So here’s a question I raised during the Legal Assistance same sex partner (SSP) benefits training yesterday, which the presenter rightly punted on. (Aside, before I begin, excellent job to the LA folks at OJAG, great presentation on the changes in military benefits and the like in light of DOMA’s demise).

Adultery states in the elements creates by the President that for purposes of Art. 134, the offense of adultery includes, in addition to the statutory elements,  the elements of:

(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 . . . .

So now that the President has said to the max extent possible treat SSP marriage the same as OSP marriage, can a SSP commit adultery under the current UCMJ and MCM elements? 

[Update]  This from the DoD GC’s comprehensive report on implementing the repeal of DADT, here, at 139:

In addition and in general, we recommend that the Joint Service Committee review all other UCMJ offenses involving sexual conduct or inappropriate relationships to ensure sexual orientation-neutral application of the UCMJ in a post-repeal environment, consistent with the recommendations of this report. For example, as applied in courts-martial, the definition of “sexual intercourse” means only intercourse between a man and a woman.364  Several offenses specified in the Manual for Courts-Martial under Article 134 of the UCMJ— namely Adultery, Prostitution, and Patronizing a Prostitute—all have “sexual intercourse” as a required element of the offense.365 As a result, homosexual sex is not covered under these offenses, such that if a married woman had sex with a man who was not her husband, it could qualify as adultery under military law, but if she had sex with a woman, it would not.  We recommend that the Joint Service Committee determine how to revise these offenses to  apply to both homosexual and heterosexual sex.

Oddly FN 364 references only the MJ Benchbook at 691.  The Benchbook says this on page 691 [warning graphic language follows]:

“Sexual intercourse” is any penetration, however slight, of the female sex organ by the penis. An ejaculation is not required.

NOTE 1: Lack of penetration in issue. If lack of penetration is in issue, the military judge should further define what is meant by the female sex organ. The instruction below may be helpful. See also United States v. Williams, 25 MJ 854 (AFCMR 1988), pet. denied, 27 MJ 166 (CMA 1988) and United States v. Tu, 30 MJ 587 (ACMR 1990).

The “female sex organ” includes not only the vagina, which is the canal that connects the uterus to the external opening of the genital canal, but also the external genital organs including the labia majora and the labia minora. “Labia” is the Latin and medically correct term for “lips.”

First, neither of those cited cases discusses adultery, both are sodomy cases (and the statute in Art. 125 actually mentions the word “penetration”).  Second, if the MCM doesn’t define it and only MJ benchbook (and possibly case law–I have not run a search) defines it, but POTUS has said that the two groups should be treated equally, what does that mean for the definition in the MCM?

24 Responses to “Same Sex Partner Equality in the UCMJ”

  1. k fischer says:

    No Man,
    I think it means that TC’s should be able to craft a charge similar to adultery under 134 provided that the conduct was service discrediting or prejudicial to good order and discipline. I wouldn’t charge adultery if the sexual contact was between two members of the same sex.

  2. rob klant says:

    I join you in the big BZ to Code 16, as well as Code 13 in its recent ethics guidance on the implications of now having an SSP.
    As to the military justice implications, I’d suggest it’s still, as always, PGOD & SD  — vice particular body parts or gender identity — which comtrols.

  3. Mike "No Man" Navarre says:

    The DADT report’s focus aside, I guess part of my question goes beyond the whole anatomy question–though I think that’s a part of this discussion.  It is more of an epistemological or natural law question.  The definition of marriage in the US has been largely defined by religious values, particularly Christian religious values.  What defines the core concepts or tenets of same sex marriage?  Same concepts?  Here’s something I found from an adjunct anthropology profeesor at SUNY New Paltz who writes for DailyKos.

