The Joint Service Committee on Military Justice (JSC) has released new supplementary material for the Manual for Courts-Martial (MCM) that could have a significant effect on Article 134 trials. The new publication dictates how certain sexual offenses should be considered and recorded in court.

For example, the new material clarifies how the Article 134 offense of adultery should be defined by the court. While extramarital sexual activity is a chargeable offense, the new addition to Appendix 23 notes that the sexual activity itself is not to be considered criminal.

"The offense of adultery is intended to prohibit extramarital sexual behavior that directly affects the discipline of the armed forces, respect for the chain of command, or maintenance of unit cohesion," Appendix 23 reads. "This provision should not be interpreted to criminalize sexual practices between two adults with full and mutual consent from each other, but rather, to punish the collateral negative effects of extramarital sexual activity when there exists a genuine nexus between that activity and the efficiency and effectiveness of the armed forces."


There is also an addition to Appendix 23 that dictates that when charging multiple clauses in an Article 134 offense, both the court record should use the word "and" and not "or" to separate them. This is known as charging in the disjunctive (“or”) or charging in the conjunctive (“and”). The purpose of this seemingly minor change is actually significant: it clarifies the record as to whether or not each clause was proven beyond a reasonable doubt—rather than ambiguously grouping all of the theories of guilt together with “or.”

"At findings, the Trial Counsel or Military Judge must make certain that the record is clear as to whether the trier of fact found that clause 1, clause 2, or both clauses were proven beyond a reasonable doubt," Appendix 23 now reads. "Using the word 'and' to separate clauses 1 and 2 in the terminal element allows the trier of fact to except the unproven clause from the specification. This approach forces intellectual rigor in analyzing each clause as distinct and separate."

CAAFlog.com recently addressed the wider issue of charging in the disjunctive rather than the conjunctive. They use United States v. Lesley as an example of when a defendant was convicted of “knowingly and wrongfully possessing child pornography, to wit: digital videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct.” That “or” meant that, on appeal, the convicted defendant in this case was able to argue for a lesser sentence under the assumption that pornographic material only featured “what appeared to be minor.” This was possible because prosecutors did not charge in the conjunctive (using “and”), which would have included all circumstances listed in the charge for later, separate assessment by the court. The new Appendix 23 encourages this use of charging in the conjunctive to add a much needed level of accuracy to court-martial procedure.

If you are a military Servicemember who has been accused of a criminal act, then it is crucial that you have defense counsel that is familiar with the military justice system. Joseph L. Jordan, Attorney at Law is 10+ year veteran of the U.S. Army who now defends the rights and interests of accused members of our armed forces stationed all over the world.

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