Yesterday we posted a citation to Christopher Scott Maravilla’s article, The Other Don’t Ask, Don’t Tell:  Adultery under the Uniform Code of Military Justice after Lawrence v. Texas, 37 Cap. U.L. Rev. 659 (2009).

Today a friend o’ CAAFlog sent us this SSRN link through which you can download what appears to be an earlier (and far shorter) version of the article.

11 Responses to “Military justice scholarship continued”

  1. Southern Defense Counsel says:

    I found the article to be a bit disjointed and difficult to follow. Perhaps the long form is easier to read. In my experience I have never seen adultery qua adultery charged. It’s always an add-on or based on some other aggravating facror..

    I don’t see adultery as always unconstitutional. Take for instance the officer having sex with his subordinate’s spouse. I absolutely believe that this is an instance of conduct prejudicial to good order and discipline, and should be charged.

  2. Any mouse says:

    To build on comments of SDC, what are the thoughts in the blogosphere on changing the crime of adultery so that it is only an offense if the accused engages in sexual intercourse with the spouse of another service member? This would limit the sphere of criminality for adult consensual sexual activity to only those cases most likely to be offensive to good order and discipline.

  3. thought says:

    So he’s arguing that Lawrence makes the UCMJ offense of adultery facially unconstitutional. That argument was rejected in Marcum in favor of as-applied challenges. Big deal.

  4. John O'Connor says:

    Any Mouse:

    I would be against a bright-line rule that adultery with those other than another servicemember’s spouse is legal. I can think of other circumstances where there could be a negative effect on good order and discipline, though the most common examples are situations involving servicemembers’ spouses. I just don’t favor taking away a court-martial as a discipline tool for breaches of good order and discipline.

  5. Late Bloomer says:

    thought:

    If that is the case, then I would be interested to see how the author reconciles his position with US v. Crotchett, in which NMCCA rejected a facial constitutional challenge because there was at least one way the statute could be read constitutionally, therefore passing muster.

  6. Any mouse says:

    J O’C, my concern is the use of 134 adultery charges for what, while distatesful, is still consensual adult activity. More than other UCMJ offfense, it seems to lead to anomalous results were some commands pay it no mind, but other commands see every case, no matter how tenous the link to military service, as criminal moral turpitude. Limiting it to the spouse of another SM could help restrict disparate results and focus the charge on cases that impact the unit, not just offend the conscience.

  7. Southern Defense Counsel says:

    J O’C,

    Isn’t that what the general article is for? I wonder if we could do away with adultery as a named offense, and just charge things under the General Article more frequently.

  8. Anonymous says:

    I’ve seen a case of an officer who was legally separated, who’s wife lived in another state, and who’s wife knew and did not care that he had a girlfriend.

    Said girlfriend got mad at officer and reported him for adultery and he gets a GOMOR which of course means no Major and ends his career.

    How does that impact his military service in the slightest? How is it even bad judgment? Other than picking a bad woman for a g/f? It’s ridiculous.

  9. Anonymous says:

    Old but tangentially relevant to this thread: http://www.nytimes.com/2005/08/11/politics/11general.html?_r=1

  10. Anonymous says:

    And such a situation is ridiculous. No relation to the military whatsoever except for “adultery is bad.” Well, there are a lot of things that are arguably bad but which as long as they don’t affect the military aren’t punished.

  11. John O'Connor says:

    Isn’t adultery basically a 134 offense now?