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Ask the Lawyer: Affairs can lead to multiple charges

Nov. 5, 2013 - 07:27PM   |  
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Q. Can a married officer who has an affair with another service member be charged with other offenses in addition to adultery?

A. Sleeping with someone who is not your spouse, or who is married to someone else, crosses many lines. Not only does it violate the trust within either party’s marriage, it also violates the military’s unique prohibition against adultery under Article 134 of the Uniform Code of Military Justice.

However, the list of possible charges a service member can face for participating in an extramarital affair does not end here.

For starters, if a married service member sexually assaults someone, he or she also can face a charge of rape in violation of Article 120.

The issue here is that each offense requires proof of different elements, so courts would uphold multiple charges at trial.

In U.S. v. Charles G. Rogan (2010), the U.S. Navy-Marine Corps Court of Criminal Appeals found a married chief warrant officer’s affair with a private first class in his battalion resulted in both adultery and fraternization. The officer had appealed his general court-martial conviction, claiming they were unconstitutionally multiplicious — essentially, criminalizing the same acts twice.

The appellate court disagreed. The judges noted how adultery involves sexual intercourse with someone who is not the service member’s wife or who is married to a third party, while fraternization requires a commissioned officer or warrant officer to knowingly fraternize with an enlisted member on terms of military equality in a way that breaches military custom.

The court found these charges were not multiplicious because “each offense required proof of a fact that the other did not.” It affirmed the findings and sentence against the officer.

An officer also can be charged with Article 133, conduct unbecoming, for the same acts that were charged under different offenses such as adultery or fraternization.

U.S. v. Gerardo B. Gamez (2005) involved a married first lieutenant who pleaded guilty at general court-martial to disobeying a superior officer, failing to obey a lawful general regulation (the Air Force instruction on “Professional and Unprofessional Relationships”), sodomy and adultery. All of the charges stemmed from his extramarital affair with an airman.

The officer appealed to the U.S. Air Force Court of Criminal Appeals that his fraternization charge should be dismissed because the regulation on which it was based prohibited officers from wrongfully engaging in sexual relations with enlisted personnel, and the sodomy and adultery charges fell within the meaning of such “sexual relations.”

The court found that the sodomy and fraternization charges were “factually distinguishable,” because sodomy involves oral sex, which is not the same as the sexual intercourse involved in fraternization. But the court found the fraternization and adultery charges were multiplicious and dismissed the adultery charge.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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