Adultery and UCMJ

Hi, my name is Sean Mangan. I’m from the law office of Jocelyn Stewart. I’m a former military judge and retired army lieutenant colonel from the JAG Corps.

And I’m here today to talk to you about having sex, specifically about having sex with somebody that you’re not married to. That’s right. So-called adultery under the UCMJ. Now, it is often briefed at safety briefings and in process briefings from initial entry training of all services all the way through professional development, whether you’re an officer, enlisted member, that it is illegal under the UCMJ, to have sex with anyone other than your married partner if you are married or if the other person is married. Now, that’s almost true. Here’s the bottom line. Is it a great policy? Is it good idea to never have sex outside of your marriage? Absolutely. But what does the law really say?

Well, let’s talk about that. So adultery used to be a crime that goes way back in history. And lots of different jurisdictions had different laws about that going all the way back to religion based codes that were in different countries. And then later under the Articles of war, the military adopted that basically to try and keep military personnel in line. And then post 1950, we see in the United States the creation of the Uniform Code of Military Justice, which is our first modern criminal code. And it exists today. It’s been updated a lot of times. Most recently, there was a major rewrite done in 2016 by Congress called the Military Justice Act 2016, and it renamed this offense, and we’re going to talk about that right now. But prior to 1 January, 2019, when those 2016 changes went into effect, there was an offense under Article 134 called adultery.

Now we have a different video, we’ll talk about Article 134 offenses, but basically 134 offenses are good order and discipline service reputation, protecting laws that basically can criminalize anything that makes the service look bad or lets good order, discipline, get hurt. And inside that statute, so we’re talking 10 USC, 9-34 is the full legal name, and you find it the US Code. That law has a paragraph in there of a recognized elements for an offense that used to be called adultery. Military Justice Act of 2016 changed the requirements of that act so that after 1January 2019, it became known as extramarital sexual conduct. But it’s the same basic idea, and here’s what it requires. So the law prior to 1 January 2019 said that it was illegal for a service member to have sexual intercourse with someone other than their wife or a married service member to have sexual intercourse with someone other, their wife. And what that basically meant was full on old school penis and vagina sexual intercourse. It didn’t extend to same sex couples, it didn’t extend to oral sex or anal sex or other types of sexual contact or sexual acts as defined by the code. And so when the Military Justice Act of 2016 was passed, they expanded this and renamed it so that it wasn’t sort of the historical common law, adultery offense. And what the new offense says is anything that is a sexual act

That is as defined in other parts of the UCMJ if it occurs with someone other than their spouse who is a married person, right? So in other words, if you are married and you have sex with someone, or a sexual act with someone other than your partner, whether you’re in a same sex marriage or a different sex marriage, or if that other person you’re having sex with is married and you are not in that marital relationship, then it can be criminal. But let’s be clear, in order for something to be a crime, all elements have to be satisfied. And under Article 134, the second element that we talk about are other video, which is what we call the terminal element, has to be met. And that means that in addition to the act happening, right, you have to have it under circumstances that are either service discrediting or prejudicial the good order of discipline.

And when they rewrote the 2019 Act, they added some language that recognizes that it’s an automatic sort of presumption of, if there’s legal separation. Now, it’s not a full automatic defense, it doesn’t negate it, but it creates a presumption of sort of an automatic claim against being prosecuted for it if you’re in a legal separation. And why is that? Because divorce takes time. I’ve done a few divorce cases, it’s not my primary practice. We don’t handle that as our primary practice here at the Law Office Of Jocelyn Stewart. But it is something that can be very lengthy and people want to move on. They want to have relationships in their lives. So people who are going through divorce who are legally separated, even if they engage in a sexual act, and again, that’s sexual intercourse, penis to vagina, anal intercourse, oral sex, or any kind of penetration sexual contact of the genitalia that normally would fall under a sex act as defined in Article 120. For example is okay even if you are legally married.

So that the rumor that goes around that’s been told for years is if you’re still legally married and you have sex with somebody else for sexual activity or a sex act with somebody other than your spouse, you are breaking a law and you are guilty of adultery. That’s not true if you are legally separated, it is a presumption that it is legal and it’s something that you can, you can raise and prove to your chain of command. But frankly, even in cases where you are not legally separated, there may be an argument where your sexual intercourse or sexual activity with a sex partner who may be married or you may be married at the time, do the totality of circumstances may create such that it’s not a crime under the UCMJ. And that’s the kind of detailed work that we can’t cover in a short video on YouTube.

But what I do recommend is if you find yourself in a situation, you’re worried that military authorities may be looking at your personal life for some reason and you need to talk to somebody about it, as I said before, don’t talk to mom, don’t talk to your buddies, don’t talk to the bases lawyer. Call a professional attorney who’s familiar with the UCMJ and and the the law and discuss it with them. And we’re happy to do those consults here at the Law Office of Jocelyn Stewart. So if that’s you, give us a call. And if that’s not you, keep in mind what I just said and use that to make good choices. Thanks.

Sean Mangan is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.

Contact the Law Office of Jocelyn C. Stewart at 253-212-958

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