Capt. James Yee, the Army chaplain accused of sneaking classified materials out of Guantanamo Bay, has been charged with adultery as well. What sort of punishment do soldiers face for cheating on their spouses?
The military penalty remains pretty harsh: up to a year in confinement plus a dishonorable discharge, which entails the forfeiture of all retirement pay. But a soldier’s odds of facing such punishment are slim, at least if adultery is all they’re charged with. In fact, courts martial on adultery charges alone are almost unheard of; the charge is usually added atop a list of other crimes, like failing to obey orders, lying to a superior, or sexual misconduct. In October, for example, an Air Force enlistee in Colorado pleaded guilty to adultery, along with providing liquor to a minor and engaging in group sex. The man was sentenced to two months of hard labor and a bad conduct discharge. The latter penalty is considered less shameful than a dishonorable discharge, though it usually involves a similar forfeiture of benefits.
Proving adultery under military guidelines is no mean prosecutorial feat. According to Article 134 of the Uniform Code of Military Justice, the prosecution must prove that the accused not only committed the indiscretion, but also that his or her conduct “was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” In other words, the affair must somehow have hampered the military’s ability to do its job—say, by lowering morale on a base, or by damaging the public’s faith in the armed forces.
In April 2002, President Bush further discouraged adultery prosecutions by issuing an executive order that clarified the circumstances that might necessitate legal action. Although the order maintained that “adultery is clearly unacceptable conduct,” it also listed a variety of factors that commanders should take into consideration before proceeding with a court martial. These include the accused’s rank, the impact of the affair on the involved parties’ job performance, and whether any of the hanky-panky took place while the accused was on the clock.
The legal change was inspired by a 2001 report issued by the National Institute of Military Justice, which argued that the adultery laws were too vague and thus enforced too arbitrarily. The most infamous example in recent years was the brouhaha surrounding Lt. Kelly Flynn, an unmarried Air Force pilot who was discharged in 1997 after lying about an affair with the husband of an enlisted woman. Many women’s rights advocates grumbled that Flynn’s private life was her own business and that a man in a similar position would have been let off the hook with a wink and a nudge.
Compared to the civilian penalties for adultery, the military punishment is remarkably draconian. In Maryland, for example, the maximum penalty for adultery is a whopping $10 fine. And John Raymond Bushey Jr., a Virginia attorney who recently pleaded guilty to adultery, was fined $125 plus $36 in court costs. He has appealed the decision.