Are military spouses subject to the UCMJ

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If you are legally separated and start dating in the military, can you get into adultery trouble? This is a common question for people in uniform because the legal divorce process can take months or even years and the answer is complicated. Given the ambiguity of the terms of the Uniform Code of Military Justice (UCMJ), there is always a potential for criminal liability and the only 100 percent safe course of action is to wait for a court to grant you a divorce before committing to it. a sexual relationship.

The military's prohibition of adultery is set out in Article 134 of the Uniform Code of Military Justice, which designates adultery as a crime when legal criteria known as "elements" are all met. There are three specific elements:

Adultery and Article 134 of the UCMJ: Elements

(1) That the defendant wrongly had sexual intercourse with a certain person;

(2) That the defendant or other person was married to someone else at the time; and

(3) That, under the circumstances, the defendant's conduct was to prejudice the good order and discipline in the armed forces or the nature to discredit the armed forces.

The first two elements are self-explanatory; the third is more complex. The "Declaration" section of Article 134 identifies several factors military commanders should consider, including whether the soldier or his sexual partner were "legally segregated". "A legal separation involves a signed formal separation agreement issued with a spouse or a court of separation arranged by the state.

The legal separation takes into account whether a sexual relationship violates Article 134. However, this is not the only consideration. In article 134 "Explanations" further factors are mentioned for the commanders:

  • The rank and position of the parties involved
  • The impact on the military unit
  • The potential abuse of government time or resources to facilitate the prohibited conduct> Whether the adulterous act was accompanied by other UCMJ violations
  • Adultery and Article 134 of the UCMJ: Explanation

(1) Type of offense. Adultery is clearly unacceptable behavior that negatively affects the military member's tenure.

(2) Acts that harm good order and discipline or harm nature in order to discredit the armed forces. To establish a crime under the UCMJ, the adulterous behavior must discredit either directly good order and discipline or the service. Adulterous conduct that is directly adverse includes behavior that has an apparent and measurably divisive effect on the discipline or morality or cohesion of units or organizations, or that is clearly detrimental to the authority or stature or respect of a soldier. Adultery can also be a discrediting of the service, although the behavior only indirectly or remotely harms order and discipline. Discredit means violating the reputation of the armed forces and includes adulterous behavior which, due to its overt or infamous nature, tends to discredit the service, subject it to public ridicule, or bring it down in public. While adulterous behavior that is private and discreet in nature cannot be discredited by this norm, in the circumstances it can be viewed as behavior that is detrimental to good order and discipline.

Commanders should consider all relevant circumstances, including but not limited to the following factors, in determining whether adulterous acts may harm order and discipline or discredit the armed forces:

The accused's marital status, military rank, grade or position;

(b) Marital status, military rank, grade and position of the co-actor or relationship with the armed forces;

(c) the military status of the accused's spouse or spouse of a co-actor or their relationship with the armed forces;

d) any impact of the adulterous relationship on the ability of the accused, the co-author, or the spouse of both to perform their duties in support of the armed forces;

(e) The abuse, if any, of government time and resources to facilitate the conduct of the conduct;

(f) whether the behavior persisted despite advice or a request; the insolence of the behavior, for example whether any notoriety followed; and whether the adulterous act was accompanied by other UCMJ transgressions;

g) the negative effects of the behavior on the units or organizations of the accused, the contributor or the spouse of either party, such as an adverse effect on the morale of the organization or organization, teamwork and efficiency;

h) whether the accused or the contributor was legally separate; and

(i) whether the adulterous misconduct involves an ongoing or recent relationship, or is distant in time.

(3) Marriage: A marriage exists until it is dissolved under the laws of a competent state or foreign jurisdiction.

(4) Failure of fact: A defense of factual error exists if the accused had an honest and reasonable belief that either the accused and the teammate were both unmarried or they were legally married to one another. When this defense is provoked by evidence, the burden of proof rests on the United States to determine that the defendant's belief was unreasonable or dishonest. "