Adultery in the Military

When Is Adultery Considered a "Crime" in the Military?

Divorced man taking off wedding ring
Peter Dazeley/Photographer's Choice/Getty Images

I get email all the time (usually from wives) asking what constitutes the crime of "adultery" in today's military? Usually, the wife is upset because she perceives that the military did nothing about a wayward husband's wicked ways, or are angry because the military did not punish him for cheating on her.

So, is adultery still an offense under the military justice system? Yes -- and no. It actually depends on the circumstances.

You may be surprised to learn that adultery is not listed as an offense in the Uniform Code of Military Justice (UCMJ). The UCMJ is a federal law, enacted by Congress, to govern legal discipline and court martials for members of the armed forces. Articles 77 through 134 of the UCMJ encompasses the "punitive offenses" (these are crimes one can be prosecuted for). None of those articles specifically mentions adultery.

Adultery in the military is actually prosecuted under Article 134, which is also known as the "General Article." Article 134 simply prohibits conduct which is of a nature to bring discredit upon the armed forces, or conduct which is prejudicial to good order and discipline.

The UCMJ allows the President of the United States to administer the UCMJ by writing an Executive Order, known as the Manual for Court Martial (MCM). The MCM includes the UCMJ, and also supplements the UCMJ by establishing "Elements of Proof," (exactly what the government must *prove* to prosecute an offense), an explanation of offenses, and maximum permissible punishments for each offense (among other things).

While the MCM is an Executive Order, enacted by the President, in reality, much of the contents are a result of military and federal appeals court decisions.

One of the things that the MCM does is to expand article 134 into various "sub-articles." One of these "sub-articles" covers the offense of adultery (Article 134, paragraph 62).

Adultery, as a military offense, is difficult to prosecute (legally) for several reasons.

There are three "Elements of Proof" for the offense of Adultery in the Military:

  1. That the accused wrongfully had sexual intercourse with a certain person;
  2. That, at the time, the accused or the other person was married to someone else; and
  3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Element #2 is usually pretty easy for the government to prove. There is normally sufficient written evidence to prove whether or not someone is legally married. (Many folks will be surprised to learn that in the military, a single person can be charged with the crime of adultery).

Element #1 can be very hard to prove. Remember, a court martial (like civilian court) requires *proof* beyond a reasonable doubt. Proof of sexual intercourse normally requires photographs, a confession of one of the parties involved, an eye-witness, or other legally admissible proof.

(The mere fact that someone stayed over at another individual's house, or even slept with them in the same bed is not proof of sexual intercourse.

Element #3, in many cases, can be the most difficult item to prove. The government must show that the individual's conduct had some direct negative impact on the military. This normally would include cases of fraternization (officer & enlisted) or a relationship with another military member, or a military spouse.

Some of you may remember the famous Lt. Kelly Flynn case of a few years back. Lt. Kelly Flynn was the Air Force's first female B-52 pilot. Unfortunately, Lt. Flynn was an unmarried officer who was having an affair with a married civilian. Lt. Flynn was advised by a First Sergeant, and later ordered by her Commander, to terminate the affair. She broke up with her "boyfriend," but later they got back together, and -- when asked about it -- Lt. Flynn lied. Lt. Flynn was then charged with the offenses of adultery, giving a false official statement, conduct unbecoming an officer, and disobeying an order of a superior commissioned officer.

So, where was the "military connection" for the adultery charge? Well, the civilian "boyfriend," was the husband of an active duty enlisted Air Force member, stationed at the same base as Lt. Flynn. Therefore, Lt. Flynn's "affair" had a direct negative impact on the morale of that military service member (the enlisted wife is the one who originally complained about the inappropriate actions of Lt. Flynn).

Lt. Flynn didn't face a military court, however; she was allowed to resign her commission in lieu of court martial (lots of media attention probably had something to do with this decision by the Air Force).

In 1998, the Clinton Administration authored a change to the Manual for Courts-Martial, which provided that cases of adultery be handled at the lowest appropriate level, and provided specific guidance for commanders to use in order to determine whether or not the member's conduct was "prejudicial to good order and discipline," or "of a nature to bring discredit upon the armed forces." While the President does have the authority to issue changes to the MCM, this proposal resulted in screams and yells from Congress and was subsequently dropped.

However, in a very quiet move, in 2002, President Bush adopted many of the changes that were proposed by President Clinton. In addition to the Elements of Proof," the "Explanation" section under this offense now requires commanders to consider several factors when determining whether or not the offense of "adultery" constitutes a crime.

