Extramarital sexual offenses-the good and bad
The UCMJ regulates personal morality in a number of ways. One common "offense" is that of adultery. Adultery is prosecutable under Article 134, UCMJ. The Article is a catch-all provision for offenses not listed in specific Articles elsewhere in the UCMJ. The Article covers disorders and neglects that adversely affect good order and discipline or that could bring discredit upon the armed forces. Some have called Article 134, UCMJ, the Devil's Article.
The existence of a legal separation is (mostly) now an affirmative defense. For many years accused's, usually unsuccessfully, sought to defend adultery allegations because the parties were separated from their spouse.
It is now an affirmative defense to the offense of Extramarital sexual conduct that "the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct."
I have added emphasis here because there is still an issue about when can the defense be raised. Commonly, parties separate with the intent to divorce or to undergo a trial period prior to getting back together. The best way to separate is with a written agreement which addresses child custody, debts, property--the problem is that while legally binding, often court's do not approve these agreements until the divorce action is filed. So, caution is needed here until the appellate courts have had a chance to rule on how this affirmative defense operates.
The analysis to the rule explains,
That is, it is not an affirmative defense if the accused is legally separated but the co-actor is still married. By the same token, it is an affirmative defense if the accused is legally separated and the co-actor is unmarried.
The offense requires proof beyond reasonable doubt,
(1) That the accused wrongfully engaged in extramarital conduct as described in subparagraph c.(2) with a certain person;
(2) That, at the time, the accused knew that the accused or the other person was married to someone else; and
(3) 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.
Offending behavior--extramarital sexual misconduct has been expanded beyond the traditional definition of adultery. Under the old Article 134 the prosecution was required to prove vaginal sexual intercourse--the definition of acts required to commit this offense have been expanded. The Analysis of this rule notes that the definition comports with that in "18 U.S.C. § 2256(2)(A)(i) and is gender neutral." That's right, assuming same sex marriages are recognized, then the same-sex spouse can commit the offense.
(2) Extramarital conduct. The conduct covered under this paragraph means any of the following acts engaged in by persons of the same or opposite sex:
(a) genital to genital sexual intercourse;
(b) oral to genital sexual intercourse;
(c) anal to genital sexual intercourse; and
(d) oral to anal sexual intercourse.
Under the old and new offense there are a list of considerations to be balanced before a prosecution ought to be initiated. I think of this as a totality of the circumstances test where not all factors have to be present to warrant prosecution. These factors were developed after the Ralston Affair.
(a) The accused’s marital status, military rank, grade, or position
(b) The co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces
In (a) and (b) think about any supervisory relationship, does one do performance evaluations, does one get to assign work, or in other ways get to benefit or benefit from actions of the co-actor.
(c) The military status of the accused’s spouse or the spouse of the co-actor, or their relationship to the armed forces;
(d) The impact, if any, of the extramarital conduct on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces;
In (c) and (d) think about the effects on the non-offending person. There are cases of adultery with the spouse of a deployed servicemember, what are the effects here.
(e) The misuse, if any, of Government time and resources to facilitate the commission of the conduct;
We see plenty of cases where the accused takes the girlfriend or boyfriend on a TAD/TDY trip and some of their joint expenses are claimed in the official travel pay claim.
(f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the extramarital conduct was accompanied by other violations of the UCMJ;
We see cases where the accused is told to knock-it-off or else.
(g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency;
(h) Whether the accused’s or co-actor’s marriage was pending legal dissolution, which is defined as an action with a view towards divorce proceedings, such as the filing of a petition for divorce; and
(i) Whether the extramarital conduct involves an ongoing or recent relationship or is remote in time.
This is sometimes referred to as the Ralston defense.
As always, reach out to us your civilian defense counsel lawyers who can advise and help.