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.