Before I discuss these factors, it's important to understand the role of the commanding officer in the Military criminal justice process. In the civilian world, whether or not an incident should be prosecuted as a crime is up to the District Attorney (DA). For example, in the hometown where I grew up, a 70-year-old shopkeeper who had been robbed one too many times, got a gun and then took a couple of shots at a robber as the robber tried to drive away. This is a "crime" under the law. It's not "self-defense," as the robber was already driving away at the time, and the shopkeeper had no reason to fear for his life, at the time he shot. Under the law, the shopkeeper could have been prosecuted for several offenses, ranging from unlawful discharge of a firearm within the city limits, to attempted murder. However, under the circumstances, the DA declined to prosecute. The DA felt that due to the shopkeeper's age, the history of previous robberies, and the lucky fact he didn't hit anyone, that prosecution was not in the best interests of the community.

In the Military, the role of the DA is performed by the commanding officer, after consultation with the Judge Advocate General (JAG). It's not the JAG who decides who is and is not prosecuted for an offense in the Military (he/she only advises). It's the commanding officer who makes the ultimate decision. Now that doesn't mean that the DA or the commanding officer have total arbitrary authority. The DA is responsible for his/her decisions to his/her boss (either the people who elected them into office, or the elected official who appointed them, depending on where you live), and the Military commanding officer is responsible to his/her boss (higher ranking commanding officers in the chain of command).

Factors Commanding Officers Are Required to Consider

As mentioned above, the Manual For Courts-Martial now requires commanding officers to consider certain factors when determining whether or not adultery has a direct negative impact on the military, and should be considered a criminal offense:

  • The accused's marital status, military rank, grade, or position.
  • The co-actor's marital status, military rank, grade, and position, or relationship to the armed forces.
  • The military status of the accused's spouse or the spouse of co-actor, or their relationship to the armed forces.

If a high-ranking Military officer such as a Wing Commander, or Battalion Commander is having an affair, this is much more likely to have a direct negative impact on the Military (public perception-wise) than if a two-striper is having an affair. If the Chairman of the Joint Chief of Staff (a 4-star general) is caught having an affair, it would likely be on Fox News, CNN, and headlined in the major newspapers almost immediately. If the two-striper is caught having an affair, it likely won't even rate one line in the local newspaper.

If the affair involves two Military people (especially if they are in the same unit), this is more likely to have a direct negative impact on the Military than if a military person is having an affair with a civilian with no connection to the Military. If the affair involves the additional crime of fraternization, this would very likely have a direct negative impact on the Military.

  • The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces.

When I was a First Sergeant at Edwards Air Force Base, I responded to a domestic argument between two married military members, both assigned to my squadron. There didn't appear to be any violence involved, and -- as neither were willing to tell me exactly what the argument was about -- I decided to put the male member into the dormitory for a couple of days, in order to give them a "cooling off" period.

The very next afternoon, I received a call from Security Forces (Air Force "Cops"), who said they were responding to my dormitory because they received a call that there was a woman in the parking lot with a shotgun, yelling. As it turns out (you guessed it), it was the female member. Apparently, the cause of the argument was that she found out her husband was having an affair with another Military member. Unfortunately, that other member happened to live in the same dormitory I moved the male member into. The thought of them being in the same building together caused her to "snap." She went out (with a shotgun) looking for them (thankfully, she never found them, and the shotgun was not loaded). In any event, it's safe to say that the male member's adulterous affair had a direct impact on the female member's ability to perform her duties.

  • The misuse, if any, of government time and resources to facilitate the commission of the conduct.

One time (again at Edwards Air Force Base), I received at 10:00 p.m. phone call from an upset spouse of one of the members assigned to my squadron. She said that she thought her husband was having an affair, so she followed him that night as he went to the base bowling alley, picked up a young woman and then went to the squadron building.

I drove over to the squadron and went to the member's duty section. Using my master key, I quietly opened the door and -- well, you get the picture. Obviously, this member's choice of location to conduct his adulterous activities was a clear violation of this particular standard.

  • Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ.

