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Article 134 UCMJ Extramarital Sexual Conduct – Adultery

Note: This law applies only to Article 134 UCMJ Extramarital Sexual Conduct – Adultery offenses committed on and after 1 January 2019.

What is Article 134 UCMJ Extramarital Sexual Conduct – Adultery?

Article 134 UCMJ Extramarital Sexual Conduct – Adultery

Article 134 UCMJ Extramarital Sexual Conduct – Adultery addresses extramarital sexual conduct, commonly referred to as adultery. This offense involves engaging in sexual relations with someone other than one’s spouse. It is considered prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The elements required to prove this offense include the wrongful engagement in extramarital sexual conduct, awareness of the marital status, and the prejudicial or discrediting nature of the conduct.

For offenses committed between January 1, 2019, and December 27, 2023, the maximum punishments include one year of confinement, dishonorable discharge, bad conduct discharge, dismissal, total forfeitures, and reduction to E-1. For offenses committed after December 27, 2023, the confinement range remains 0-12 months, and similar punitive measures apply, reflecting the serious view the military takes on such conduct.

Being accused of adultery under Article 134 UCMJ can have devastating consequences for a service member’s career and personal life. Convictions can lead to severe penalties, such as confinement, discharge, and loss of pay, which can tarnish a military record permanently. Therefore, seeking immediate legal assistance from the best military defense lawyers is crucial.

Experienced Article 134 UCMJ adultery lawyers can provide essential legal support in several ways. First, they possess a deep understanding of military law and the UCMJ, enabling them to navigate the complexities of the legal process effectively. They can scrutinize the evidence, identify procedural errors, and build a robust defense to challenge the prosecution’s case. This expertise is vital for protecting the accused’s rights throughout the proceedings.

Note: The maximum and minimum punishments for Article 134 UCMJ Extramarital Sexual Conduct – Adultery vary depending on the date of the offense.

What are the Elements of Article 134 UCMJ Extramarital Sexual Conduct – Adultery?

  1. That (state the time and place alleged), the accused wrongfully engaged in extramarital sexual conduct, to wit: __________ with __________;
  2. That, at the time, [the accused was married to someone else, which he/she knew] [(state the name of the person alleged) was married to someone else, which the accused knew]; and
  3. That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces).

What are the Maximum Punishments for Article 134 UCMJ Extramarital Sexual Conduct – Adultery?

For Article 134 UCMJ Extramarital Sexual Conduct – Adultery offenses committed between 1 January 2019 and 27 December 2023:

  • 1 Year of Confinement
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1

For Article 134 UCMJ Extramarital Sexual Conduct – Adultery offenses committed after 27 December 2023

  • Under the Sentencing Parameters, Article 134 UCMJ Extramarital Sexual Conduct – Adultery is a Category 1 Offense
  • Confinement range from 0-12 months
  • Dishonorable Discharge, Bad Conduct Discharge, Dismissal
  • Total Forfeitures
  • Reduction to E-1
  • Note: The Military Judge MAY impose a period of confinement less than the jurisdictional maximum period of confinement upon finding specific facts that warrant such a sentence. Manual for Courts-Martial, United States (2024 ed.), Appendix 12B-C

Combined UCMJ Maximum Punishment Charts

Sample Specification for Article 134 UCMJ Extramarital Sexual Conduct – Adultery

In that Capt Rick Hornball, US Air Force, 27th Strike Fighter Group, did, at or near Eglin Air Force Base, Florida, on or about 8 September 2025, wrongfully engage in extramarital conduct, to wit: engaged in sexual intercourse with Monica Homewrecker, a person the accused knew was married to a person other than the accused, and that such conduct was to the prejudice of good order and discipline in the armed forces.

Model Specification for Article 134 UCMJ Extramarital Sexual Conduct – Adultery

In that __________ (personal jurisdiction data), (a married person), did, (at/on board – location), on or about __________, wrongfully engage in extramarital conduct, (to wit: __________) with __________, (a person the accused knew was married to a person other than the accused) (a person the accused knew was not the accused’s spouse), and that such conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

What are the Definitions for Article 134 UCMJ Extramarital Sexual Conduct – Adultery?

“Extramarital sexual conduct” in Article 134 UCMJ Extramarital Sexual Conduct cases means any of the following acts engaged in by persons of the same or opposite sex:

  • genital to genital sexual intercourse;
  • oral to genital sexual intercourse;
  • anal to genital sexual intercourse; and
  • oral to anal sexual intercourse.

A “marriage” exists until it is dissolved following the laws of a competent state or foreign jurisdiction.

Article 134 UCMJ Extramarital Sexual Conduct military defense lawyer“Conduct prejudicial to good order and discipline” in Article 134 UCMJ Extramarital Sexual Conduct – Adultery cases cause a direct and obvious injury to good order and discipline. Extramarital sexual conduct that is directly prejudicial to good order and discipline includes conduct that has an obvious and measurably divisive effect on unit or organization discipline, morale, or cohesion or is detrimental to the authority or stature of or respect toward a Servicemember or both.