  4. Bridget Wilson says:

    Intercourse: 1. dealings or communications between individuals. 2. Interchange of thoughts, feelings, etc. 3. Sexual relations. (American Collegiate Dictionary). There is nothing in Article 134, Adultery, that describes “sexual intercourse” for purposes of adultery.
    In this realm, we have been clinging to the plumbing determined version of the offense, but really, you don’t have to do that, at least the way I read the Manual. Of course, you could amend the Manual, as has been recommended on numerous occasions, by a variety of knowledgeable persons. You could create, since you are allowed to draft your own 134 offenses another version of “same sex adulterous relations” that have the same effect on good order and discipline as the male/female plumbing version.  If needed as a stop-gap prosecution, or with officers, a 133 charge.
    I admit that same sex marriage is so recent that perhaps updating the adultery provisions was not on the radar, but really gentlemen, it isn’t that difficult to figure out.
    BTW, the Navy Legal Assistance materials are the best summary of the legal issues involved in SSP relationships that I have seen anywhere. The civilian advocacy groups have produced nothing as comprehensive.

  5. k fischer says:

    Upon further pontification, I think that we need not change a thing. 
    Let’s say that Maverick hears that DADT has been repealed, so he finds Iceman and says, “I’ve figured it out, Iceman.”  Iceman and Maverick marry at Miramar base chapel.  After a few months of wedded bliss, Maverick cheats on Iceman with Charlotte, aka “Charlie”  This would be adultery under Article 134 because the sexual intercourse involved a penis and vagina. 
    Change the facts slightly, and Maverick decides he likes the way Slider stinks and they hook up. Couldn’t they both be charged with an Article 125 offense because the “adulterous” nature of their conduct takes their consensual sodomy out of the realm of Lawrence v. Texas?
    Of course, then you would have an inconsistency where if you cheated on your homosexual spouse with a member of the opposite sex, you would face a maximum of 1 year confinement, whereas, if you cheated with a member of the same sex you would be facing 5 years.  They should change Article 125 and make it some sort of adulterous sodomy with a punishment of 1 year.  That way you don’t have to change the traditional article 134 offense and get into all that anatomy.  And, you also have to exclude adulterous consensual sodomy from sex offender registry.

  6. Bridget Wilson says:

    You hit the 125 problem. Still can make it a 134. Or for that matter make some changes. While you are at it move sodomy (service discrediting) to 134 and ad forcible sodomy to 120 where it belongs.

  7. Matt says:

    Another issue is that adultery carries a maximum punishment of 1 year, while a generic 134 charge can only be 4 months.  This creates an arguable equal protection issue for heterosexuals.  I think there could be a motion to reduce the maximum punishment based on this. 

  8. stewie says:

    Or we could just get rid of adultery as an offense altogether.
    Boom, problem solved.

  9. ExTc says:

    Given that Maverick and Slider were officers, why not avoid it all and charge a 133 if the conduct somehow impacts good order and discipline, such as in the same chain of command. I’m wholly against invading the bedroom of others, but if need be, the somehow still constitutional 133 is out there. 

  10. k fischer says:

    Two thoughts on ridding the UCMJ of adultery.
    1.  US v. Schap.  Glover lost his mind, literally, when he decided to impregnate another Soldier’s wife.  Perhaps, having adultery be considered illegal will encourage the actors to ensure their affair is clandestine so that the jealous husband or wife won’t find out and go to the other parties’ commander.  Also see Boogie Nights re: William Macy’s character……
    2.  If adultery were legal, then I would imagine the marriages of convenience would vastly increase in order to gain BAH and move out of the barracks.

  11. stewie says:

    There are other ways we can deal with that situation K.  There are other parts of the punitive articles we can use there.
    I don’t think folks who commit marriages of convenience avoid adultery, it’s just they dont have to worry about a spouse getting upset and telling.

  12. WinMac says:

    another problem with Article 125:  Sodomy’s elements include an act of “unnatural carnal copulation”– retaining this as an element of the offense may indicate unacceptance of homosexuality in the military. 
    Recommend charging the 134 PGOD offense or Article 133 conduct unbecoming for now if there is an ‘adulterous” relationship involving homsexual acts. 
    I have spoken with many commanders and lawyers on this topic.  There is still a desire to keep Article 134 adultery on the books.  The adultery statute does need to be revised to address this matter for relevance and fairness. 

