UCMJ Article 134 Extramarital Sexual Conduct

UCMJ Article Extramarital Sexual Conduct, previously known as an offense in the military referred to as adultery, is not illegal in most civilian courts. While this conduct is difficult to process and prove in a military court of law, it is a chargeable offense for service members. If a service member is charged and convicted of extramarital sexual conduct, that service member may be fined, discharged and can possibly get jail time. The consequences of this offense are similar to the adultery consequences of the earlier Manual for Courts Martial. Infidelity comes with its own personal consequences, but infidelity in the military can cost a service member their career.

The Manual for Courts-Martial 2019 says that the definition of extramarital sexual conduct is consistent with the definition of sexually explicit conduct under 18 U.S.C. §2256 (2) (A) (i) and is gender neutral. To constitute an offense under the UCMJ the extra marital conduct must be “conduct prejudicial to good order and discipline or of a nature to bring discredit upon the armed services.”  Military prosecutors typically charge extramarital sexual conduct as an add-on charge to some other offense such as rape or sexual assault.  Extramarital sexual conduct is not normally brought to a court-martial if that is the only misconduct alleged. Some experts view extramarital sexual conduct as an outdated offense. Regardless, infidelity is still considered misconduct by the command because it is considered prejudicial to good order and discipline in the ranks.

Punitive Elements for Extramarital Sexual Conduct Defined by the UCMJ

The punitive elements for this offense are the following:

(1) That the accused wrongfully engaged in extramarital sexual conduct as described in subparagraph c. (2) 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 either (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

What do commanders consider when deciding whether to charge a service member with UCMJ Article 134 Extramarital Sexual Conduct?

A commander will consider whether to charge this offense, previously known as adultery, if the conduct meets certain elements. In general, commanders consider if the conduct allegedly committed is prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. They will also take into consideration the accused’s marital status, military rank, grade, or position and the the co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces. Commanders may also consider the  military status of the accused’s spouse or the spouse of co-actor, or their relationship to the armed forces. Commanders are also responsible for safeguarding government resources so they will consider any misuse of government time and resources to facilitate the accused’s misconduct. There have been incidents where Soldiers were charged with fraud when spending government resources to fund adultery behavior.

Commanders will also also consider the following in deciding whether to charge: whether the accused or co-actor was legally separated; whether accused continued with the illegal behavior despite being counsel or ordered to stop; and whether the misconduct involves an ongoing or recent relationship or happened long before.

If you are legally separated and begin dating while in the military, can you get in trouble for extramarital sexual conduct or adultery? 

Commanders will consider if a service member is legally married and whether the accused is legally separated from their spouse as confirmed by a court of law. The updated MCM 2019 defines the affirmative defenses available to those participants who are: legally separated or believed by the participants to be legally separated or not married.

What are the UMCJ Article 134 Extramarital Sexual Conduct Consequences?

UMCJ Article 134 Extramarital Sexual Conduct consequences, like previous-listed adultery consequences, are rather severe compared to the misdemeanor fines of some civilian courts for committing adultery or being found guilty of infidelity. The maximum punishment according to Article 134 Extramarital Sexual Conduct is a Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for one year.

For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s case, consult with an experienced military lawyer.