Historical Adultery Case Discussion
This article discusses a case and the adultery rules from 2009. The current listed offense is extramarital sexual conduct under Article 134. Its elements and defenses must be assessed under the law applicable to the alleged conduct. The current maximum is one year of confinement, a dishonorable discharge and forfeiture of all pay and allowances; its Category 1 confinement parameter is 0–12 months.
For noncapital general and special courts-martial, the sentencing parameter system applies when every offense of conviction occurred on or after 28 December 2023. The military judge must use the applicable confinement range unless specific facts justify a departure, which requires a written statement in the record explaining the factual basis. A category range does not increase the offense’s lawful maximum or the court-martial’s jurisdictional limit. An offense assigned sentencing criteria instead of a category requires consideration of those criteria. These are current rules; the date of the alleged conduct determines which offense definition and maximum punishment apply. Earlier conduct requires checking the earlier law. Confinement ranges are separate from authorized discharge, forfeiture and other punishments. Reduction to E-1 applies to enlisted personnel, not officers. Punitive separation also depends on military status. Dismissal applies to commissioned officers, including commissioned warrant officers, cadets and midshipmen. A dishonorable discharge applies to enlisted members and uncommissioned warrant officers; a bad-conduct discharge applies only to enlisted members.
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.
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