  13. Terminal Velocity says:

    Dovetailing on k fischer’s observation, the fiduciary value to the DOD of maintaining the crime of adultery is to reduce marriages that are entered into for BAH/benefits/etc.  We have created an incentive scheme that encourages marriage (how many of us have seen the young service member make a monumentally bad life decision just to get out of the barracks?), and the offense of adultery at least provides some disincentive for those who are ready for the financial benefits of marriage but are not as ready to forsake all others.  If I were king, I would raise BAH rates across the board but establish a single BAH rate for all servicemembers, regardless of marital status, and require the active duty member to purchase medical insurance for family members if he or she chooses to get married.  Having then removed the incentive for fraudulent or poorly considered marital unions, I would then narrow the offense of adultery to require a more direct military nexus, e.g. the senior officer or SNCO who poaches the spouses of his subordinates or other similar misconduct that directly undermines good order and discipline. 

  14. Lieber says:

    I’m with Stewie.
    I’ve been preaching for years that we can do away with the marital incentives thing by simply forbidding enlisted personnel under the age of 25 from moving out of the barracks regardless of their marital status and doing away with BAH-with.
    As for the truly egregious cases of adultery (superior poaching subordinates spouses)…just expand the frat regs to cover that conduct.

  15. stewie says:

    Where are we getting evidence for the argument that servicemembers are getting married just so they can get out of the barracks? I am fully prepared to accept that young kids get married for all sorts of nonsensical reasons, but I don’t think they often do it because they are tired of being in the barracks, nor do I think it likely they reconsider said scheme because adultery is a crime.
    Adultery is there for one reason, the moral values of a much earlier time when adultery was not just a crime in the military, but all over the country.  The civilian system evolved, the military system did not in this area.
    Lieber, Stewis is not with the idea of forbidding married enlisted personnel under 25 from moving out of the barracks! Talk about a disincentive to re-enlistment.  Why would I, as a young 24 year old E4 or E5, stay in after being treated like a child like that?

  16. Mack says:

    @stewie – I’ve had young soldiers come talk about getting married and divorced and getting out of the barracks was the reason they went for it.  Is it a pervasive issue gripping our military? Nope.  But it happens and I’d bet more often than some would think.  (Marriage for medical care for someone they care for is, however, the reason I’ve heard most often.)  I’m not
    Adultery is more than a simple moral opinion.  I think that the change in moral values makes it harder to show that a particular act is service discrediting, which leaves you with PGOD.  It occurs frequently enough in the ranks and, when your “brother/sister” is sleeping with your spouse, it hurts.   And that’s probably the right line… it doesn’t impose the morality that any sex outside marriage is inherently wrong.  But if you can show the hurt was PGOD, then you’ve got something worth punishing under the UCMJ.

  17. stewie says:

    I’m highly skeptical that it happens very often or often enough to justify it’s existence.  And the theoretical doesn’t match up with the real-world IMO.  Most of the time, adultery is pretty much a guaranteed GOMOR, particularly for officers and NCOs, and thus a career-killer, and usually it doesn’t involve sleeping with another Soldier’s spouse, it’s simply sleeping with someone not your spouse and your spouse reveals it or folks get suspicious because of a relationship.  I’ve seen a legally separated CPT who’s wife didn’t care, get a GOMOR because his girlfriend knew about the rule and turned him in prior to dumping him.  No SD and no PGOD but it was adultery and that’s all that was required.
    The law may require PGOD/SD for a CM but we rarely see CMs, the hit comes from GOMORs.  If you have a situation where someone is sleeping with another Soldier’s spouse, there are paths I think beyond adultery to get to that conduct.  133 is easy enough for officers.  And I think the general article can be used for it against enlisted.  It’s the epitome of PGOD.  It’s a relic of a prior moral era and it needs to go IMO.  It does more harm than good.

