In a per curiam opinion in United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (link to unpub. op.), a three-judge panel of the NMCCA reverses a plea of guilty to adultery in violation of Article 134, with this important reminder:

In 2002, the President issued Executive Order 13,262, 67 F.R. 18773, 18778 (2002), amending the MCM to create a separate explanation of the terminal element unique to adultery offenses. See United States v. Jonsson, 67 M.J. 624 (C.G.C.C.A. 2009). Since then, the MCM provides, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember.” MCM (2012 ed.), Part IV, ¶ 62c(2). “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.” Id. The explanation then goes on to provide a non-exhaustive list of factors to consider when determining whether adulterous acts are prejudicial to good order and discipline or service discrediting.

This new explanation operated to narrow the scope of adultery as an offense under the UCMJ.

Slip op. at 5. The CCA reversed the plea after finding that military judge failed “to ensure the appellant understood the meaning of prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces not only in a generic Article 134 sense, but in the narrower sense defined by the President specifically for the offense of adultery.” Slip op. at 6 (marks omitted).

25 Responses to “The NMCCA issues a reminder that adultery requires more than sex outside of a marriage”

  1. stewie says:

    So the emphasis on “open and notorious nature” means what exactly? Certainly that would exclude cases where the only people who know about it are the two lovers and perhaps the spouse i.e. being discreet/down low is good, being blatant and obvious is bad?

  2. Caveman says:

    This also bears watching in Gutierrez, which is currently before CAAF.

  3. ResIspaLoquitur says:

    I’m waiting for someone to challenge an “open marriage” in a military setting.  That’ll be a fun fight.

  4. Saul says:

    Is Polyamory contrary to good order and discipline?  Is it service discrediting?  It’s a lifestyle choice not all that different than many already accepted in the military. 

  5. SomeJag says:

    RE:  Article 134 (Adultery) and Non-traditional* Forms of Marriage
    *yeah yeah, polyamory is “traditional” in a world history sense….
    It seems clear to me that Article 134 (Adultery) is going the way of Lawrence v. Texas.
    As stated in Justice Scalia’s dissent, the Lawrence v. Texas decision stripped from legislatures the ability to police up sexual morality.  Adultery is no longer an evil to be criminalized unless it is also PGOD (Sleeping with superior/subordinate or battle buddy’s wife, etc.) or SD (removing wife from DEERS, adding mistress, committing bigamy through false official statements, etc).  Just as this rule from Lawrence v. Texas is logically leading courts to find that there is no reason to ban gay marriage, it should lead them to find that there is no reason to band polyamory.  The military, IMO, is not immune to this, despite services customs and expectations to the contrary.
    With the repeal of the prohibition on consensual sodomy from the UCMJ, the government has backed away even further from regulating sexual morality.  If a servicemember is free to engage in all sorts of dissipation at clubs and in intimate (or casual) sexual relationships as a serial bedhopper outside of marriage, why can’t he or she be one inside marriage?  If a servicemember is free to commit adultery so long as it doesn’t create a fuss, it follows that polyamory, so long as it doesn’t make a fuss**, should not be outlawed.  
    **good luck
    The services don’t need to concern themselves with the policy here, that decision was made for them in 2002 by SCOTUS.  So now we need to get along with enforcing the law (or changing it by democratic means if you don’t like it).
    They laughed at him then, but Senator Santorum was right.

  6. Caveman says:

    That would also be Gutierrez.  There are several interesting questions posed by the adultery charge in that case — What’s the status of adultery post-Lawrence?  Is it really criminal if the wife is participating, filming, etc.?  Is the terminal element a gimme?

  7. ResIpsaLoquitur says:

    I wouldn’t even go so far as the wacky situations like the polyamorous family or one where it’d be legal but for “oh, it’s an indecent act because someone was in the room.”  (I love how you can film yourself having sex with someone and show it to your buddies and it’s legal, but put them in the same room and now it’s an indecent act.)  It could be something as simple as the wife who gives her husband permission to fool around during deployment as long as she doesn’t hear about it.

