Adultery

While adultery is still a criminal offense under the UCMJ, this Art. 134 offense was recently broadened to cover “extramarital sexual conduct.” However, there is now an affirmative defense to the conduct if the married parties were legally separated. To be clear, if both parties are married, each must be legally separated.

Extramarital sexual conduct not only includes the previous definition of adultery, i.e., genital to genital conduct, but now includes various other sex acts. The extramarital sexual conduct must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. Factors to consider are:

• 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 the co-actor, or their relationship to the armed forces
• 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
• The misuse, if any, of Government time and resources to facilitate the commission of the conduct
• 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
• 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;
• Whether the accused’s or co-actors’ 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
• Whether the extramarital conduct involves an ongoing or recent relationship or is remote in time.

In the typical case, extramarital sexual conduct may be added to other charges, such as sexual assault, or it may stand alone as the only charge. Regardless, it is imperative to have an experienced military attorney such as Mr. Karns examine the government’s evidence against you, including the statements of its witnesses. Many times, the government has relied upon witnesses who may have personal biases against you, or whose credibility is otherwise tainted. As an experienced military attorney, Mr. Karns can help you defend yourself against the charges by developing evidence and witnesses for your side of the case, as well as discrediting the evidence and witnesses being used against you.

If you are charged with adultery, you may be the subject of administrative action or a court-martial. The consequences of either process can be grave. You may be administratively separated, and if not, you may receive a letter of reprimand which could end your career. If you are court-martialed, you could receive jail time, a punitive discharge, reduction in rank, a possible federal conviction and/or the denial of benefits and future employment opportunities. Regardless of the process, Mr. Karns can employ the evidence for your side of the case in an attempt to resolve it in a manner most favorable to you.

If you have been accused or charged with extramarital sexual conduct, the representation of an experienced military attorney such as Mr. Karns is strongly recommended.