Joseph Jordan is a military defense lawyer who aggressively represents service members in courts martial. He is a former Army Judge Advocate. He has successfully defended service members in numerous courts martial against sodomy charges.
Adultery is a violation of Article 134 of the Uniform Code of Military Justice (UCMJ). To convict you of adultery, the prosecutor must prove that (1) you had sexual intercourse with another person; (2) that you or the other person was married to another person; and (3) that your conduct was service discrediting or prejudicial to good order and discipline in the armed forces.
Sexual intercourse is any penetration, however slight, of the female sex organ by the penis. An ejaculation is not necessary for sexual intercourse to have occurred. Adultery does not include oral sex, anal sex, or other intimate acts. The UCMJ does not recognize same-sex intercourse as adultery.
The prosecutor must also prove that the conduct prejudicial to good order and discipline, which means that the adultery had an obvious and measurable effect on morale, discipline, or unit cohesion or had a detrimental impact on the authority or esteem of a service member. Or the prosecutor must prove that the adultery was service discrediting, meaning that because of the open and notorious nature of the allegation, it lowered the service in the public esteem, brought the service into disrepute or made it subject to public ridicule.
There are a variety of factors that can be considered in determining whether the adultery was service discrediting or prejudicial to good order and discipline, including if government time or resources were used, the impact of the mission, and the military rank and status of both parties to the adultery, as well as the rank and status of their spouses.
Adultery is a serious charge. Servicemembers convicted of adultery may face up to one year in prison, a dishonorable discharge and reduction to E-1.