People are often surprised to learn that extramarital sexual conduct, which includes “adultery”, is a crime in the military. While this military-specific offense might seem harmless enough to civilians, the military takes such conduct very seriously. Service members convicted of extramarital sexual conduct can receive a federal criminal conviction, confinement, and a punitive discharge from the military.
MJA has defended countless service members facing investigation, court-martial, and discipline for extramarital sexual conduct, including adultery. Contact one of our military defense lawyers today to learn more.
Historically, extramarital sexual conduct like adultery was criminalized to maintain good order and discipline within the military. It’s not difficult to imagine the negative impact adultery could have on morale or mission accomplishment if a commanding officer was found to be sleeping with the spouse of one of his Soldiers, or if a deployed service member was constantly distracted by the fear that their spouse would be hit on by service members back home.
In 2019, the specific crime of “Adultery” was replaced with the more general offense of “Extramarital sexual conduct” under Article 134, UCMJ. The new offense, which incorporates the elements of “adultery”, is designed to prevent and criminalize sexual conduct which negatively impacts the military environment.
However, not all acts of extramarital sexual conduct are criminal. Extramarital sexual conduct is only illegal for members of the armed forces under certain circumstances. To be punishable under Article 134, UCMJ, the Government must prove three elements:
- That the accused wrongfully engaged in extramarital conduct with a certain person;
- That, at the time, the accused knew that they or the other person was married to someone else; and
- That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
“Extramarital sexual conduct” includes the following sexual acts between persons of the same or opposite sex: genital to genital sexual intercourse; oral to genital sexual intercourse; anal to genital sexual intercourse; and oral to anal sexual intercourse.
For consensual sexual conduct to be punishable under Article 134, UCMJ, the government must prove what’s called the “terminal element.” The terminal element is necessary for all Article 134 offenses. It requires the government prove that the conduct at issue was either: (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces.
To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline. While every improper act by a service member could be viewed as prejudicial in some indirect or remote sense, that is not enough to make the conduct criminal under Article 134. Rather, the prejudice to good order and discipline must be “reasonably direct and palpable.”
Alternatively, extramarital sexual conduct may be punishable if it’s of a nature to bring discredit upon the armed forces. “Discredit” means to injure the reputation of. This includes any “conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.”
Article 134 allows the defense of mistake of fact if the accused had an honest and reasonable belief that either he or his paramour were unmarried or legally separated. If the accused can put forward evidence supporting this belief, the burden is on the government to prove otherwise.
The 2019 revisions to the Manual for Courts-Martial (MCM) also added a new affirmative defense: legal separation. For this defense to apply, both parties must be either unmarried or legally separated at the time of the conduct. Importantly, legal separation can only occur by court order.
A service member convicted under Article 134 for extramarital sexual misconduct faces a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
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