Members of the military are held to higher ethical standards than civilians. This is best exemplified by the fact most civilian jurisdictions do not prosecute cases of adultery, but the military does.

Changes to the offense of Adultery in the military. Prior to 1 January 2019, Adultery was defined as “sexual intercourse” between a married person and someone other than his or her spouse. However, with the abolishment of “Don’t Ask, Don’t Tell” and the acceptance of diversity within the ranks of the military over the past several years to include the legal recognition of same sex marriages in the military, the original definition of “Adultery” was no longer effective in dealing with extramarital affairs within the military ranks. Accordingly, effective 1 January 2019, the Military Justice Act replaced the offense of “Adultery” with the offense “Extramarital Sexual Conduct.”

The current offense of Extramarital sexual conduct defines “sexual intercourse” more broadly than the definition under the older “Adultery” offense. Specifically, Extramarital sexual conduct includes sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex. Similar to the old offense of “Adultery,” Extramarital sexual conduct also occurs if you are not the married party but have sexual relations with a person who is married.

New Affirmative Defense of “Legal Separation.” Under the old offense of “Adultery,” the fact that a married party was “legally-separated” from his or her spouse was not a defense. However, under the new offense Extramarital sexual conduct, legal separation is now a recognized affirmative defense. However, in order for the affirmative defense to apply, both parties to the conduct must either be legally separated or unmarried. Therefore, it is not an affirmative defense if the accused is legally separated but the other party to the conduct is still married. It is an affirmative defense if the accused is legally separated and the other party is unmarried.

Defense of Mistake of Fact. Since one of the elements to the offense Extramarital sexual conduct requires the government to prove that, at the time, the accused knew that the accused or the other person was married to someone else, the defense of Mistake of Fact may apply. In order for Mistake of Fact to apply as a defense, the accused would have to show they 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 the defense of Mistake of Fact is raised by the defense, then the burden of proof is on the government to establish that the accused’s belief was unreasonable or not honest.

Maximum Punishment for Extramarital Sexual Conduct

The maximum punishment for Extramarital Sexual Conduct is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to 1 year.

If you are under investigation or have been charged with Extramarital Sexual Conduct, you may be subject to discipline by one of the following:

Administrative Disciplinary Action and/or Administrative Separation

Court-Martial, with possible brig time, reduction in rank, forfeitures of pay and a punitive discharge.

At the Military Law Center Mr. Barthel will take the time necessary to thoroughly review the government’s evidence against you and conduct his own investigation while developing facts that may support a defense to the facts of your case, thus ensuring the best possible outcome for your case.

Facing Investigation or Military Charges of Extramarital Sexual Conduct?

Make sure that you get the right help from a Civilian Military Attorney, in San Diego or Worldwide, built to support your needs. Military Law Center Is Ready to Help You – Right Now. Military Law Center will aggressively advise and defend you – Know Your Military Legal Rights.

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