  18. Lieber says:

    I meant that I was with Stewie in his comments on adultery.  And his/her comments on GOMORs are completely accurate.
    with that said, the marriage to get out of the barracks thing happens more than you think (put differently, it’s a motivation along with several others in many a junior enlisted marriage)…of course, I don’t think people should get married before age 28 or so…

  19. Mack says:

    @stewie/Lieber – Honestly, if an officer is violating the UCMJ, I’m okay with them getting a GOMOR.  O-3s don’t get to pick which UCMJ articles are the really important ones.  And certainly once a scorned lover starts calling the command, there’s mission impact.  How does your CC (or your subordinate) know that your wife is cool with extramarital affairs?  How do they know that it’s not something that could be used against you?  And, to the extent there is a moral judgment underlying it, so what?  Marriage provides all kinds of benefits to servicemembers and we’re held to higher standards based on our authority to use lethal force on behalf of the sovereign.  If that comes with the not unreasonable condition that you can’t commit adultery that meets this standard, either abide by it or join the civilian world.
    And real world, I’ve seen significant military impact from adultery, admittedly AD and AD/AD’s spouse adultery.  And for the soldiers who see their careers stalled b/c their superior is changing his work schedule so that he’s out of the house and his wife’s free to sleep with the superior (real world), I suspect they’re glad there’s a template for capturing the offense and a MJ system willing to say that behavior’s wrong.
    Finally, for every law there are instances where it seems unfairly applied to a particular person.  But good facts make bad law and sometimes worse policy.  We focus on the system and ensuring that all judicial and nonjudicial actions are fair.  Sure, it’s not always possible.  But that’s no reason to decriminalize conduct that has empirically been PGOD/SD.

  20. stewie says:

    Sure we do, that’s the whole point of this discussion, the future utility of adultery as a crime.  There is also the fact that there is a common element PGOD/SD that gets ignored when GOMORs come along turning adultery into basically sex outside of marriage period.
    There is little mission impact from a phone call. Adultery is not “empirically PGOD/SD” that’s basically saying it’s per se, and it most of the time, it isn’t unless you wildly stretch it to a phone call to the command. 
    It is almost never SD, so what’s left is PGOD, and we have other mechanisms for covering the situations when it is PGOD. 

  21. k fischer says:

    I have two Servicemembers who just moved into my subdivision.  If I came home to one of them in my house with my wife, I would probably consider the Armed Services with ill regard on my way to see a divorce attorney.

  22. stewie says:

    I hold you in higher esteem than to think that you would actually consider the Armed Services in ill regard solely because of the actions of one person.
    Of course, I’ve never, ever seen adultery charged as anything other than as PGOD, so that tells me something.

  23. Lieber says:

    What Stewie said.  In addition, to Mack, what about the unmarried SM who “commits adultery” under the UCMJ (that one is impossible to explain to civilians)?  What about separated SMs?  Divorces can take years to go through, especially with kids and/or significant financial assets/deployments….we really expect separated SMs to be celibate for years?  We all know what really happens, the command turns a blind eye if they like the guy or gal and give them a GOMOR if they don’t.

  24. Neutron73 says:

    Adultery needs to go.  Old rule for old times that has outlived its usefulness.  Like Lieber said above, what about SMs who are going through an agonizing divorce that will take some time?  YOu expect them to tell potential mates to “hold on, I can’t date you until my divorce is final, which might take some time.  Otherwise, the military will prosecute me for having a relationship with another person while I’m still technically married”?  Are we really that dense/inflexible to see how untenable such a situation is for a servicemember?  Talk about ridiculous. I’ve explained that to civilians and they roll their eyes that we actually prosecute people for the “scarlet letter.”
    As Stewie said, you have other avenues to get someone for activity that is PGOD or SD.  But jamming SMs up for garden variety “adultery” (most of it has no nexus to military at all) is truly dumb.