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?