Not every adulterous affair can be punished under the UCMJ.
In the military, adultery can be a crime. The Manual for Courts-Martial (MCM) lays out the elements of the crime of adultery. Recently, the Joint Service Committee (JSC) added some supplemental language to the MCM that specifically addresses adultery as a crime. The added language to Appendix 23 makes it clear that not every affair between married people can be prosecuted as adultery. The added language directs commanders to consider the factors listed in Article 134 (adultery) when determining if the conduct is either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The factors are numerous but they are focused on what impact, if any, the adulterous affair had on the military. The JSC makes it clear in their supplementary language that the intent of adultery as a crime is not to criminally punish two adults consenting to an affair that has no impact on the military. The new language specifically states that “[t]he offense of adultery is intended to prohibit extramarital sexual behavior that directly affects the discipline of the armed forces, respect for the chain of command, or maintenance of unit cohesion.” The added language also states that the intent of the language is “to limit the crime of adultery to those situations where the negative impact to the unit is real rather than theorized.” In other words, prosecutors should not charge crimes of adultery unless they can prove that the affair had a “real” negative impact on a unit or the military as a whole. An example of an adultery that might be criminal is one in which a married servicemember has sexual intercourse with the spouse of a deployed servicemember. Another example might be where two married servicemembers in the same unit are openly having an affair in the office place. There are many situations in which an adultery offense might be punishable because it meets the requirements of Article 134. However, there are also many situations in which an adultery offense is placed on the charge sheet by an overzealous prosecutor, when really it simply does not satisfy the elements of Article 134. This is important to understand if you or a loved one is facing adultery charges at a court-martial. It is also important to understand if you believe an adultery offense that you were already convicted of, was not a situation where the conduct impacted the military. You may have a very valid appeal. Either way, you need someone with experience by your side. 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. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.