conduct” under Article 134, UCMJ. The new offense, which incorporates the elements of “adultery”, is designed to prevent and criminalize sexual conduct which negatively impacts the military. So what sexual conduct is actually illegal? What are the possible punishments? And what defenses exist to the crime of adultery? Find out these answers, and more, below.
Article 134, UCMJ (Extramarital Sexual Conduct)
Article 134 makes it is illegal for members of the armed forces to engage in extramarital sexual conduct 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.
Terminal Element Required
For consensual sexual conduct to be punishable under Article 134, UCMJ, the government must prove what’s called the “terminal element.” The terminal element is necessary for all Article 134 offenses. It requires the government prove that the conduct at issue was either: (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces.
To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline. While every improper act by a service member could be viewed as prejudicial in some indirect or remote sense, that is not enough to make the conduct criminal under Article 134. Rather, the prejudice to good order and discipline must be “reasonably direct and palpable.”
Alternatively, extramarital sexual conduct may be punishable if it’s of a nature to bring discredit upon the armed forces. “Discredit” means to injure the reputation of. This includes any “conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.”
Article 134 allows the defense of mistake of fact if the service member had an honest and reasonable belief that either he or his paramour were unmarried or legally separated. If the service member 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.
Know Your Rights
The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are three fundamental rights you can, and should, invoke:
Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.
Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.
Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.
Protect Your Freedom and Future in the Military
The skilled and aggressive attorneys at Military Justice Attorneys know how to defend against allegations of extramarital sexual conduct and will zealously fight for you, regardless of where you’re stationed.
MJA has successfully defended service members facing investigation, court-martial, and discipline for some of the most aggravating cases of extramarital sexual conduct. Call us today at (843) 473-3665 for a free consultation.