Yes. The Navy-Marine Court of Criminal Appeals (N-MCCA) explored this issue in March 2016 in United States v. Hackler. In this case, Lance Corporal Hackler, appellant, had been convicted of adultery along with some charges relating to the sexual assault of a female Lance Corporal. As part of his appeal, appellant claimed that servicemembers in an opposite-sex marriage were being treated more harshly than those in a same-sex marriage because those in a same-sex marriage cannot face charges of adultery under Article 134. Appellant argued that adultery does not apply to couples in a same-sex marriage because the offense requires “sexual intercourse” which military courts have typically defined as sex between a male and a female. Appellant contended that this was a violation of his 14th Amendment right to equal protection. The N-MCCA quickly dismissed appellant’s claim stating that Article 134 is very broad and allows prosecution of all “disorders and neglects to the prejudice of good order and discipline in the armed forces, [and] conduct of a nature to bring discredit upon the armed forces.” Therefore, the N-MCCA held that extramarital relations involving oral sex or anal sex certainly could result in a court-martial conviction under the broad scope of Article 134 as long as the relations were to the prejudice of good order and discipline in the armed forces or represented conduct of a nature to bring discredit upon the armed forces. Additionally, the court held that such a conviction would not have to be limited to a “general disorder” violation under Article 134 and therefore could hold just as high of a court-martial sentence as the maximum allowable punishment for adultery. Appellant’s conviction was therefore not overturned based on this argument. However, there are plenty of arguments to be made at the appellate level. I have had a great deal of success arguing at the court-martial and appellate level. If you need help with a court-martial appeal, you need experience. I have that experience. Call me now, I can help you or your loved one with an upcoming court-martial or court-martial appeal. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
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