UCMJ Article 134 Adultery is also known as Extramarital Sexual Conduct. Civilian law doesn’t consider Adultery a crime in most civilian jurisdictions. Although proving this behavior in a military court can be challenging, adultery remains an offense for military personnel.

If a service member found guilty of adultery sexual conduct may face fines, discharge from service, and potentially imprisonment. The repercussions of this violation are akin to those outlined in the previous Manual for Courts Martial regarding adultery. While cheating on a spouse carries personal repercussions, in the military context, it can jeopardize a service member’s career.

Military prosecutors often include charges of adultery alongside other offenses like rape or sexual assault. Military Prosecutors generally do not prosecute adultery at court-martial unless it is part of a broader misconduct allegation.

Some specialists believe that adultery is an antiquated offense. However, the services still view cheating on a spouse as bad behavior. The military believes it undermines order and discipline within the ranks.

Punitive Elements for Adultery or Extramarital Sexual Conduct Defined by the UCMJ

The punitive elements for this offense are the following:

(1) That the accused wrongfully engaged in extramarital sexual conduct as described in subparagraph c. (2) with a certain person.

(2) That, at the time, the accused or the other person was married to someone else; and

(3) That, under the circumstances, the conduct of the accused was either (i) to the prejudice of good order and discipline in the armed forces; or (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.

What do commanders consider when deciding whether to charge a service member with UCMJ Article 134 Extramarital Sexual Conduct?

Commanding officers evaluate whether to pursue charges for adultery if the behavior satisfies specific criteria. Commanders decide if the reported actions hurt good order and discipline. They also consider if these actions could harm the armed forces’ reputation.

Commanders will look at the marital status, military rank, grade, or position of the accused. They will also consider the same factors for the co-actor, including their connection to the armed forces.

Commanders are responsible to protect government assets. They will also examine any improper use of government time and resources that may have facilitated the accused’s misconduct. There have been instances where soldiers faced fraud charges for utilizing government resources to support adulterous activities.

Commanders consider the following in deciding whether to charge:

• whether the accused or co-actor was legally separated
• whether accused continued with the illegal behavior despite being counsel or ordered to stop
• whether the misconduct involves an ongoing or recent relationship or happened long before.

Can you face legal issues for adultery if legally separated? 

Commanders want to know if a service member is legally married. Commanders will check if a court has confirmed that the accused is officially separated from their spouse.

The updated MCM 2024 defines the defenses available to those participants who are:

• legally separated
• believed by the participants to be legally separated or not married.

What are the UMCJ Article 134 Extramarital Sexual Conduct Consequences, or Adultery?

The consequences under UCMJ Article 134 for Extramarital Sexual Conduct are very serious. They are similar to the harsh penalties for adultery mentioned earlier. This is especially clear when we look at the small fines given by some civilian courts for cheating in relationships. The worst punishment can include a Dishonorable Discharge, loss of all pay and benefits, and up to one year in jail.

To understand this offense better, including the maximum penalty and possible defenses, talk to a skilled military attorney. They can help you analyze the strengths and weaknesses of the prosecution’s case.