  8. stewie says:

    SomeJAG, maybe I’m misunderstanding you, but are you seriously lamenting that you can’t prosecute adultery anymore unless it’s PGOD or SD?  AKA, the law as it’s been written, but not really followed, since the beginning?
    And are you also lamenting not being able to prosecute what I can only read as not being celibate before marriage?  And what is a dissipation? Does it involve vinyl?
    Did we transport back to serving during the Crusades or is this just a really masterfully done sarcastic post? Because if it’s the latter, well done.

  9. Neutron73 says:

    Wow, NMCCA actually decided to really enforce the true standard for adultery.  Someone please fetch my fainting couch!
    Seriously, this decision needs to be stamped on the foreheads of every commander and senior enlisted leader out there, for some seem to be hell-bent on teeing up every servicemember for having sex outside their marriage, when it has ZERO effect on GO+D and isn’t service discrediting.  Irritating to the no end.  It’s like many COs and GOs want to regulate everything their servicemembers do, including what they do in the bedroom.
    “The more you tighten your grip, Sir, the more troops that will slip through your fingers.”

  10. Andy P says:

    Neutron73, I Love it!  A Star Wars quote on the CAAFlog.

  11. SomeJag says:

    No lamentations from me on this matter, nor sarcasm, just observations (poorly written?) of “what the courts will [or should] do in fact.”  I’m just pointing at the reasoning in Lawrence taken to its logical conclusion.  I also can’t help but notice that Lawrence, as hated as it was by so many in 2002, is pretty much the prevailing societal attitude in 2014 regarding sexual morality.  This leads me to conclude that the military, despite its history (purported, if you prefer) of ascribing to good morals, will also have to fall in line with this notion.  In the absence of demonstrable, palpable harm caused by a consensual sexual act, courts can’t find it criminal.  To quote one of my law professors, “we know this is true because at least 5 justices of Supreme Court told us so.”
    As a final observation, it seems clear to me that the legal prohibition on polyamory is unconstitutional under Lawrence.  If courts reject a majority enacted law that prohibits a same sex couple form adopting children, finding no rational basis that this will corrupt a child, then what’s wrong with polyamory?  There is more historical basis for polyarmory than same sex marriage.  The fact that Senator Santorum was near universally mocked and paraded in the media as a knuckle dragging troglodyte for claiming that the legalization of same sex marriage would lead to the legalization of polyamory, doesn’t make his observation false.  Nor do his politics invalidate his observation, if you don’t like those.  When I commented “Senator Santorum was right,” this is what I was referring to.
    So no, I don’t care to prosecute adultery absent the PGOD or SD elements.  Regarding dissipation, in my short Army career, I’m amused at how worked up a commander can be when a Soldier commits adultery, and yet Soldiers, even if married, are not prohibited from engaging in all manner of (what we used to call) debauchery at night clubs and strip clubs (just no drugs!).  If I’m not being clear, let me try again:  “dissipation” is a preacher’s euphemism for the sinful life that a young person is often tempted to.  Just imagine was a clean cut preacher would imagine of a lifestyle centered around Bourbon Street–that is dissipation.

  12. stewie says:

    I’m still confused (some would say that’s a lifelong struggle/personal problem). What does how we charge adultery have to do with Lawrence?  How does recognizing that we had a double standard between how we treated sexual conduct by homosexuals with the same sexual conduct by heterosexuals really dealing with sexual morality?
    I think your slippery slope argument is covered in WD-40. To go from, you can’t treat homosexuals differently to “polyamory” or as I’m sure is coming next “man on dog” isn’t just a slippery slope, it’s a slope covered in, ahem, KY.
    I would prefer not to serve in an organization where the baseline standard for not being prosecuted is “what would a preacher do?”

  13. RKincaid3 (RK3PO) says:

    I can’t believe this offense is still on the books anywhere.  Government has NO business whatsoever regulating private, consensual conduct–sexual or otherwise–between consenting adults.  Period.

