The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas

• Author: Christopher Scott Maravilla
• Position: Attorney, Washington, DC; JD, 2000, Georgetown University Law Center
• Pages: 659-680

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THE OTHER DON’T ASK, DON’T TELL: ADULTERY UNDER THE UNIFORM CODE OF MILITARY JUSTICE AFTER LAWRENCE V. TEXAS

CHRISTOPHER SCOTT MARAVILLA^*

I. INTRODUCTION

The U.S. military has a long standing prohibition, punishable by court martial, against adultery committed by service members whether it is between service members of the same rank, different ranks, or with civilians.¹While the armed forces are a unique body in terms of constitutional jurisprudence and not necessarily subject to the same protections as civilians (generally with regard to the First Amendment right to free speech),²this doctrine is not absolute. The Supreme Court’s decision in Lawrence v. Texas opened the issue whether consensual sexual activity between two adults is protected under the Constitution, specifically in homosexual relationships.³The Court of Appeals for the Armed Forces in United States v. Marcum sidestepped the issue by finding that Lawrence did not apply to the specific facts in that case.⁴Subsequent military courts have misread Marcum in holding that Lawrence either: (1) is applied only on a case by case basis,⁵or (2) does not apply in the military context at all.⁶

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* Attorney, Washington, DC; JD, 2000, Georgetown University Law Center; MA, 1996, King’s College, The University of London; BA, 1994, The University of Texas at Austin; clerk to Justice J. Dale Wainwright, Supreme Court of Texas, 2003–2004; clerk to Judge Roger B. Andewelt, 2000–2001. An early version of this article was presented at a faculty colloquium at St. Mary's Law School, San Antonio, Texas in April 2008. The author wishes to thank the faculty for their insightful comments, and to Dean Reynaldo Valencia and Professor Colin Marks for making the arrangements to allow me to present to the faculty.

¹Ian Fisher, Army’s Adultery Rule Is Don’t Get Caught, N.Y. TIMES, May 17, 1997, § 1, at 1.

²Parker v. Levy, 417 U.S. 733, 743 (1974); United States v. Priest, 21 C.M.A. 564, 570 (C.M.A. 1972).

³539 U.S. 558, 578 (2003).

⁴60 M.J. 198, 207–08 (C.A.A.F. 2004).

⁵See United States v. Bart, 61 M.J. 578, 582 (N-M. Ct. Crim. App. 2005).

⁶See Marcum, 60 M.J. at 208.

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Adultery covers a wide range of conduct from one night stands, relationships with a co-worker, to long-term romantic entanglements.⁷

Adultery among members of the Armed Forces is considered common. ⁸

For example, condoms have been made available for both married and unmarried sailors going ashore.⁹There are no statistics available for the rate of adultery among members of the armed forces. There is, however, what is considered to be an informal amendment to the prohibition of adultery: “[D]o what you want, but don’t do it blatantly and don’t get caught.”¹⁰In other words, the policy is another form of “Don’t Ask, Don’t Tell.”¹¹

In interviews with soldiers stationed at Fort Bliss in El Paso, Texas, the New York Times found one soldier who said, “But everyone is human. It’s going to happen.”¹²Another married soldier spent forty dollars to spend five minutes with a prostitute in a Mexican brothel.¹³To prosecute any one of these individuals for their conduct becomes almost arbitrary. Critics also argue that the military prosecutors’ willingness to pursue charges against adulterers varies depending on the service and the commanders.¹⁴

Lawrence J. Korb of the Brookings Institute also argues that these prosecutions when they do occur are more aimed at a member of the Armed Forces already in trouble for something else.¹⁵He likens it to “getting Al Capone on income tax evasion.”¹⁶

However, as this article argues, Lawrence applies to the military, and the crime of adultery in and of itself should no longer be barred by the military because it serves to merely enforce a moral code. Rather, adultery between service members of different ranks should be brought under the

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⁷Fisher, supra note 1.

⁸ Id.

⁹Id.

¹⁰Id.

¹¹This term is more commonly used to describe the U.S. military’s policy on homosexuality. 10 U.S.C. § 654 (2006).

¹²Fisher, supra note 1.

¹³Id.

¹⁴Id.

¹⁵Id.

¹⁶Id.

