Military Defense Lawyer

Extramarital Sexual Offenses (Article 134) | Adultery

R. Davis Younts

Military Lawyer

The Uniform Code of Military Justice (UCMJ) governs personal morality within the military, including various offenses. One prevalent offense that falls under its jurisdiction is adultery, which is punishable under Article 134 of the UCMJ. Extramarital sexual conduct under Article 134 of the UCMJ is a serious accusation that can have a serious impact on your military career and your future. If you are facing charges of extramarital sexual conduct, contact R. Davis Younts an experience Military Lawyer.

Can I defense my self on an extramarital Sexual offense?

Years ago, individuals accused of adultery often attempted to defend themselves by citing separation from their spouse. But, an affirmative defense has been established for cases involving extramarital sexual conduct. This defense can be invoked if “the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction.” it’s crucial to note that this defense only applies when all parties involved in the conduct are either legally separated or unmarried at the time.

If you are facing charges of Extramarital Sexual Conduct under Article 134, it is important to take the allegations seriously and take actions to protect your rights. Contact R. Davis Younts a military lawyer with two decades of experience.

Now remains some ambiguity regarding the timing of when this defense can be raised. Sometimes couples separate with the intention of divorce or undergo a trial period before deciding to reconcile. The safest option to approach the separation is to have a written agreement that have important matters like: Child custody, debts, and property division. But, court approval of these agreements may not happen until a divorce action is filed, even if they are legally binding.

To establish the offense of extramarital sexual misconduct, the prosecution must prove the following beyond a reasonable doubt:

The accused engaged in wrongful extramarital conduct
The accused knew that either they or the other person was married to someone else.

Under the circumstances, the accused’s conduct was either (i) detrimental to good order and discipline in the armed forces (ii) likely to bring discredit upon the armed forces, or (iii) both detrimental to good order and discipline and likely to bring discredit upon the armed forces.

The definition of offending behavior and extramarital sexual misconduct has expanded beyond the traditional concept of adultery. Under Article 134, the prosecution needed to establish vaginal sexual intercourse. However, the revised definition now surround several acts and applies to individuals of the same or opposite sex. The analysis states that this definition aligns with that found in “18 U.S.C. § 2256(2)(A)(i)” also, individuals in same-sex marriages can be charged with this offense.

The acts covered under this paragraph of the article include:

  • Genital to genital sexual intercourse
  • Oral to genital sexual intercourse
  • Anal to genital sexual intercourse
  • Oral to anal sexual intercourse

Both the previous and current versions of the offense require a careful assessment of several factors before initiating a prosecution. This evaluation involves a “totality of the circumstances” test, where not all factors need to be present for prosecution to be warranted. These considerations were developed following the Ralston Affair and include:

  1. Marital status, military rank, grade, or position of the accused
  2. Marital status, military rank, grade, position, or relationship to the armed forces of the co-actor
  3. Military status of the accused’s spouse or the spouse of the co-actor, or their relationship to the armed forces
  4. Impact, if any, of the extramarital conduct on the ability of the accused, co-actor, or either spouse to perform their duties in support of the armed forces
  5. Misuse, if any, of Government time and resources to facilitate the commission of the conduct
  6. Persistence of the conduct despite counseling or orders to cease, the level of flagrancy, including any resulting notoriety, and whether the extramarital conduct was accompanied by other UCMJ violations
  7. Negative impact of the conduct on the units or organizations of the accused, co-actor, or their spouses, such as detrimental effects on morale, teamwork, and efficiency
  8. Whether the accused’s or co-actor’s marriage was pending legal dissolution, which refers to actions indicative of divorce proceedings, such as filing a petition for divorce
  9. Whether the extramarital conduct involved an ongoing or recent relationship or if it is distant in time

What is the Maximum Punishment for extramarital sexual misconduct?

A service member convicted under Article 134 for extramarital sexual misconduct faces a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year.

If you have been accused or charged with extramarital sexual conduct, the representation of an experienced military lawyer such as R. Davis Younts will help you to protect your rights.

UCMJ Articles:

Article 15:
Article 92:
Article 128:
Article 120:
Military Medical:
Military Religious Freedom & Religious Accommodations:


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