3 Elements of Adultery under Article 134 | AskTOP.net - Leader Development for Army Professionals
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3 Elements of Adultery under Article 134

Adultery is a crime punishable under Article 134, UCMJ.  There are three elements that must be met to prove adultery existed.  They are:

(1) That the accused wrongfully had sexual intercourse 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 to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

The first element is the hardest to prove.  The reason being is that the physical act of  intercourse has to be proven.  Unless there is a video, credible witnesses of the couple in the act, or some other concrete evidence, a confession by one of the two parties is normally the only way to prove adultery.  This does happen on occasion, but normally neither party will confess.

The second element is that the offending Soldier is either married or he/she knows the other person was married.  If the Soldier legitimately did not know the other person was married, then adultery did not occur.

The third element is the easiest of the three.  The Commander has to determine that the conduct was prejudicial to good order and discipline.  The fact that the Soldier was having an affair with another Soldier’s spouse meets that criteria if it is known by other Soldiers in the unit.

Even if intercourse can not be proven, then there are other actions that can be taken. The Soldier who’s wife is having the affair can approach the command with their concerns.  If the 1SG/Commander determine their concerns are legitimate, then the commander can counsel the offending Soldier on inappropriate relationships and give the Soldier a no-contact order for the other Soldier’s spouse.  Should the offending Soldier violate the no-contact order that Soldier can be punished under Article 90, UCMJ for willfully disobeying a superior commissioned officer.

In any event, if the offending Soldier is spoken to about the situation, who ever counsels him/her should ensure the Soldier’s rights are not violated and he/she is read their rights using DA Form 3881, Right Advisement.  If this step is skipped, any information/confession  the Soldier may provide could be thrown out as evidence for UCMJ or courts-martial proceedings.

I hope you found this information useful.

“The views presented by the author are his own and do not necessarily represent the views of the DoD or its Components.”

Disclaimer: I am not an attorney and any views presented are my own and are not to be
interpreted as legal advice. Furthermore, my views do not necessarily
represent the views of DoD or its Components.

posted on 03/06/2013 under Articles
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Staff Sergeant(R) Douglas “Eck” Eckstein is a former Paralegal NCO with over eleven years of service in the Army. He has served overseas tours in Korea and Iraq. Eck served on active duty for seven years working in the personnel administration field then, after a break in service, returned to active duty in 2009 when he earned the Military Occupational Specialty, 27D (paralegal). He has worked in the Office of the Staff Judge Advocate from Division level down to unit level. He has expertise in all aspects of military law, with extensive emphasis in Administrative Law and Soldiers Rights. “I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.”

Disclaimer: Though all content posted on AskTOP.net is reviewed by our qualified subject matter experts, you should not make decisions based solely on the information contained in this post. Use information from multiple sources when making important professional decisions. This is not an official government website.

Counsel Quick

    Comments

  • Jones

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    Can a Soldier’s AA flag be lifted a month prior to receiving an article 15 demoting him from e-5 to e-4?

  • Frank E

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    So let’s say a E5 has been separated from his spouse for 1 1/2 yrs. After he was separated for 14 months he gets a civilian girlfriend. His [ex]spouse continues to delay the divorce and he really can’t afford to pay for a lengthy court case. They have almost completed the paperwork for an uncontested divorce. In your opinion what course would command take?

    • Eck

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      Adultery is one of the hardest charges to prove. To prove adultery there has to be proof of sexual intercourse. Unless there is video evidence, a witness to the act of intercourse, or one of the two parties admit to having intercourse, then adultery is extremely difficult to prove and most commands will not pursue the charge. The main reason adultery charges are pursued is because the relationship causes unwanted attention to the unit. If the relationship with the “girlfriend” is low key and the E5 has not been counseled to end the relationship, then the command will probably not really care. However, the command can bring charges should they choose to. Up until the divorce is finalized in court, the E5 is still at risk for adultery charges. Unless of course, the E5 and the girlfriend have not had sexual intercourse. If that is the case, then no adultery has been committed and they are just friends.

      I hope this helps.
      Eck

  • Anonymous

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    In my experience no one is ever actually reprimanded for this sort of behavior. I didn’t find out that the father of my son was married until I was already pregnant. Then I find out my son is the 2nd child he conceived with someone other than his wife by lying about being married. Not only has the military done absolutely nothing, but they just continue to promote him! Sad that he is doing things like this to women and children and then just continues to have his ego stroked by wearing the uniform and being praised for being such a “hero”. Gives every service member a bad name!

  • Jack

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    I have a soldier who claims to know a soldier in your same unit has committed adultery wife his wife. It was brought up through our chain of command and it pretty much stopped at the fact that the soldier who commited the adultery is ETSing so they pretty much dropped it. Now the soldier feels as if his leadership let him down..Which I totally agree. What can I do as his NCO to justify this whole situation?

  • Anonymous

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    I was with a soldier and he told me he was getting a divorce. He even got me involved in his child life. His wife new about us and so did his soldier friends. I have proof and witness to us being together. I came home from vacation and he told me his commander called him in and told him to do the right thing. He told me he had to think of his son. Well he kicked me out and one week later he said he loved his wife and never to contact him again. I feel he needs to be held accountable for his actions cause I know he is only doing it for the money. Should I contact his commander?

  • anonymous

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    How does a civilian have charges filed against a military individual for committing adultery with the civilians spouse and being the cause of a pending divorce?

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