UCMJ & Adultery

What does the UCMJ say about adultery? The Uniform Code of Military Justice defines a whole list of expectations, rules, and regulations governing the conduct and duty of those who serve in the U.S. military. UCMJ rules make certain things illegal for military members to do that are not technically illegal in the civilian world, and adultery is one of those things.

In decades past, you could be successfully prosecuted and disciplined for adultery as a military member. The incident(s) did not have to be directly responsible for a breakdown in good order and discipline of a military unit to be punishable under UCMJ jurisdiction. Also, commanders previously had a very different definition of adultery under the UCMJ.

The UCMJ went into effect in 1951, and the rules were updated in the 1960s and 1980s, but serious overhauls would be needed. Let’s look at what Army.mil said about adultery and military law from 2012:

“Article 134 of the Uniform Code of Military Justice makes criminal the act of adultery when certain legal criteria, known as ‘elements,’ have all been met.”

What elements?

• The soldier must have had sexual intercourse with someone regardless of gender.
• The Soldier or their sexual partner was married to someone else at the time.
• Under the circumstances, the conduct of the Soldier was to the prejudice of good order and discipline.

The last entry–the “good order and discipline” entry was broadly defined and potentially available as a bit of a catch-all. You could prosecute someone for degrading “good order and discipline” through adulterous contact if there was no other way to move forward.

In 2016, Congress passed the Military Justice Act which would, over time, reorganize aspects of the UCMJ, including what legally constitutes adultery in the military and when it can be punished.

These changes also redefined aspects of how the military views and prosecutes domestic violence, and brought new and specific prohibitions against training instructors having sexual relationships with their trainees.

What The UCMJ Says About Adultery In The 21st Century

The entire notion of enforcing rules about the consensual sexual conduct of military members who are not in a training environment or similar circumstances may seem terribly outdated. Still, in cases where a situation involving adultery does result in a degradation of good order and discipline within a military unit, it is punishable under the UCMJ.

The general approach to adultery in this context seems to be closer in line with current American society than in decades past. Before the revisions, troops could be punished simply for getting into a situation that could be technically defined as adultery under military law.

But now, the rules read differently. How differently?

For a start, it’s no longer termed “adultery”. The formal charge is known as Extramarital Sexual Conduct.

In years past, adultery could have been interpreted only as an “offense” committed between heterosexual couples. Under the UCMJ now, it is defined as any “extramarital” sexual contact and is not restricted to specific types of sexual intercourse.

Adultery Is Now Gender-Neutral

Extramarital Sexual Conduct is now punishable on a gender-neutral basis, but it is not punishable simply because the conduct occurs. That is a feature of the OLD rule on adultery, but in the 2019 Manual For Courts-Martial, we learn that in order to be prosecutable as an offense, the conduct must be:

“…prejudicial to good order and discipline or of a nature to bring discredit upon the armed services.” Under the new UCMJ rules, the conduct itself is not sufficient to bring charges otherwise. It doesn’t matter whether the sexual conduct was considered heterosexual or otherwise, all such issues under the UCMJ are reviewed independently of sexual orientation.

Changing Attitudes

In the 2019 Manual For Courts-Martial, this is codified loosely but includes a revision that shows how the military is changing its stance on the entire issue. Prior to the overhaul of Adultery rules in the UCMJ, the presence of the conduct alone could be interpreted to be prejudicial to good order and discipline. Now, that is not true.

One indication of this? The fact that the revised UCMJ now permits a defense that was previously not allowed–situations where “adultery” was occurring while a marriage was being legally dissolved, in cases of legal separation, etc. The 2019 Manual states that “legal dissolution” was a factor “in assessing whether the conduct at issue meets a terminal element” that would make it prosecution-worthy.

Limitations To The Legal Separation Defense

The legal separation defense has its limits. In order for it to be successful such a defense must apply to both parties to the conduct; they must BOTH “either be legally separated or unmarried. 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.”

Circumstances Count

Commanders and those responsible for prosecuting such offenses will ask a number of questions about the conduct before making a final determination of whether to move ahead with a case, non-judicial punishment, or other steps.

One of the most important questions that will be asked involves the circumstances of the conduct. Was it a one-time incident unlikely to happen again? Were there any contributing factors, such as alcohol or other complicating issues, that could have played a role in the situation? And was there an actual breakdown of good order and discipline or did the conduct truly bring discredit upon the military?

Some of those things might be very difficult to prove in a court-martial, but depending on the individual facts of the case, the story could be quite different if there are witnesses, evidence, and an ongoing situation that requires action by the chain of command.

Punishment For Adultery Under The UCMJ

The maximum punishment for adultery, defined in the Uniform Code of Military Justice as Extramarital Sexual Conduct, is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to a year.

However, those who are found guilty are likely (depending on circumstances) to be given a punishment that is not “maxed out”; instead, these individuals may be offered:

• Administrative Disciplinary Action
• Administrative Separation
• Court-Martial, with possible brig time, reduction in rank, forfeitures of pay and a punitive discharge