Letter to Lt. Col. Thomas C. Jaster, Air Force Legal Services Agency, Re: Proposed Amendments to Sections of Manual for Courts-Martial Relating to Adultery, 63 Fed. Reg. 43687 (Aug. 14, 1998)

October 27, 1998

Lt. Col. Thomas C. Jaster, USAF
Air Force Legal Services Agency
112 Luke Ave., Room 343
Bolling Air Force Base
Washington DC 20332-8000

Re: Proposed Amendments to Sections of Manual for Courts-Martial Relating to Adultery, 63 Fed. Reg. 43687 (Aug. 14, 1998)

Dear Colonel Jaster:

The National Women's Law Center submits these comments on the proposed amendments to Paragraph 62 of the Manual for Courts-Martial (MCM). Paragraph 62 addresses the circumstances under which adultery is treated as an offense under Article 134 of the Uniform Code of Military Justice (UCMJ).(1) The proposed amendments are the result of a June 7, 1997, initiative of the Secretary of Defense, under which he requested that the General Counsel task the Joint Service Committee on Military Justice (JSC) to review "the applicable sections of the MCM relating to adultery," recommend "clarifying guidance if necessary," and determine whether the MCM provisions "are adequate to ensure fair and relatively consistent treatment of service members."(2) The JSC(3) has not recommended any change in the elements of the offense of adultery in Paragraph 62, but proposes (under the heading "Explanation") a discussion of the nature of the offense and a list of factors for commanders to consider in determining whether adulterous acts contravene the standard of Article 134.

The Context

NWLC is concerned that the JSC failed to tackle the difficult issues that lay behind the Secretary's initiative. As the JSC is well aware, this initiative grew out of public concern that charges of adultery in the Armed Forces were not handled fairly and consistently. Rather than addressing this significant underlying issue, the JSC left untouched the critical section of the MCM, Paragraph 62(b)(3), which simply repeats the vague "catchall" language of Article 134 relating to good order and discipline and discredit upon the Armed Forces, and added, as Paragraph 62(c)(2), some explanatory material that is neither clear nor helpful.

As NWLC stated in a letter to DoD General Counsel Judith Miller on August 1, 1997 (hereinafter NWLC letter),(4) both clarity and fairness require further definition of the Article 134 standards. The standards set out in Article 134 -- whether the conduct is prejudicial to good order and discipline or of a nature to bring discredit on the Armed Forces -- do not provide an adequate guide to conduct.(5) The lack of clarity that is inherent in the "catchall" nature of the Article 134 standards opens the door to inequitable application of the standards, allowing some offenders to escape punishment for activity that leads to sanctions for other offenders.(6) Further, lack of clarity permits favoritism and bias, or perception of such, in sanctions for adultery and raises the especially invidious possibility of different standards being applied to service members of different sexes or races.

Defining Proscribed Adultery

The NWLC letter made three principal recommendations that would enhance clarity and fairness in defining proscribed adultery under Article 134. First, adultery should be decriminalized and subject only to administrative and other noncriminal sanctions. (See Attachment at 3.) Second, only adulterous conduct that is prejudicial to good order and discipline should be categorized as falling within military proscription. (See Attachment at 5-8.) Under this recommendation, DoD should, as it has authority to do in interpreting the application of Article 134 to adultery, remove from consideration whether the adulterous conduct was "of a nature to bring discredit upon the Armed Forces" because of the inherent difficulty in articulating and applying this standard. (See Attachment at 3-5.) Third, in determining whether adulterous conduct is prejudicial to good order and discipline, the test should be whether it actually, directly and negatively affects military job performance or unit efficiency. (See Attachment at 7-8.) The net result of these changes would be to provide more certain guidance to members of the military on when the offense would warrant military discipline. NWLC continues to believe that these recommendations are appropriate and fair and that their implementation would address many of the concerns that gave rise to the Secretary's initiative.

In contrast, the JSC's proposed amendments to MCM, Paragraph 62 -- contained in the proposed "Explanation" under subparagraph (c) -- are unlikely to enhance clarity or fairness in the treatment of service members accused of adultery.