In the vast majority of cases, if a commanding officer receives information that a member is, or might be, involved in an adulterous affair, the commander attempts to resolve the situation by counseling the member. In some cases, the counseling is accompanied by a legal order to desist in any adulterous affair. If the member then complies, that's usually the end of the matter. Recall the Lt. Kelly Flynn case --the First Sergeant and commander tried to resolve the situation with a counseling and an order to terminate the relationship. Had Lt. Flynn complied, she might be a senior officer in the Air Force to today. But, she disobeyed the order, violating Article 90 of the UCMJ, then lied about it, in violation of Article 107.

  • 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.

A quiet adulterous affair that nobody knows about is probably not going to have a negative impact on the unit(s) of the parties involved. On the other hand, if "everyone" in the unit "knows" about it (like any "office affair"), it can cause tension and resentment within the unit.

One time, while assigned as a First Sergeant to an Air Force F-15 squadron at Bitburg Air Base in Germany, our squadron was sent TDY (Temporary Duty) for two weeks to Nellis AFB (Las Vegas) to participate in an annual "Red Flag" flying exercise. About half-way through the TDY, I picked up on a rumor that at an off-base party on Friday night, a certain two-striper female operations clerk and a certain married captain (commissioned officer) pilot were seen dancing pretty "hot and heavy" in a corner of the bar where the party occurred. "Everyone knew" what probably happened that night when the couple left the bar.

When I heard the rumor, I briefed the commander, and he counseled the pilot, while I had a talk with the enlisted member. We had no "proof" that sexual intercourse happened, but we wanted to nip the situation in the bud. To all indications, the affair (if any) ended immediately. However, when we returned to home base, the rumors persisted. If the two-striper smiled at the pilot when he walked by, the hallways were full of whispers. If it seemed that the pilot spent too much time at the duty desk (where the airman worked) looking over the daily flight schedule, the whispers would start again.

One day the whispers reached the ears of the pilot's wife and she passed the rumor on to the Wing Commander (however, she most certainly did not "whisper"). That's when all the stuff hit the proverbial fan. While the crime of "adultery" wasn't charged (no way to prove that actual sexual intercourse had occurred), the pilot received an Article 15 for fraternization (inappropriate conduct with an enlisted member), which pretty much ended his career. The enlisted member quietly asked for a discharge, and it was readily approved (she received a "general" discharge).

  • Whether the accused or co-actor was legally separated; and
  • Whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time.

In most cases, commanding officers are not going to be all that concerned with sexual relationships that happen after a member is legally separated from his/her spouse, unless it's a matter that involves some other direct negative impact on the Military, such as fraternization. Additionally, commanders are not going to be all that concerned with allegations that a member had an adulterous affair sometime in the past.

What all of this means is that many incidents of "adultery" may not be considered a punishable "crime" in the military, unless the commanding officer determines that there is some kind of direct negative impact on the military itself. In other cases, the matter is best resolved in civil (divorce) court, just as it is for civilians.

In the civilian world, it's easy to find DAs who are "harder" on prosecuting certain types of crimes in one jurisdiction than in another. For example, DAs in Nebraska are likely to treat possession of marijuana with a harder view than DAs in California. In the Military, commanding officers in different commands also often differ when considering the above conditions. Some commanders may give the conditions a more liberal view than others. Additionally, many people in the Military (including many commanding officers), feel that, as adultery is not a criminal offense in civilian life (it's handled by divorce courts, not criminal courts), so it should be in the Military.

In my experience, adultery is almost never charged as a "stand alone" criminal offense in Article 15 or Court-Martial actions. It is generally added on to the list of charges, only if the member is already going to be prosecuted for one or more other criminal offenses. For example, if the commander decided to prosecute a married Military member for the crime of writing bad checks, and investigation disclosed that the member wrote the checks in order to pay for a hotel room to have an affair with someone, the commander may decide to "tack on" a charge of adultery to the list of bad check charges.

This does not mean, however, that military members are free to shack up with whomever they please. Commanders have a lot of discretion when it comes to administrative procedures, and administrative actions (such as reprimands, denial of promotions, performance report remarks, etc.) are not governed by the relatively strict legal requirements of the UCMJ or Manual for Courts-Martial.

When the matter is resolved using procedures under Article 15 or administrative sanctions, the actions are protected under the Privacy Act of 1974. It's only a matter of public record if the member is punished by Courts-Martial. Under the Privacy Act, commanding officers are prohibited, by Federal Law, to disclose any Article 15 or administrative action, without the express, written consent of the Military member. Therefore, it's entirely possible that the member will be "punished," for committing adultery, and the complaining spouse will never know of it.

More About Military Divorce and Separation

Continue Reading...