December 20, 2009
Maravilla: "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas"
Christopher Maravilla has published "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas," 37 Cap. U. L. Rev. 659-680 (2009). Here is an excerpt:
The U.S. military has a long standing prohibition, punishable by court martial, against adultery committed by service members whether it is between service members of the same rank, different ranks, or with civilians. [FN1] While the armed forces are a unique body in terms of constitutional jurisprudence and not necessarily subject to the same protections as civilians (generally with regard to the First Amendment right to free speech), [FN2] this doctrine is not absolute. The Supreme Court's decision in Lawrence v. Texas opened the issue whether consensual sexual activity between two adults is protected under the Constitution, specifically in homosexual relationships. [FN3] The Court of Appeals for the Armed Forces in United States v. Marcum sidestepped the issue by finding that Lawrence did not apply to the specific facts in that case. [FN4] Subsequent military courts have misread Marcum in holding that Lawrence either: (1) is applied only on a case by case basis, [FN5] or (2) does not apply in the military context at all. [FN6]
Adultery covers a wide range of conduct from one night stands, relationships with a co-worker, to long-term romantic entanglements. [FN7] Adultery among members of the Armed Forces is considered common. [FN8] For example, condoms have been made available for both married and unmarried sailors going ashore. [FN9] There are no statistics available for the rate of adultery among members of the armed forces. There is, however, what is considered to be an informal amendment to the prohibition of adultery: “[D]o what you want, but don't do it blatantly and don't get caught.” [FN10] In other words, the policy is another form of “Don't Ask, Don't Tell.” [FN11]
In interviews with soldiers stationed at Fort Bliss in El Paso, Texas, the New York Times found one soldier who said, “But everyone is human. It's going to happen.” [FN12] Another married soldier spent forty dollars to spend five minutes with a prostitute in a Mexican brothel. [FN13] To prosecute any one of these individuals for their conduct becomes almost arbitrary. Critics also argue that the military prosecutors' willingness to pursue charges against adulterers varies depending on the service and the commanders. [FN14] Lawrence J. Korb of the Brookings Institute also argues that these prosecutions when they do occur are more aimed at a member of the Armed Forces already in trouble for something else. [FN15] He likens it to “getting Al Capone on income tax evasion.” [FN16]
However, as this article argues, Lawrence applies to the military, and the crime of adultery in and of itself should no longer be barred by the military because it serves to merely enforce a moral code. Rather, adultery between service members of different ranks should be brought under the *661 prohibition against fraternization. [FN17] While this article does not reach “Don't ask, Don't tell,” many of the arguments presented resonate with that issue. This article will: (1) discuss the military's criminalization of adultery in light of Lawrence and Marcum, (2) argue that this prohibition serves only to enforce a moral code, and (3) that such prosecutions should be brought as fraternization, not adultery.
The abstract is also on SSRN.
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