“Service discrediting conduct” in Article 134 UCMJ Extramarital Sexual Conduct – Adultery cases tend to harm the reputation of the service or lower it in public esteem. “Discredit” means to injure the reputation of the armed forces and includes extramarital sexual conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.

Under some circumstances, extramarital sexual conduct may not be prejudicial to good order and discipline but may be service-discrediting. Likewise, depending on the circumstances, extramarital sexual conduct can be prejudicial to good order and discipline but not be service-discrediting.

In determining whether the alleged extramarital sexual conduct, in this case, is (prejudicial to good order and discipline) (and) (of a nature to bring discredit upon the armed forces), consider all the facts and circumstances offered on this issue, including but not limited to:

  • the accused’s marital status, military rank, grade, or position;
  • the co-actors marital status, military rank, grade, and position, or relationship to the armed forces;
  • the military status of the accused’s spouse or the co-actor spouse, or their relationship to the armed forces;
  • the impact, if any, of the extramarital sexual conduct on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces;
  • the misuse, if any, of government time and resources to facilitate the commission of extramarital sexual conduct;
  • whether the extramarital sexual conduct persisted despite counseling or orders to desist; the flagrancy of the extramarital sexual conduct, such as whether any notoriety ensued; and whether the extramarital sexual conduct was accompanied by other violations of the UCMJ;
  • the impact of the extramarital sexual conduct, if any, on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency;
  • whether the extramarital sexual conduct involves an ongoing or recent relationship or is remote in time;
  • where the extramarital sexual conduct occurred;
  • who may have known of the extramarital sexual conduct;
  • whether the accused’s or co-actor’s marriage was pending legal dissolution, defined as an action with a view towards divorce proceedings, such as the filing of a petition for divorce;
  • the nature, if any, of the official and personal relationship between the accused and (__________).

Legal separation and Article 134 UCMJ Extramarital Sexual Conduct – Adultery

It is an affirmative defense to extramarital sexual conduct that the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are legally separated at the time of the conduct. When this defense has been raised, include the following instructions.

The evidence has raised the issue of whether (the accused) (and) (state the name of the co-actor) was/were legally separated at the time of the alleged extramarital sexual conduct. It is a defense to the offense of extramarital sexual conduct that the accused and (state the name of the co-actor) were/were legally separated at the time of the extramarital sexual conduct.

To be a legal separation, the separation must have been ordered by a court of competent jurisdiction. This defense does not exist unless all parties to the conduct are legally separated. The prosecution has the burden to prove beyond a reasonable doubt that the accused and (state the name of the co-actor) was/were not legally separated.

Examples Article 134 UCMJ Extramarital Sexual Conduct (Adultery):

  1. Consensual Sexual Intercourse with Someone Other Than Spouse: Engaging in sexual intercourse with a person who is not one’s legal spouse.
  2. Ongoing Romantic Relationship: Maintaining a romantic and sexual relationship with someone other than one’s spouse over a prolonged period.
  3. One-Night Stand: Having a single sexual encounter with someone other than one’s spouse.
  4. Emotional Affair with Physical Contact: Engaging in an emotional affair that includes physical intimacy, such as oral sex, with someone other than one’s spouse.
  5. Affair with a Fellow Service Member: Having a sexual relationship with a fellow service member while married.
  6. Sexual Relations While Deployed: Engaging in sexual activities with someone other than one’s spouse while deployed.
  7. Infidelity During Temporary Duty Assignment (TDY): Having sexual relations with someone other than one’s spouse during a temporary duty assignment.
  8. Affair with a Subordinate: Engaging in sexual activities with a subordinate could also lead to charges of fraternization.
  9. Affair with a Civilian: Engaging in sexual activities with a civilian while married.
  10. Using Dating Apps for Extramarital Sex: Using dating apps to meet and have sexual encounters with people other than one’s spouse.
  11. Affair with a Superior Officer: Engaging in sexual activities with a superior officer, which can also be viewed as fraternization.
  12. Sexual Relationship with a Contractor: Having a sexual relationship with a civilian contractor while married.
  13. Prostitution: Engaging in sexual activities with a prostitute while married.
  14. Open Relationship Without Spousal Consent: Participating in an open relationship or swinging without the legal spouse’s knowledge and consent.
  15. Sexual Activities at Military Events: Engaging in sexual activities with someone other than one’s spouse during military events or social gatherings.
  16. Using Military Resources for Extramarital Affair: Using military communication or transportation resources to facilitate an extramarital affair.
  17. Affair with a Neighbor on Base: Having a sexual relationship with a neighbor while living on a military base.
  18. Sexual Activities in Base Housing: Engaging in sexual activities with someone other than one’s spouse in base housing.
  19. Sexual Relationship with a Foreign National: Having a sexual relationship with a foreign national while stationed overseas and married.
  20. Using Work Hours for Affair: Using official work hours to engage in extramarital sexual conduct.
  21. Affair Leading to Pregnancy: Having an affair that results in pregnancy complicates personal and professional life.
  22. Cohabitation with Non-Spouse: Living with someone other than one’s spouse in a romantic and sexual relationship.
  23. Sexual Activities During Official Travel: Engaging with someone other than one’s spouse during official travel or training trips.
  24. Maintaining a Mistress: Financially supporting and maintaining a mistress or lover while married.
  25. Affair Known to Unit Members: Having an affair that becomes known to unit members, affecting morale and discipline.
  26. Sexual Relations with Multiple Partners: Engaging in sexual relations with multiple partners while married.
  27. Use of Military Facilities for Affairs: Using military facilities, such as barracks or recreation centers, to conduct extramarital affairs.
  28. Affair with a Same-Sex Partner: Engaging in a sexual relationship with a same-sex partner while married, regardless of the gender of the spouse.
  29. Extramarital Affairs Affecting Mission: Engaging in extramarital sexual conduct that affects mission readiness or unit cohesion.

