The Uniform Code of Military Justice (UCMJ) defines a long list of expectations, rules, and regulations regarding the conduct and duty of U.S. military service members. In many cases, the prohibited behaviors outlined in the UCMJ align with civilian law. For instance, crimes such as rape, drug use, and drunken operation of a vehicle are illegal whether you’re a civilian or service member.

However, many other UCMJ violations are technically not illegal under civilian law. For instance, adultery is unlawful in only 17 states as of 2021, and prosecuting it is practically unheard of. Still, having an affair is punishable under Article 134 of the UCMJ—but only if it degrades the “good order and discipline” within a military unit or “brings discredit upon” the armed forces.

Adultery in the Military

The notion of enforcing rules about the consensual sexual conduct of military members may seem outdated, but the military criminalizes adultery for two reasons:

• To reduce the distraction, potential loss of trust and morale, and decline in fighting efficiency that often ensues when an affair happens
• To reinforce the leaders’ moral stature among those whom they lead and whose lives they risk

In decades past, service members could be prosecuted and disciplined for adultery whether or not the incident was directly tied to a breakdown of good order and discipline. Commanders also once had a very different definition of adultery.

The UCMJ took effect in 1951, with numerous updates in the proceeding decades. By 2012, the rule regarding adultery read as follows:

“Article 134 of the Uniform Code of Military Justice makes criminal the act of adultery when certain legal criteria, known as ‘elements,’ have been met.”

These elements include:

1. The service member had sexual intercourse with someone.
2. The service member or their sexual partner was married to someone else at the time.
3. Under the circumstances, the conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.

The third element is the key to punishing a service member for cheating on their spouse in the modern era. It means the conduct itself is not punishable simply because it occurred—it must disrupt the military unit in some way.

Proving Element No. 3 of an Adultery Charge

To convict a service member of adultery, the prosecutor must successfully demonstrate one of the following:

• The adulterous act had an obvious and measurable effect on morale, discipline, or unit cohesion.
• The act had a detrimental impact on the authority or esteem of a service member.
• Government time or resources were misused to facilitate the act.
• The act impacted the military’s mission.
• Because of its open and notorious nature, the allegation lowered the service in the public esteem, brought the service into disrepute, or made the service subject to public ridicule.

The military rank and status of both parties involved, as well as the rank and status of their spouses, also come into play. Another consideration is whether other UCMJ violations accompanied the adulterous act.

Recent Changes to Adultery Offenses

In 2016, Congress passed the Military Justice Act. This act reorganized aspects of the UCMJ, including what legally constitutes adultery in the military and under what circumstances it can be punished. The changes took effect by the time the 2019 Manual for Courts-Martial was written. The new rules include:

• Rebranding: The UCMJ doesn’t use the term “adultery” anymore. The formal charge is now called “extramarital sexual conduct.”
• Redefinition: In the past, adultery was defined as sexual intercourse between a man and a woman—specifically, the type needed to produce offspring. Now, extramarital sexual conduct includes any sexual contact, including oral and anal penetration.
• Gender neutrality: Previously, the military did not recognize same-sex intercourse as adultery. Now, the act is punishable on a gender-neutral basis independent of sexual orientation.
• Legal separation defense: The revised UCMJ permits a defense that was not previously allowed. It states that if a couple is in the process of legally dissolving their marriage when the “adultery” occurs, they may be able to use their legal separation as a defense.

Adultery During Legal Separation

A married couple is considered legally separated once they sign a formal separation agreement or the state court issues an order of separation. A formal separation agreement is a written contract between a husband and wife that resolves the legal issues of ending their marriage, such as property division, spousal support, child support, and child custody. This document often becomes part of the final divorce granted by the court, and the act of signing it usually signifies a major step toward dissolving the marriage.

Because of the legal ramifications of being legally separated, this is an important consideration in deciding whether a sexual relationship violates the UCMJ. However, using legal separation as a defense has its limits. To be successful, it must apply to both parties. If one sexual partner is legally separated, but the other is still married, the defense falls short.

Also, due to the ambiguity of proving the third element of an adultery charge, the potential for criminal liability remains if a service member takes on a new sexual partner while still married, even if they are legally separated. The only surefire course of action under the UCMJ is to wait until the divorce has been finalized.

Punishments for Adultery Under the UCMJ

Adultery is a serious charge. If convicted, the maximum punishment service members may face include:

• Dishonorable discharge
• Forfeiture of all pay and allowances
• Confinement for up to one year

However, depending on the circumstances surrounding the incident, service members found guilty of adultery are more likely to face milder sentences, such as:

• Administrative disciplinary action
• Administrative separation
• Reduction in rank
• Partial forfeiture of pay
• Another type of punitive discharge besides dishonorable

Defend Yourself Against Adultery Charges

While the information here provides a general framework for examining adultery in the military, every situation is unique. If you have questions about your specific circumstances, it’s best to speak to a military defense attorney.

Joseph L. Jordan, Attorney at Law, has a successful track record defending service members against UCMJ violations of all kinds, including adultery. If you have been accused of extramarital sexual conduct, trust our experienced and knowledgeable team to defend you. We bring a global perspective to every case we represent, making us highly equipped to handle your complex situation. To speak directly with Mr. Jordan about the charges brought against you, please contact us toll-free at 800-580-8034 or 254-221-6411.