In an en banc published opinion in United States v. Hackler, 75 M.J. 648, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (link to slip op.), the NMCCA rejects an appellant’s Equal Protection challenge to the enumerated offense of adultery in violation of Article 134.

The appellant was convicted of adultery in connection with an alleged sexual assault of a fellow Marine. On appeal he challenged this conviction, asserting:

an “equal protection violation,” arguing that adultery charged under Article 134, UCMJ exposes service members in opposite-sex marriages to a harsher punishment than it does to those in a same-sex marriage. The appellant also asserts third party standing to challenge the statute on grounds that it “den[ies] homosexuals marriage on the same terms and conditions” as heterosexuals.

Hackler, slip op. at 8. The crux of the appellant’s argument was that “adultery does not apply to service members with same-sex spouses because the offense requires ‘sexual intercourse,’ which he claims is defined such that only members of the opposite sex may perform the act.” Slip op. at 9.

Writing for the court Senior Judge King explains that even assuming the appellant’s argument about the meaning of sexual intercourse is accurate (and the NMCCA’s opinion functionally does so), the mere fact that it is part of an enumerated offense under Article 134 does not mean that other types of sexual activity are not equally punishable under similar circumstances and with similar consequences. This strikes me as the only sensible result. So too the CCA, it seems, as the opinion is unanimous.

Addressing the scope of Article 134, Senior Judge King explains that:

the Presidents listing one example does not preclude charging similar conduct under Article 134. In fact, any service member may be charged with a sexual act that violates Article 134’s terminal element, provided the alleged conduct is not preempted (see MCM pt. IV, ¶ 60c(5)(a); United States v. Anderson, 68 M.J. 378, 386-87 (C.A.A.F. 2010)), and the notice requirement is satisfied (United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003). See, MCM Part IV, ¶ 60c.(6)(c)(“if conduct by an accused does not fall under any of the listed offenses . . . a specification not listed in this Manual may be used to allege the offense”); United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013) (“It is settled that a service member may be prosecuted for . . . conduct even if the conduct is not specifically listed in the [MCM],” since the “first and second clauses of Article 134, UCMJ, permit the criminalization of certain conduct not otherwise prohibited[.]”). Therefore, contrary to the appellant’s position, Article 134 does not limit charging service members in same-sex marriages who engage in extramarital sexual infidelity prejudicial of good order and discipline or of a nature to be service discrediting with a general disorder violation.

Slip op. at 10. Additionally, addressing the maximum punishment, Senior Judge Kings notes that:

An adultery conviction carries a maximum punishment of confinement for one year, total forfeitures, and a dishonorable discharge. MCM, Part IV, ¶ 62(e). For an offense not listed, the maximum punishment is the same as any “closely related” offense listed elsewhere in Part IV, if one exists. R.C.M. 1003(c)(1)(B)(i). See also United States v. Bivins, 49 M.J. 328, 332 (C.A.A.F. 1998) (finding the appellant can be prosecuted for a novel offense under Article 134 and subject to the maximum punishment for the most closely related offense listed in Article 134.); United States v. Ettleson, 13 M.J. 348, 367 (C.M.A. 1982) (observing that even if the court adopted a different interpretation of a term in a listed offense, it would result in a “closely- related” offense subject to the same maximum punishment.). We compare the elements of the offenses in question to determine if they are “closely-related.” United States v. Busch, 75 M.J. 87 (C.A.A.F. 2016).

Considering the scope of Article 134 and the mechanics of R.C.M. 1003(c)(1)(B)(i), the appellant has not established that the maximum punishment he faced for his adultery conviction would necessarily be different than that faced by any service member who committed similar extramarital conduct, including marital infidelity involving oral or anal sex.

Slip op. at 10-11.

Perhaps this case is just our yearly reminder that the crux of an adultery prosecution is its deleterious effect on the military mission and not morality or the sanctity of marriage. Prior reminders are discussed in my January 2015 post: Scholarship Saturday: Much ado about adultery; and my October 2014 post: The NMCCA issues a reminder that adultery requires more than sex outside of a marriage.

8 Responses to “The NMCCA rejects an equal protection challenge to the enumerated offense of adultery in violation of Article 134”

  1. k fischer says:

    I could be wrong, but did the adultery specification allege an offense?

    Specification: In that [the appellant] did, . . . on or about 30 October 2012, wrongfully have sexual intercourse with [LCpl D], a woman not his wife, such conduct being to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

    It appears what the Gov’ment alleged was fornication, as there is no indication in this specification of which party was married, unless it was contained within the three dots indicating missing language.  In fact, I did a search of the term “married” and it did not appear in the opinion.   Either “[appellant], a married man,” or “a married woman not his wife” should have been included.    

    Here, in contrast, the essence of criminality was not even implied. The mere use of words such as “wrongfully have sexual intercourse” in conjunction with “a woman not his wife” implies nothing more than classic fornication, not that one of the parties is married. We note that one element of adultery requires wrongful sexual intercourse; a separate element requires that at least one of the parties be married. Para. 62b. Thus, an allegation of the wrongfulness of the intercourse is independent, not redundant, of marital status.

    United States v. King, 34 M.J. 95, 97 (C.M.A. 1992)


  2. stewie says:

    What this is really a reminder of is that we should get rid of adultery altogether.
    If SPC Snuffy pulls a Jody on his/her buddy, or 1SG Jerk sleeps with one of his/her subordinates spouses, just use the Gen Art.
    If an officer does it, just use 133.
    Pull out the specialization and the intercourse, and you’d meld it closer to what it is supposed to be, wrongful conduct that affects PGOD (you will never convince me that SD is ever going to be implicated in any but the most wildest of circumstances).

  3. Concerned Defender says:

    The government loves this add on charge to rapes and sex assaults, practically guaranteeing a conviction on at least the adultery.  I agree this adultery charge is long overdue to be eliminated, along with several other outdated offenses.  

  4. Tami a/k/a Princess Leia says:

    K Fischer,
    You’re correct, as written it fails to state an offense because it doesn’t allege he’s married to another or that she is married to another.

  5. k fischer says:

    So is it too late to appeal on that issue?  And if so, then how did I see that, but nobody else did.  I’m not exactly the brightest candle on the menorah, you know…..

  6. Tami a/k/a Princess Leia says:

    Failure to state an offense can be raised at any time, I believe, including to CAAF, since it’s a legal, as opposed to factual, issue.  And it’s not waiveable.  What bothers me is that the trial judge and NMCCA apparently didn’t catch it either.

  7. stewie says:

    Based on the summation in the decision one would have to agree, my only question is that it’s not the charge sheet so it’s possible the summation is what is missing the word married, but not the charge sheet?

  8. k fischer says:

    The spec is listed in footnote 1 on page 2.