Adultery is an enumerated offense under Article 134 – the “General Article” – which prohibits “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” 10 U.S.C. § 934. Hardly the most serious crime punishable under the UCMJ, adultery appears at the end of many charge sheets alleging far more serious offenses, and it has been derisively referred to as “a throw away charge.” United States v. Humphries, 71 M.J. 209, 217 n.10 (C.A.A.F. 2012) (CAAFlog case page) (quoting trial defense counsel). Yet despite the potential for overcharging, it doesn’t take much familiarity with military service to realize that adulterous acts can, under the right circumstances, be enormously disruptive to a unit and easily prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.

However, an article recently published in the Hastings Women’s Law Journal breathlessly proclaims that “the criminalization of adultery represents too great an allocation of power when balancing a governmental interest and the individual protections guaranteed by the Constitution.” Krista Bordatto, The Crime Behind the Bedroom Door: Unequal Governmental Regulation of Civilian and Military Spouses, 26 Hastings Women’s L.J. 95 (2015) (available here). The author (an attorney and a first lieutenant in the Florida Army National Guard, though apparently not a judge advocate) proposes adding an element to the enumerated offense of adultery that would require:

That the sexual intercourse create an actual or clearly predictable adverse impact on discipline, authority, unit morale, unit cohesion, the ability of the command to accomplish its mission, or the ability of the accused to perform their duties to support the armed forces.

Id. at 119.

It’s hard to see how this proposal would actually change the current state of adultery prosecutions. In the Manual for Courts-Martial, the President already restricts adultery prosecutions to only those situations where the conduct is “directly prejudicial to good order and discipline or service discrediting.” Manual for Courts-Martial, United States, Part IV, ¶ 62.c(2) (2012) (emphasis added). Moreover, military appellate courts do not hesitate to reverse adultery convictions that do not meet this heightened standard, even when the conviction is the result of a guilty plea. See, e.g., United States v. Jonsson, 67 M.J. 624, 627-628 (C.G. Ct. Crim. App. 2009). In fact, the NMCCA reversed such a conviction just a few months ago. United States v. Freeberg, No. 201400172 (N-M. Ct. Crim. App. Sep. 30, 2014) (unpublished) (discussed here).

Unfortunately, the article gives only passing attention to this significant provision in the MCM that limits adultery prosecutions, and it totally overlooks cases like Jonsson.

Moreover, I think the author’s analysis supporting the additional element for adultery is badly flawed. For instance, the article asserts that “[a]dultery was not prohibited until women were integrated into the armed forces. . . this integration corresponds with the inclusion of adultery under Article 134 in the 1984 amendment of the MCM.” Bordatto, supra, at 112. While it’s true that adultery was not specifically enumerated under Article 134 prior to promulgation of the 1984 edition of the Manual for Courts-Martial, that’s a far cry from saying that adultery was not prohibited prior to that date. Quite the contrary, actually.

Adultery has long been listed in the Table of Maximum Punishments for Article 134, appearing on page 224 of the 1951 edition of the MCM (the first edition after enactment of the UCMJ) (available here). It was also recognized as an offense under the Articles of War, listed in the Table of Maximum Punishments for Article 96 (the predecessor to Article 134) appearing on page 138 of the 1949 edition of the MCM (available here). And it’s not particularly hard to find significant examples of court-martial prosecutions for adultery that predate the integration of women into the armed forces and reveal that it has always been recognized as an offense under the UCMJ. See, e.g., United States v. Butler, 5 C.M.R. 213, 215 (A.B.R. 1952).

The author also asserts that “certain acts that are considered ‘prejudicial to good order and discipline,’ or are ‘service discrediting,’ are not protected under the Constitution.” Bordatto, supra, at 116. This isn’t quite right either.

Certain factors (some unique to the military environment and others more broadly applicable) may remove a service member’s conduct from the sphere of constitutionally-protected liberty interests. For example, in the context of the First Amendment’s protection of speech, prosecution under Article 134 is permitted where there is “a direct and palpable connection between speech and the military mission or military environment.” United States v. Wilcox, 66 M.J. 442, 448–49 (C.A.A.F. 2008). And in the context of sexual activity in general, “while servicemembers clearly retain a liberty interest to engage in certain intimate sexual conduct, ‘this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy.'” United States v. Marcum, 60 M.J. 198, 208 (C.A.A.F. 2004) (quoting United States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996)).