The factors set out in the JSC's Paragraph 62(c)(2) are derived from case law and the current Military Judges' Bench Book, neither of which, as the NWLC letter addresses in more detail, is a model of consistency. (See Attachment at 2, 3-4, 6). Further, in several instances the factors are difficult to interpret. Sometimes this difficulty arises because the proposed amendments do not clarify whether a factor should be considered in evaluating the "good order and discipline" standard or the "discrediting" standard, or both. Sometimes its arises because the proposed amendments provide no guidance on the way a factor should be considered. For example, commanders are directed to consider the accused's and the co-actor's "military rank, grade or position." Does that mean that lower-ranking adulterers should be held to a different standard than higher ranking adulterers and, if so, what is the difference? Similarly, commanders are directed to consider the co-actor's relationship to the Armed Forces. If the co-actor has no relationship to the Armed Forces, does that meant that the adulterous act is less likely to violate Paragraph 62 (because it is unlikely to prejudice good order and discipline) or more likely to violate it (because it is likely to bring discredit to the military)? Both of these examples include questions that were raised by the widely publicized cases that led to the Secretary's initiative, yet the JSC has not answered them. Consequently, the list of factors does not provide clear and reliable guidance for service members or commanders in determining whether adulterous conduct is proscribed.(7)

Assuring Fair Procedures

Finally, the JSC's proposed amendments do not provide any assurance that the procedures used to investigate alleged adulterous acts will be consistent, fair and unbiased. As the NWLC letter states in more detail, these procedures should be improved in several key ways. (See Attachment at 8-10.) Most importantly, the investigation of adultery charges (as well as the investigation of other charges of sexual misconduct or equal opportunity offenses) should be conducted by investigators who are outside the chain of command and trained in the appropriate handling of these cases, so that commanders will have the guidance they need to exercise their discretion appropriately. These and other improvements in the investigative process set forth in more detail in the NWLC letter would enhance service members' confidence in the fairness and predictability of the process.

* * * *

NWLC appreciates the opportunity to submit comments on this matter and urges DoD to provide additional guidance for both commanders and other service members in this difficult area.

Sincerely,

Nancy Duff Campbell
Co-President

Frances J. Chetwynd
Of Counsel, Cole, Raywid & Braverman

Attachment

cc: Judith Miller, General Counsel
Department of Defense

1. An act of adultery can be prosecuted under Article 134 if it is prejudicial to good order and discipline or is of a nature to bring discredit on the Armed Forces. MCM, Part IV, Para. 62(b)(3).

2. See 63 Fed. Reg. 43687 (Aug. 14, 1998).

3. The proposed amendments are the result of both the JSC's work and the work of a Senior Review Panel of Department of Defense (DoD) civilian attorneys and judge advocates established to review the JSC's recommendations. Id. For simplicity's sake, the joint recommendation of this group will be referred to in these comments as the recommendations of the JSC.

4. A copy of the NWLC letter is attached, and incorporated by reference.

5. The difficulty that service members may have in understanding the nature and elements of a charge of adultery under Article 134 is well illustrated by the case of United States v. Green, 39 M.J. 606, 609 (A.C.M.R. 1994). In this case the accused had pleaded guilty to adultery under Article 134 even though he testified that he did not consider himself married at the time. When asked whether he believed his conduct was prejudicial to good order and discipline in the Armed Forces or service discrediting, the accused responded: "I don't really believe that -- I don't think so, sir, because, at the time -- well, I don't know exactly, I don't understand that -- exactly what that means --" 39 M.J. at 608.

6. Article 134 is sometimes referred to as "the general article," with the "'evident purpose'" of "'provid[ing] for the trial and punishment of any and all military offenses not expressly made cognizable by courts-martial in other and more specific Articles . . . .'" United States v. Snyder, 4 CMR 15, 17 (1952), quoting Winthrop, Military Law and Precedents, 2d ed. (1920) at 720.

7. NWLC notes with approval that the list of factors to consider does not include whether the alleged adulterous behavior violated local law or community standards. For the reasons set out in the NWLC letter (see Attachment at 4), consistency and fairness are not served by reference to local laws or community standards.

Note: the attachment referred to in the letter is Comments on Improvements to Guidance Relating to the Offense of Adultery Under the Uniform Code of Military Justice to the Department of Defense Senior Review Panel (August, 1997)