Adultery does not always amount to a crime in the military.

The Uniform Code of Military Justice (UCMJ) uniquely makes adultery a crime.  So even if two consenting adults are involved in the adultery, criminal charges can be brought against a servicemember whether he or she is married or having sexual intercourse with a married individual.  However, in order to be convicted of adultery, the UCMJ requires that the adultery is either prejudicial to the good order or discipline of the service involved or that the adultery is service discrediting.  Recently, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) in U.S. v. Freeberg emphasized that adultery is not a crime unless there is evidence of one of these elements affecting the service. In this case, the appellant had a sexual relationship with a female servicemember who he worked with and he was married to a civilian woman at the time.  However, in this case, the appellant was separated from his wife and she knew about the extramarital affair he was having with the servicemember  The appellant’s wife never reported the affair.  Appellant pled guilty to adultery at his court-martial and after the providence inquiry the military judge accepted his guilty plea and found him guilty of adultery.  However, the NMCCA reversed the guilty conviction finding that the evidence did not show that the adulterous affair was prejudicial to good order and discipline or that it was service discrediting.  In this particular case, there was no evidence that the affair had any effect on the workplace because the appellant and female servicemember were discreet.  Additionally, there was no evidence that anyone thought less of the military because of the conduct.  Appellant’s wife from whom he was separated knew about the affair and did not report it.  For these reasons, despite the guilty plea, appellant’s conviction for adultery was reversed.  If you or your loved one is facing a court-martial charge of adultery or looking to appeal one, I have experience with this offense (as well as all offenses in the UCMJ).   Just because you had an extramarital affair while in the service, you may not be guilty of adultery under the UCMJ.  I have the experience to know what your best defense is in your court-martial no matter what charges you are facing.  I am also very experienced with court-martial appeals.  Even if you pled guilty during your court-martial, you may still have a valid appeal like the appellant in U.S. v. Freeberg.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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