Article 134 Sexual Offenses
In United States v. Bristol, No. 36956, 2009 WL 1620443 (A.F. Ct. Crim. App. Jun. 11, 2009), the issue before the Court was whether the evidence factually was enough to sustain the accused's conviction for adultery?
In this case, the accused, a captain and a medical doctor stationed at Travis AFB although still married but separated from his spouse, began dating a civilian female in the health care industry but with no association with the military. They began dating in 2004. They eventually subsequently in together and she joined him when the accused was transferred to MacDill AFB. They stayed together as "boyfriend and girlfriend" until he was arrested in 2006. In 2005, the accused's wife contacted his commander in order to obtain the accused's address so that she could send him divorce paperwork. The accused's wife told the commander of his living arrangements, but did not complain of them.
The commander was unaware of the accused's living situation and did not conduct an investigation, but did order the accused to "cease and desist from living with his girlfriend." The second time the living arrangements became an issue was thirteen months later, in July 2006, when the female alleged he assaulted her during a domestic dispute.
The AFCCA ruled that the evidence was not factually enough to support the conviction for adultery. The court particularly considered the guidance in the 2005 MCM about adultery. The time period for the adulterous acts for which the military judge convicted the accused was July 2004 to July 2005. During this period, prior to the accused's spouse's phone call, no one was aware of his living arrangements. The phone call was for the "sole purpose" of finding his address to serve divorce papers.
The two had been separated for a long period of time and the spouse "was not upset" about the living arrangements. The accused's commander was not aware of the living arrangements, he did not conduct an investigation into the matter, and there was no evidence that the relationship influenced his status or duty performance.
Finally, the accused's girlfriend did not have any association with the base during the charged time period. Therefore, the court found the adultery conviction to be factually insufficient and set it aside.