Finally, the author asserts:

The military incorrectly uses the “separate society” theory articulated in Parker v. Levy to justify limiting Lawrence’s [Lawrence v. Texas, 539 U.S. 558 (2003)] influence and application on military cases. Although the Supreme Court has consistently granted constitutional deference to discretionary military decisions when the military punishes soldiers for conduct that would otherwise be protected under the Constitution, these cases never contemplated a broad military necessity for regulating the fundamental right of privacy concerning consensual sexual acts. It is challenging to imagine a special military necessity or justifiable link between consensual adult private sexual conduct and service credibility, or good order and discipline. For that reason, Lawrence should be applied to all military cases dealing with adulterous acts.

Bordatto, supra, at 117 (footnotes omitted). There are really three separate problems with this analysis.

The first is that Lawrence does apply to the military, including in adultery cases, but there may be “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Marcum, 60 M.J. at 206-207.

The next is that the President’s requirement that adultery be directly prejudicial to good order and discipline or service discrediting in order to be punishable under Article 134 likely eliminates any case involving purely private sexual activity between consenting adults from the rubric of adultery.

Finally, I don’t think anyone seriously claims a broad military necessity to regulate private sexual activity under Article 134, nor do the courts recognize one. Rather, it has long been recognized that “Congress has not intended by Article 134 and its statutory predecessors to regulate the wholly private moral conduct of an individual.” United States v. Snyder, 4 C.M.R. 15, 19 (C.M.A. 1952). And “no one disagrees that wholly private and consensual sexual activity, without more, falls within Lawrence.” United States v. Goings, 72 M.J. 202, 206 (C.A.A.F. 2013) (CAAFlog case page).

The article’s title implies that court-martial prosecutions for adultery address a “crime behind the bedroom door,” but the reality of the prosecution of adultery under Article 134 is that the crime is found outside the bedroom, in the disruption of a unit or the risk of discredit to the service. Put differently:

An allegation of adulterous conduct cannot imply the terminal element. . . . An accused cannot be convicted under Article 134 if the trier of fact determines only that the accused committed adultery; the trier of fact must also determine beyond a reasonable doubt that the terminal element has been satisfied. Because adultery, standing alone, does not constitute an offense under Article 134, the mere allegation that an accused has engaged in adulterous conduct cannot imply the terminal element.

United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (citation omitted). As such, the privacy implications of an adultery prosecution are relatively minor.

14 Responses to “Scholarship Saturday: Much ado about adultery”

  1. stewie says:

    Couple iddues with your analysis:
    1. That sometimes adultery cases have been overturned does not mean that it isn’t overused as a “tack-on” charge in sexual assault cases, when it absolutely wouldn’t have been charged on it’s own otherwise.  I think this is the problem folks have with it…it’s almost never charged on it’s own.  It’s almost always, if not always, charged as a tack-on charge.
    2. The real problem with adultery does not lie so much in the court-martial arena, as it does in the GOMOR arena.  There, you see more adultery GOMORs that result from simply “you had sex with another person while married” with zero discussion of the PGOD/SD portion of the offense.  It’s become a strict liability offense, and as we all know, an OMPF-filed GOMOR ends ones career these days.
    I don’t think the military would lose anything by significantly narrowing the parameters of adultery.  I get the 1SG sleeping with one of his Soldier’s wives, or one Soldier sleeping with another Soldier’s husband, and of course “Jodi” needs the book thrown at them (figuratively) if it’s a Soldier.  But in my experience, those are a lot less rare then military member with a civilian spouse, having sex with another civilian, or a single military member.  Those situations IMO are almost never really about PGOD or SD.
    And I feel the same way about indecent acts involving two or more adults behind closed doors.

  2. stewie says:

    also, issues.

  3. Lieber says:

    What Stewie said.  But it’s not just GOMORs, it’s Article 15s too (just as career ending these days).  Yeah, the Soldier could turn it down.  But they don’t…because we all know that a zealous TC/command will add some FTRs and a false official statement or something to the charge sheet.
    It’s time for us to stop being the morality police.  This is no longer a draftee military. We keep talking about how professional our service members are now.  Then let’s treat them like professionals.