These examples highlight conduct that could be deemed prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, making them violations under Article 134 UCMJ Extramarital Sexual Conduct (Adultery).

Mistake of fact and Article 134 UCMJ Extramarital Sexual Conduct – Adultery

It is an affirmative defense to Article 134 UCMJ Extramarital Sexual Conduct – Adultery if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried or legally separated or that they were lawfully married to each other. If this defense is raised by the evidence, then the burden of proof is upon the United States to establish that the accused’s belief was unreasonable or dishonest. When this defense has been raised, include the following instructions.

‘The evidence has raised the issue of mistake on the part of the accused concerning [(his/her) (state the name of the co-actor)’s marital status] [whether (he/she) (state the name of the co-actor) was legally separated] [whether he/she and (state the name of the co-actor) were lawfully married to each other] concerning the offense(s) of Article 134 UCMJ Extramarital Sexual Conduct – Adultery.

The accused is not guilty of the offense of Article 134 UCMJ Extramarital Sexual Conduct – Adultery conduct if:

  1. he/she mistakenly believed that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, and
  2. his/her mistaken belief was reasonable.

To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct.

Mistake and Article 134 UCMJ Extramarital Sexual Conduct – Adultery

The mistake cannot be based on a negligent failure to discover the true facts. Negligence is the absence of due care, which is what a reasonably careful person would do under the same or similar circumstances.

You should consider the accused’s (age) (education) (experience) (______) along with the other evidence on this issue, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

Burdens of Proof in Article 134 UCMJ Extramarital Sexual Conduct – Adultery Cases

The burden is on the prosecution to establish the accused’s guilt of Article 134 UCMJ Extramarital Sexual Conduct – Adultery. If you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused was not under the mistaken belief that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, the defense of mistake does not exist.

Reasonable Doubt and Article 134 UCMJ Extramarital Sexual Conduct – Adultery

Even if you conclude that the accused was under the mistaken belief that [(he/she) (state the name of the co-actor) was not married to someone else] [(he/she) (state the name of the co-actor) was legally separated from his/her spouse] [he/she and (state the name of the co-actor) were lawfully married to each other] at the time of the alleged sexual conduct, if you are convinced beyond a reasonable doubt that, at the time of the charged offense(s), the accused’s mistake was unreasonable, the defense of mistake does not exist.

Article 134 UCMJ Extramarital Sexual Conduct – Adultery Military Defense Lawyers

The social stigma associated with Article 134 UCMJ Extramarital Sexual Conduct – Adultery allegations can be overwhelming. A knowledgeable military defense lawyer can help mitigate reputational damage by providing strategic counsel and representing the accused vigorously in court. This support can be instrumental in achieving a favorable outcome, whether by disproving the allegations or negotiating lesser penalties.

In addition, skilled military defense lawyers are adept at handling the emotional and psychological stress accompanying such accusations. They offer legal guidance and moral support, helping the accused maintain their focus and morale during the challenging investigation and trial period.

Call our Article 134 UCMJ Extramarital Sexual Conduct – Adultery lawyers today

In conclusion, facing charges of extramarital sexual conduct under Article 134 UCMJ is a serious matter that requires immediate and expert legal intervention. The best military defense lawyers have the knowledge and experience to navigate the military justice system, protect the accused’s rights, and strive for the most favorable outcome. Seeking the assistance of experienced Article 134 UCMJ adultery lawyers is crucial for anyone accused of this offense to ensure a fair trial and the best possible defense.

If you are suspected or accused of Article 134 UCMJ Extramarital Sexual Conduct – Adultery, speak with one of our experienced military court martial lawyers to discuss your case.

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