The complete Uniform Code of Military Justice Manual for
Courts-Martial, United States (prior to the amendments mentioned
below) is available online from the U.S. Army Publishing Agency. (This
document is more than 800 pages in length, and will take a while to
download.)
U.S. Army Publishing Agency: Manual for Courts-Martial, United States
http://www.usapa.army.mil/pdffiles/mcm2000.pdf
The Manual for Courts-Martial, United States was amended earlier this
year. The full text of the April 1, 2002 amendments may be found here:
Defense Link, U.S. Department of Defense: 2002 Amendments to the
Manual for Courts-Martial, United States
http://www.defenselink.mil/dodgc/lrs/docs/EO13262.pdf
The two files linked above are in .pdf format. You will need to have
Adobe Acrobat reader software installed on your computer in order to
view .pdf files. If you do not already have this software, a free
download is available here:
http://www.adobe.com/products/acrobat/readstep2.html
Regarding your specific question, marital infidelity is a violation of
Article 134 of the UCMJ, as detailed below.
Section 5, Part IV, Paragraph 62c of the Manuals for Courts-Martial,
United States (2002 Edition) now reads as follows:
Section IV.
Paragraph 62. Article 134 (Adultery)
a. Text See paragraph 60.
b. Elements.
(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.
c. Explanation.
(1) Nature of offense. Adultery is clearly unacceptable conduct, and
it reflects adversely on the service record of the military member.
(2) Conduct prejudicial to good order and discipline or of a nature to
bring discredit upon the armed forces. To constitute an offense under
the UCMJ, the adulterous conduct must either be directly prejudicial
to good order and discipline or service discrediting. Adulterous
conduct that is directly prejudicial includes conduct that has an
obvious, and measurably divisive effect on unit or organization
discipline, morale, or cohesion, or is clearly detrimental to the
authority or stature of or respect toward a servicemember. Adultery
may also be service discrediting, even though the conduct is only
indirectly or remotely prejudicial to good order and discipline.
Discredit means to injure the reputation of the armed forces and
includes adulterous conduct that has a tendency, because of its open
or notorious nature, to bring the service into disrepute, make it
subject to public ridicule, or lower it in public esteem. While
adulterous conduct that is private and discreet in nature may not be
service discrediting by this standard, under the circumstances, it may
be determined to be conduct prejudicial to good order and discipline.
Commanders should consider all relevant circumstances, including but
not limited to the following factors, when determining whether
adulterous acts are prejudicial to good order and discipline or are of
a nature to bring discredit upon the armed forces:
(a) The accused's marital status, military rank, grade, or position;
(b) The co-actor's marital status, military rank, grade, and position,
or relationship to the armed forces;
(c) The military status of the accused's spouse or the spouse of
co-actor, or their relationship to the armed forces;
(d) 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;
(e) The misuse, if any, of government time and resources to facilitate
the commission of the conduct;
(f) 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;
(g) 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;
(h) Whether the accused or co-actor was legally separated; and
(i) Whether the adulterous misconduct involves an ongoing or recent
relationship or is remote in time.
(3) Marriage. A marriage exists until it is dissolved in accordance
with the laws of a competent state or foreign jurisdiction.
(4) Mistake of fact. A defense of mistake of fact exists if the
accused had an honest and reasonable belief either that the accused
and the co-actor were both unmarried, or that they were lawfully
married to each other. If this defense is raised by the evidence, then
the burden of proof is upon the United States to establish that the
accused's belief was unreasonable or not honest.
d. Lesser included offense. Article 80-attempts. Adultery is not a
lesser included offense of rape.
e. Maximum punishment. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 1 year.
Add the following subparagraph to the analysis of Article 134
(Adultery) found at appendix 23, page A23-16 of the MCM.
c. Explanation.
(1) Subparagraph (3) is based on United States v. Poole, 39 M.J. 819
(A.C.M.R. 1994). Subparagraph (4) is based on United States v.
Fogarty, 35 M.J. 885 (A.C.M.R. 1992); Military Judges’ Benchbook, DA
PAM 27-9, paragraph 3-62-1 and 5-11-2 ( 30 Sep. 1996). See R.C.M.
916(j) and (l)(1) for a general discussion of mistake of fact and
ignorance, which cannot be based on a negligent failure to discover
the true facts. Subparagraph (2) is based on United States v. Snyder,
4 C.M.R. 15 (1952); United States v. Ruiz, 46 M.J. 503
(A.F.Ct.Crim.App. 1997); United States v. Green, 39 M.J. 606 (A.C.M.R.
1994); United States v. Collier, 36 M.J. 501 (A.F.C.M.R. 1992); United
States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991); United States v.
Linnear, 16 M.J. 628 (A.F.C.M.R. 1983); Part IV, paragraph 60c(2)(a)
of MCM.
(2) When determining whether adulterous acts constitute the offense of
adultery under Article 134, commanders should consider the listed
factors. Each commander has discretion to dispose of offenses by
members of the command. As with any alleged offense, however, under
R.C.M. 306(b) commanders should dispose of an allegation of adultery
at the lowest appropriate level. As the R.C.M. 306(b) discussion
states, many factors must be taken into consideration and balanced,
including, to the extent practicable, the nature of the offense, any
mitigating or extenuating circumstances, the character and military
service of the military member, any recommendations made by
subordinate commanders, the interests of justice, military exigencies,
and the effect of the decision on the military member and the command.
The goal should be a disposition that is warranted, appropriate, and
fair. In the case of officers, also consult the explanation to
paragraph 59 in deciding how to dispose of an allegation of adultery.
(NOTE: Paragraphs 59 and 60, referred to above, may be found under
Section IV, Article 134 of the complete UCMJ, which can be accessed
through the first link in my answer.)
Whitehouse.gov: 2002 Amendments to the Manual for Courts-Martial,
United States
http://www.whitehouse.gov/news/releases/2002/04/20020412-4.html
About.com, US Military: Military Adultery
http://usmilitary.about.com/library/milinfo/bladulterydefinition.htm
My search strategy in locating this information included various
combinations of keywords "ucmj," "uniform code of military justice,"
"adultery," and "infidelity."
Please keep in mind that Google Answers is not a source of
authoritative legal advice. The data I have provided here is for
informational purposes, and should not be regarded as a substitute for
qualified legal counsel.
I hope this has been helpful. If anything in my answer is unclear, or
if any of the links do not function, please do not hesitate to ask for
clarification.
Best regards,
pinkfreud |
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