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prohibition against fraternization.¹⁷While this article does not reach “Don’t ask, Don’t tell,” many of the arguments presented resonate with that issue. This article will: (1) discuss the military’s criminalization of adultery in light of Lawrence and Marcum, (2) argue that this prohibition serves only to enforce a moral code, and (3) that such prosecutions should be brought as fraternization, not adultery.

II.

The prohibition against adultery arises from British military ethos which was influenced by Christian views on sexuality.¹⁸The Amendments of 1677 to the Articles of War, including Article 37, made adultery and fornication crimes punishable by expulsion from the army or as decided by court martial.¹⁹During Victorian times, it was a violation of Standing Orders to enter the accommodations of the opposite sex.²⁰Sexual

intercourse between unmarried soldiers, both heterosexual and homosexual, was also forbidden in military accommodations.²¹The guards would routinely search the accommodations of single soldiers to ensure such activity did not occur.²²

During the Revolutionary War, the Colonies adopted the British Articles of War adopting all of the same punitive measures.²³In June,

1775, the Second Continental Congress enacted the Articles of War for the Continental Army.²⁴Later, the military became governed by statutes designated as the “Articles of War” for the Army and the “Articles for Government of the Navy.”²⁵Both of these maintained the previous prohibitions on adultery.²⁶In May 1950, Congress enacted the Uniform

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¹⁷As discussed in this article, Lawrence may also not apply in this context because the issue of consent may not be as clear when one of the parties is a commanding officer. See infra notes 164–181 and accompanying text.

¹⁸Stephen Deakin, British Military Ethos and Christianity, BRIT. ARMY REV., Winter

2005, at 97, 97, 101.

¹⁹Id. at 101.

²⁰Id.

²¹Id.

²²Id. at 101–02.

²³EDWARD M. BYRNE, MILITARY LAW 7–8 (2d ed. 1976).

²⁴Id. at 8.

²⁵Id. at 5, 8.

²⁶See MICHAEL J. DAVIDSON, A GUIDE TO MILITARY CRIMINAL LAW 87 (1999).

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Code of Military Justice (UCMJ),²⁷which went into effect the following year,²⁸and made adultery a felony.

The UCMJ, however, does not explicitly use the term adultery. Prosecutions are brought, instead, pursuant to the general article, Article 134,²⁹along with paragraph 62 of the Manual for Courts Martial (MCM).³⁰Article 134 prohibits “all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces.”³¹The elements for a violation of Article 134 for adultery include:

(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.³²

A violation of Article 134 carries a maximum penalty of “[d]ishonorable discharge, forfeiture of pay and allowances, and confinement for [one] year.”³³

In 1998, a committee appointed by then Secretary of Defense William
S. Cohen proposed to change the MCM to reduce prosecutions of adultery and provide commanders guidelines for an appropriate determination of whether the adultery in question violated Article 134.³⁴The proposed new rules kept adultery as a crime under the UCMJ, but recommended prosecutions only be brought when the adultery interfered with the _______________________________________________________

²⁷Act of May 5, 1950, Pub. L. No. 81-506, 64 Stat. 107 (codified as amended at 10 U.S.C. §§ 801–946 (2006)).

²⁸BYRNE, supra note 23, at 9.

²⁹Uniform Code of Military Justice art. 134, 10 U.S.C. § 934 (2006).

³⁰MANUAL FOR COURTS-MARTIAL UNITED STATES ¶ 62 (2008 ed.), available at http://www.jag.navy.mil/documents/mcm2008.pdf [hereinafter MCM].

³¹Uniform Code of Military Justice art. 134, 10 U.S.C. § 934.

³²MCM, supra note 30, ¶ 62(b)(1)–(3).

³³Id. ¶ 62(e).

³⁴Steven Lee Meyers, Military Weighing Changes in Policy Toward Adultery, N.Y. TIMES, July 19, 1998, § 1, at 1.

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operation of the military or disrupted unit morale.³⁵However, the guidelines were not officially approved until 2002 when President George
W. Bush issued an Executive Order incorporating some of the Cohen committee proposals into the MCM.³⁶Paragraph 62 of the MCM is now accompanied by a detailed explanation of its application to Article 134 of the UCMJ:

(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...