Can a member of the military be court-martialed for adultery if he or she is legally separated?
With so many marriages dissolving in society in general, it is not surprising that this is also true in the military. A common concern among military personnel is whether a person who is legally separated can nonetheless be accused of adultery. Because the legal process of divorce can be prolonged, sometimes for years, this is a significant question. Unfortunately, the answer to the question is complex.
Elements of Military Prohibition of Adultery
According to Article 134 of the Uniform Code of Military Justice (UCMJ), there are three elements that constitute a criminal act of adultery:
- Sexual intercourse must have taken place
- Either the soldier or the sexual partner was married at the time
- The conduct of the soldier was an affront to military order and discipline or was of a nature to bring discredit to the armed forces
While the first two elements are straightforward, the third involves a certain amount of ambiguity. Legal separation, meaning that a formal separation agreement has been signed by both spouses, or issued by a state court, usually includes decisions of the parties on issues such as property division, debt, support, and child custody
Separation agreements are usually drafted by an attorney. For members of the military attorneys are available at the Office of the Staff Judge Advocate (JAG), and the resulting separation agreements typically become part of the final divorce papers. Since being “legally separated” is a major step toward divorce, being legally separated is considered important in defining whether a sexual relationship violates Article 134. It is not, however, the only consideration.
Factors Affecting the Third Element
Several factors are taken into consideration when the military weighs whether military order and discipline has been threatened by the sexual relationship in question. These include:
- Rank and position of the parties involved
- Impact on the military unit
- Whether government time or resources were used to facilitate the conduct
- Whether the conduct violated other aspects of the UCMJ
Members of the military should be aware that because there is personal judgment inherent in the third element defining criminality in terms of adultery, there is always a potential for criminal liability in such a relationship. Unless you are actually legally divorced, there remains a chance that you can be court-martialed for an adulterous liaison.
If you are, or are about to become, involved in a sexual relationship while serving in the military, it is best to be certain that you are not opening yourself to the possibility of court-martial because one of the parties is still legally married. You should consult with an attorney who specializes in court-martial cases to best protect yourself from prosecution.