  4. Saul says:

    Thanks for the article Zachary.   this is usually one of the hardest sells when advising commanders.  Some don’t seem to understand how adultery, even if known for a fact, not only doesn’t “require” NJP or a Reprimand, but it might not be appropriate or meet the requirements. 
    the first question I always asked with adultery is “how did the command find out about this?”  Usually that will indicate whether it was PGOD (e.g. Soldier complains that his PSG slept with his wife or SPC sleeps with his 1SG).  However, SD can be more difficult to prove.

  5. Joseph Wilkinson says:

    Saul – I had the opposite experience, happily.  The deployed commander would get an earful of FRG gossip about how so-and-so was out there cheating on so-and-so, then call or see me to ask what kind of investigation had to be done, and what kind of action had to be taken.  Edited version of two or three conversations:
    Me: Is this situation having any effect on your unit, or your mission?
    Commander: No.
    Me: Well, then, you don’t have to do a thing.  If the wife back home thinks he’s breaking up the marriage, she needs to get a divorce lawyer or a private investigator…and you’re neither.
    Commander: (brightens up) Thank you.
    Fully agree about the tack-on charges, especially indecent acts.  “You did a threesome, ha-ha, we got out conviction numbers up.”

  6. dyskolos says:

    My dated experience has been that adultery was changed in officer cases and cases where there was direct PCOD [deployed SM’s First Sergeant ‘looking after’ SM’s wife at home station].  The military community (AF) is small and adultery always seems to create morale problems, especially when it occurs within the same unit.  However, it was never charged by itself, it was a companion charge. 

  7. TBeckett says:

    I would like to  echo Stewie’s comments about the overuse of adultery and add to J. Wilkinson’s comments by saying that good advice is often lacking.
    As for the historical piece, it is unsurprising that adultery is a historical charge; however, that marriage was a different societal institution all those decades ago.  The charge has not been updated to reflect the modern state of marriage, or it is at least not used accordingly.  I think the better course of action would be to remove adultery entirely.  Adulterous acts directly affecting the unit would still be appropriate as general 134s, but we might lose all the tack on uses.

  8. ResIpsaLoquitur says:

    Kinda related: I’ve always loved (so to speak) the incongruency of being able to watch an explicit porn tape of two people having sex, and that’s legal, but if you’re physically in the room with them it’s an indecent act.

  9. Defense Hack says:

    I’ve argued it to a Judge that the adultery wasn’t PGOD or SM and won, once. I don’t think it would work in front of a panel unless the panel was convinced that it was a BS prosecution to begin with, and even then, I think that a number of our panel members see themselves as the morality police. Good voir dire would be critical in seeing whether or not the panel member can split PGOD/SM from the act of adultery. With that said, stewie, why not literally throw a book at someone?And ResIpsa, not at all related. Just weird, man. But yeah, if everyone is cool with having a party, why is it an issue? The indecent act isn’t just on the watcher, it’s on all parties in the room.

  10. Joseph Wilkinson says:

    RIL – That can still be and sometimes has been a 134 violation…I am thinking of circumstances where the servicemember has a homemade consensual porno tape of someone in the unit, and it gets shared out a little too freely.  The case I’m thinking of didn’t make it to court-martial, but there was some NJP. 

  11. ResIpsaLoquitur says:

    @Joseph Wilkinson–I’d love to hear the story behind that one.  I am guessing that there were some extenuating circumstances–the tape was stolen, or the tape was clearly between two partners and one didn’t intend it for public viewing, or something like that.  I would maintain as a general rule that there should presumptively be no crime in watching a porno tape of any two people unless one of the parties on the tape didn’t want it shared.  Sharing it probably *is* a bad idea, but I wouldn’t call it an Article 15 level event.

  12. Joseph Wilkinson says:

    That story is probably best not told in detail.  But your intuition is correct: there were aggravating circumstances.  Word got around that this tape existed, somebody “borrowed” it to copy and returned it…and things went way downhill from there.

  13. Phil Cave says:
    Apparently the complaint alleges that women are selectively prosecuted with adultery? 

    The complaint alleges that the Navy selectively prosecutes women for adultery in violation of the 14th Amendment, and that Penland’s Fifth Amendment rights were violated in the Navy’s prosecution of her for a private, consensual relationship.

  14. Joseph Wilkinson says:

    It’s about an officer who did it with an enlisted woman’s husband and made a video.   I think we selectively prosecute for “stupid.”