Good news! Adultery no longer exists in the military. Well, okay, they renamed it “extramarital sexual conduct” in the latest revisions to the Uniform Code of Military Justice (UCMJ), but still, it doesn’t say adultery! Performing the Poking Polka is still illegal and likely to get you in a whole lot of trouble, but only under some very specific circumstances.

Page 452

The UCMJ is 772 densely packed pages. Article 134 is a section dedicated to

“all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital …”

Page 452, Section 99 recently replaced “adultery” with “extramarital sexual conduct” and reads in part:

“(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.”

Proving Adultery in the Military

The first element requires a military lawyer to prove to the court martial that, for example, you as a Master Gunnery Sergeant had sex (one of four very specific kinds of sex; more on that later) with an identifiable person revealed to the court.

The second element requires a JAG attorney to prove that either you, MGySgt John Doe, knew you were married (okay, that’s not a particularly high bar) or the person (male or female) you were schtupping was married at the time you met at the Mattress Merengue Motel.

The third element requires the military attorney to prove that your hanky-panky messed with morale, destroyed discipline, or ruined readiness in your unit.

Affirmative Defense

The law politely includes a ready-made affirmative defense your attorney can deploy to get out from under this legal nightmare:

“(4) Legal Separation. It is 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.”

Under the Circumstances

The third element even includes three magical words, “under the circumstances,” that give commanding officers several off-ramps before taking a matter to the JAG. Your naughty nature has to discredit the service not just by your commander’s hunch, but by “an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion.”

In addition, your commander can consider a list of circumstances influencing the whole process, including but not limited to both parties’ marital status, military rank, grade, position, or relationship to the armed forces, and the status of both spouses.

Your commander must also consider (and notice the hint-hint here), “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.” 

Two more ways for your commander to make it go away:

  1. Did you misuse government time or resources, or were you paying your own way at the Half-Hour Happy Hotel, off base?
  2. Did you get counseling or receive an order to stop the extramarital sexual misconduct?

Don’t get us wrong; the law is applied and has force: the penalty for being found guilty in a court martial is

“Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.”

What is Considered Extramarital Sexual Conduct?

Under Article 134, Section 99, the U.S. government and U.S. military define extramarital sexual 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.”

So, some types of hokey-pokey — we’ll call them “hand-to-hand combat” —  are okey-dokey, but the four [highly detailed and specific] types are off limits. Not to mention they are extremely likely to result in a sexually transmitted disease (STD). That issue alone helps the government prove the third element: spreading an STD definitely hinders a unit’s readiness.

Have You Been Accused of Adultery?

Despite the considerable barriers to indicting, trying and convicting a service member of extramarital sexual conduct, it does still happen. If you stand accused by your commanding officer of extramarital sexual conduct, you need a good family law attorney. You do not need to accept an attorney from the JAG. Join with an attorney experienced in military and family law. Contact us online at The Firm For Men or telephone our office at (757) 383-9184 today.