Should Adultery Be The Military's Business?

Noah Feldman, Bloomberg: Adultery Is None of the Military's Business

Is the military’s law making adultery a crime unconstitutional? So says a colonel who’s been charged with violating it. His motives aren’t great -- he’s trying to deflect attention from more serious charges, including rape. But he may be right. The law arguably discriminates by criminalizing only heterosexual adultery. And even if that vestigial aspect of the law could be fixed, there’s another problem: the anti-adultery law violates the fundamental right of privacy, which should extend even to armed-forces personnel, whose constitutional rights are limited by military necessity.

The issue has arisen in the context of a court-martial against U.S. Air Force Colonel Marcus Caughey. He’s been charged with rape, assault, taking a sexual selfie -- and six counts of adultery. Under the Uniform Code of Military Justice, which governs uniformed personnel, adultery is a crime. Military prosecutors typically add the charge when a defendant is accused of other crimes. It gives them extra leverage, but also provides room for the factfinder, whether judge or jury, to reach a compromise verdict and find the defendant guilty of adultery even if it doesn’t find him guilty of rape or assault.

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WNU Editor: It is hard to make the case to enforce this law when even the Commander in Chief is caught philandering with a young intern in the Oval Office.