Q. My wife and I have an open marriage. Can I be charged with adultery even though she allows me to sleep with other women?
A. Military swingers beware: A spouse's consent to sleep with other men or women will not save you from a conviction on the charge of adultery in violation of Article 134 of the Uniform Code of Military Justice.
Adultery, an offense unique to the military, occurs when a service member has sexual intercourse with someone who is not his or her spouse or who is married to someone else. This conduct must be service discrediting or prejudicial to good order and discipline. You'll notice that this offense is triggered by sexual intercourse, regardless of whether it is consensual.
In the 2013 case U.S. v. David J.A. Gutierrez, the appellant, an Air Force technical sergeant, tried to fight an adultery charge by arguing that he and his wife had an open marriage and she consented to his sexual activities outside their union. He argued that "adultery requires a victim spouse and that a spouse who consents is not a victim," according to the U.S. Air Force Court of Criminal Appeals.
But the court rejected this argument that a spouse's consent can be used as a defense to an adultery charge. On appeal, the U.S. Court of Appeals for the Armed Forces earlier this year affirmed Gutierrez's adultery conviction, stating: "Participation of the appellant's wife in the offense is immaterial to the question presented, which is whether the government presented legally sufficient evidence at trial to sustain the conviction."
While a service member cannot count on a spouse's consent to defeat an adultery charge, it could be beaten by showing the sexual affair that grew out of the open marriage was not open or notorious. In the 2012 case U.S. v. Gemayel A. Jones, the U.S. Army Court of Criminal Appeals noted that "although open and notorious conduct may be service discrediting, wholly private conduct is not generally service discrediting."
In that case, the court set aside an adultery specification, finding that the adulterous activities between Jones, an Army specialist, and another junior enlisted soldier who was not his wife, did not have "a divisive or detrimental impact on their units" and there was insufficient evidence showing their relationship was open or notorious.
Troops charged with adultery should consult with an experienced military law attorney. Depending on the circumstances, an attorney could show the service member did not have sexual intercourse with someone who was not his or her spouse or who was married to another, or show that the conduct was not service discrediting or prejudicial to good order and discipline.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