  14. Lieber says:

    The day CAAF takes Lawrence seriously (Marcum didn’t IMHO), will be one of the happiest of my JA career.  Probably the happiest.  I’m really tired of commanders and, yes, Judge Advocates in some cases, enforcing their personal sexual mores onto other service members.

  15. stewie says:

    I don’t agree with that RK3.  1SG sleeps with one of his Soldier’s wives. That absolutely should be regulated/prohibited. Fraternization. Senior NCO/junior Soldier. Those all should be regulated.
    Now adultery that has no impact on the unit, should not be. Threesomes? I don’t think so either unless it’s in the middle of the street or something.

  16. RKincaid3 (RK3PO) says:

    Well, I guess this case sucks for all those SVCs who think their duty to their victim “clients” includes going out of their way to get revenge by demanding that something–ANYTHING–be done to the accused Soldier.  Unless the facts of the case support that the adultery was PGOD or SD, adultery is no longer a viable option for trial–especially as a stand-alone charge.
    We have a case here where a Soldier is in a continuous hold and unable to move on with his life despite that fact that the sex assault  allegation was unfounded–no reason for trial–in large part because the victim was married at the time she hooked up with the accused (who was single at the time) and it appears likely that the victim made the allegation to avoid getting in trouble with her husband after he caught her being unfaithful (NO, say it isn’t so–that NEVER happens!).
    Now the SVC (at another post) is demanding that something–ANYTHING–be done to punish the Soldier for what appears to be a consensual act and, if adultery charges are not pursued against the Soldier, then “they are taking this further” (uttered in a low, threatening, menacing tone).  Simply petty and ridiculous.
    As if there really was any doubt about this before, thanks to this NMCCA case, the door appears to be finally shutting HARD (rightly so) on adultery (sans evidence that the incident was PGOD or SD) being a viable trial option (especially as a stand-alone offense) or threatening tactic for the valiant SVCs fighting the hordes of accused sex offenders.  It also seems to me that the SVC program is utterly and totally out of control–IF–their role has changed from assisting the victim (with understanding and getting through the legal system and accessing other support) into exacting vengeance at the tip of a sword.
    If the SVCs role is more of an avenging equalizer than helpful assistant, then the acronym “SVC” really stands for “Special VENGEANCE Counsel.”

  17. RKincaid3 (RK3PO) says:

    Stewie:  Understand your point–but aren’t their other offenses that can be charged (creatively) without using the word “adultery,” which invokes the specter of government regulating private, adult consensual conduct (regulations that most Americans don’t support)?
    There are surely other ways for a clever prosecutor to skin this cat that don’t involve invoking the absurd morality laws of yesteryear–back when church and government were inextricably–and inappropriately–commingled.

  18. stewie says:

    I think it’s the fact that the person is married to someone in particular that causes the PGOD. If they weren’t, then it’s significantly lessened. So I have no problem with calling it adultery, so long as we actually put emphasis on the PGOD element.

  19. Lieber says:

    Or we could junk the adultery charge, add a paragraph to AR 600-20 that expands frat to include the spouse of someone to whom frat would otherwise apply and then Article 92 would apply nicely to your philandering 1SG.

  20. AF JAG says:

    @RKincaid3–I am sympathetic with your point about regulating sexual morality only IF it has no impact on good order and discipline or is service discrediting. 
    BUT, here’s an interesting factoid–according to the New York Times, the civilian crime of adultery is still on the books in 23 states (and a felony in 5 of them).  Here’s the most interesting part–my quick research on Westlaw shows the New York Times is off . . . it’s actually 28 states plus Puerto Rico.  Now, I’d assume it’s rarely (if ever) prosecuted . . . but just sayin’.

