Adultery remains a chargeable offense under the UCMJ, but the practical reality of how it is prosecuted has shifted significantly in recent years. Reforms to the military justice system have formalized the requirement that conduct be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces before charges are appropriate. The result is that commanders and prosecutors must assess not just whether adultery occurred but whether pursuing it serves a legitimate military purpose.
The factors that influence that assessment include the rank and positions of the individuals involved, whether the relationship involved a subordinate-superior dynamic, whether there are any operational connections between the parties, and what the broader circumstances suggest about military impact. Cases involving purely private relationships between adults of equal rank and no direct professional connection are far less likely to result in charges than those involving exploitation of authority or direct harm to unit cohesion.
How Recent UCMJ Reforms Changed the Standard for Adultery Prosecution
The Military Justice Improvement Act of 2016 and subsequent amendments to the Manual for Courts-Martial formalized requirements that had previously been applied inconsistently across commands. Prior to these reforms, adultery could be charged under Article 134 as a general conduct charge whenever a commander concluded the conduct was prejudicial to good order and discipline, and the threshold for what met that standard varied considerably. The reforms embedded specific factors that must be considered before charges are appropriate.
Under the current framework, prosecution is appropriate when the adultery was clearly prejudicial to good order and discipline or clearly of a nature to bring discredit on the armed forces. The manual identifies factors that inform this assessment: whether the accused or the other person involved was in the same unit, chain of command, or operational assignment; whether the conduct involved a subordinate; whether it occurred during a deployment; and whether the circumstances attracted public attention or media coverage. Cases that do not present any of these factors are significantly less likely to result in charges today than they would have been a decade ago.
The Good Order and Discipline Requirement and How It Is Assessed
The prejudicial-to-good-order-and-discipline element of an adultery charge is not a formality. It requires the government to demonstrate that the specific conduct had or was likely to have a concrete adverse effect on the functioning of the military unit or the armed forces. That demonstration requires evidence, not just assertion. A commander who states in conclusory terms that conduct is prejudicial has not established the element. The government must show what specifically was disrupted, what relationships were affected, and how the conduct interfered with the military mission or unit cohesion.
Defense counsel who challenge this element effectively at trial require the government to quantify the disruption. Witness testimony about what actually changed in the unit as a result of the relationship, what operational impacts occurred, and what the documented effect on unit functioning was gives the panel something concrete to evaluate. The absence of documented impact, or evidence that the unit functioned normally throughout the period in question, undermines the government’s ability to establish the element beyond a reasonable doubt.
Factors That Make Prosecution More or Less Likely
The factors identified in the Manual for Courts-Martial’s discussion of adultery charges create a framework that both commanders and defense attorneys can use to assess how likely prosecution is in a specific case. The presence of a supervisory relationship between the parties, operational proximity, deployment context, and public attention all increase the likelihood that charges will be pursued. The absence of these factors, combined with a purely private relationship between adults not in the same chain of command, moves the case toward the range where prosecution is unlikely.
Defense counsel who understand these factors can present written submissions to the convening authority and the staff judge advocate before referral that document the absence of the factors that would make prosecution appropriate. A well-developed argument that the specific circumstances do not support the prejudice element can prevent referral entirely in cases at the margins of prosecutorial appropriateness.
Cases Where Adultery Charges Were Dismissed for Lack of Prejudice
Military courts have dismissed adultery charges where the government failed to establish the prejudicial element with sufficient evidence. Cases where the relationship was entirely private, where no superior-subordinate dynamic existed, where the unit was unaware of the relationship, and where no operational impact was demonstrated have produced favorable rulings on motions to dismiss. The case law reflects a body of decisions in which courts have taken seriously the requirement that the element be proven rather than assumed.
These precedents are useful to defense counsel who are preparing motions to dismiss or motions for a finding of not guilty at the close of the government’s case. The specific facts that produced dismissals in prior cases can be compared against the specific facts of the current case to assess whether the argument is viable and how it should be structured. An adultery charge that cannot survive a motion to dismiss at the close of the government’s evidence costs the prosecution significant time and resources and signals to the convening authority that the case was weaker than its referral suggested.
Practical Reality of How Often Adultery Is Actually Prosecuted Today
Adultery charges as standalone charges, rather than as components of cases with other more serious allegations, are relatively uncommon today compared to a decade ago. The practical reality is that most commands do not invest the resources required for a court-martial based solely on consensual adult conduct between parties who had no direct professional relationship and whose conduct created no documented harm to the unit. The cases that proceed to trial are those with aggravating factors, and even those frequently result in plea agreements rather than contested findings.
A service member who is under investigation for adultery and who has no aggravating factors should work with counsel to document the absence of those factors and to present that documentation to the command. A command that understands the legal requirements for prosecution and that receives a clear-eyed assessment of how the evidence would fare at trial is better positioned to make a decision that reflects the actual strength of the case rather than a reflexive response to the allegation.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.