  21. RKincaid3 (RK3PO) says:

    Lieber is 100% right ON target.  There are other ways of address service member conduct that is PGOC/SD without Uncle Sam looking like a nattering old Mother Superior with the morality ruler ready to smack one’s hand.
    As for 28 states that still recognize adultery as a legitimate offense (5 of which stupidly consider it a felony)–I would lay money that you are correct–they don’t prosecute them.  And if not, doesn’t that imply that they are unlikely to get convictions from a jury?  And doesn’t that in turn imply that society has evolved to the point where the offenses should come OFF the books?  They are also probably in the same group of states still attempting to litigate same-sex marriage–which doesn’t instill me with confidence in the quality of either their legal or moral judgment!
    Or does it cost a legislature too much to repeal a statute that they know is not (and probably cannot be) enforced since no modern jury (at least one that is not full of self-appointed morality cops) will convict?

  22. stewie says:

    I don’t see the need. The problem isn’t/wasn’t that adultery was a crime, it was that the PGOD/SD element was pretty much ignored by everyone (usually when writing GOMORs) and thus it was/is treated as if that final element didn’t exist.

  23. (Air Force) Special Vengence Counsel says:

    @RK3PO –

    You say:
    We have a case here where a Soldier is in a continuous hold and unable to move on with his life despite that fact that the sex assault  allegation was unfounded–no reason for trial–in large part because the victim was married at the time she hooked up with the accused (who was single at the time) and it appears likely that the victim made the allegation to avoid getting in trouble with her husband after he caught her being unfaithful (NO, say it isn’t so–that NEVER happens!). Now the SVC (at another post) is demanding that something–ANYTHING–be done to punish the Soldier for what appears to be a consensual act and, if adultery charges are not pursued against the Soldier, then “they are taking this further” (uttered in a low, threatening, menacing tone).  Simply petty and ridiculous.

    Doesn’t sound like a civil situation with the SVC, but I’d ask you to consider that you are assuming your accused soldier is innocent and this is a vindictive attack; maybe it is, but are you sure? So she was cheating, does that mean something didn’t happen? And if you aren’t sure, does that not change the calculus a bit? If you reported a crime but, through the incredible investigative skills of a couple of CID agents (and I attended their sex crimes investigative course and have worked with them with frequency in this job and over a couple TC tours…jeez) the sex assault case was unfounded and you were told nothing could (or at least would) be pursued, but that there was another potential avenue for some time of punitive sanction (134), is it so unbelievable you might be interested in seeing it pursued?
    Is that a victim’s desire for vengeance? Maybe, but so what? If she was assaulted, why can’t she want vengeance? I think a lot of folks would. It’s the G’s obligation to seek Big J “justice,” not the victim’s (and not the /accused’s/DC’s either, I might add) and there is nothing wrong with that.
    If the SVC is using questionable tactics, call him or her on it and move on. I sure as heck have worked with DCs who have used the pressure of making a situation painful for the command to extract what they want and while it annoyed me at the time, at the end of the day, they were working in what they believed to be their client’s best interest (otherwise known as doing their jobs). 

  24. stewie says:

    Vengeance is never, and should never be a part of the equation for the government . An alleged victim can want vengeance til the cows come home, that’s human nature, and completely understandable.  The government does not have that luxury. The Government does not work in the alleged victim’s best interest, they work in the best interests of justice. Hokey I know, but still I think, the right answer.  The defense attorney has a completely different mandate (as does the SVC). I think then that if the SVC is putting forward that the alleged victim would like to see the accused punished for adultery, that’s probably ok. Their role is to advocate, not justice. Having said that, I’m not sure how much “further” one can take it. If this is a case so bad that even in this environment they aren’t going forward, then not sure what the leverage is here.

  25. Lieber says:

    AFJAG, that factoid doesn’t mean anything though.  all kinds of unconstitutional laws are on the books.  when a law is deemed unconstitutional it doesn’t automatically disappear from the code.  it just becomes unenforceable.  for a law to be removed from a code requires a state legislature to affirmatively repeal it.  that rarely happens (usually only when it’s blatantly racist or something)