3–62–1. ADULTERY (ARTICLE 134) (1) That (state the ... - JustAnswer

3–62–1. ADULTERY (ARTICLE 134)
a. MAXIMUM PUNISHMENT: DD, TF, 1 year, E-1.
b. MODEL SPECIFICATION:
In that __________ (personal jurisdiction data), __________, (a married man/a married woman), did, (at/on
b o a r d — l o c a t i o n ) , o n o r a b o u t _ _ _ _ _ _ _ _ _ _ , w r o n g f u l l y h a v e s e x u a l i n t e r c o u r s e w i t h _ _ _ _ _ _ _ _ _ _ , a
(married) man/woman not her husband/his wife.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused wrongfully had
sexual intercourse with (state the name of the (man) (woman) alleged);
(2) That, at the time, (the accused was married to another) (and) (state
the name of the (man) (woman) alleged) was married to another); and
(3) That, under the circumstances, the conduct of the accused 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.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
C o n d u c t p r e j u d i c i a l t o g o o d o r d e r a n d d i s c i p l i n e i s c o n d u c t w h i c h
c a u s e s a r e a s o n a b l y d i r e c t a n d o b v i o u s i n j u r y t o g o o d o r d e r a n d
discipline. Service discrediting conduct is conduct which tends to harm
the reputation of the service or lower it in public esteem.
“Sexual intercourse” is any penetration, however slight, of the female
sex organ by the penis. An ejaculation is not required.
NOTE 1: Lack of penetration in issue. If lack of penetration is in issue, the military judge
should further define what is meant by the female sex organ. The instruction below may be
helpful. See also United States v. Williams, 25 M.J. 854 (A.F.C.M.R.), pet. denied, 27 M.J. 166
(1988) and United States v. Tu, 30 M.J. 587 (A.C.M.R. 1990).
The “female sex organ” includes not only the vagina, which is the canal
that connects the uterus to the external opening of the genital canal,
but also the external genital organs including the labia majora and the
labia minora. “Labia” is the Latin and medically correct term for “lips.”
NOTE 2: Prejudicial or service discrediting nature of the offense. To constitute an offense
under the Uniform Code of Military Justice, the adultery must either be directly prejudicial
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ARTICLE 134
to good order and discipline or service discrediting. When this element is in issue, the
following instruction should be given:
Not every act of adultery constitutes an offense under the Uniform
Code of Military Justice. To constitute an offense, the government
must prove beyond a reasonable doubt that the accused’s adultery
was either directly prejudicial to good order and discipline or service
discrediting
"Conduct prejudicial to good order and discipline" includes adultery that
h a s a n o b v i o u s a n d m e a s u r a b l y d i v i s i v e e f f e c t o n t h e d i s c i p l i n e ,
morale, or cohesion of a military unit or organization, or that has a
clearly detrimental impact on the authority, stature, or esteem of a
servicemember. "Service discrediting" conduct includes adultery that
has a tendency, because of its open or notorious nature, to bring the
service into disrepute, to make it subject to public ridicule, or to lower it
in public esteem.
Under some circumstances, adultery may not be prejudicial to good
order and discipline but, nonetheless, may be service discrediting, as I
h a v e e x p l a i n e d t h o s e t e r m s t o y o u . L i k e w i s e , d e p e n d i n g o n t h e
circumstances, adultery can be prejudicial to good order and discipline
but not be service discrediting.
In determining whether the alleged adultery in this case is prejudicial to
good order and discipline or is of a nature to bring discredit upon the
armed forces, you should consider all the facts and circumstances
offered on this issue, including, but not limited to:
(the accused’s marital status, military rank, grade, or position);
( t h e c o - a c t o r ’ s m a r i t a l s t a t u s , m i l i t a r y r a n k , g r a d e , o r p o s i t i o n , o r
relationship to the armed forces);
(the military status of the accused’s spouse or the co-actor’s spouse,
or their relationship to the armed forces);
(the impact, if any, of the adulterous relationship on the ability of the
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accused, the co-actor, or the spouse of either to perform their duties in
support of the armed forces)
(the misuse, if any, of government time and resources to facilitate the
commission of the adultery);
(whether the adultery persisted despite counseling or orders to desist;
t h e f l a g r a n c y o f t h e a d u l t e r o u s r e l a t i o n s h i p , s u c h a s w h e t h e r a n y
notoriety ensued; and whether the adultery was accompanied by other
violations of the UCMJ);
(the impact of the adultery, if any, on the units or organizations of the
accused, the co-actor or the spouse of either of them, such as a
d e t r i m e n t a l e f f e c t o n u n i t o r o r g a n i z a t i o n m o r a l e , t e a m w o r k , a n d
efficiency);
(whether the accused or co-actor was legally separated);
(whether the adultery involves an ongoing or recent relationship or is
remote in time);
(where the adultery occurred)
(who may have known of the adultery)
(the nature, if any, of the official and personal relationship between the
accused and (name of co-actor))
(________________)
NOTE 3: Marriage. If the evidence raises the issue whether either the accused or the coactor
are actually married, instruct as follows:
A marriage exists until it is dissolved in accordance with the laws of a
competent state or foreign jurisdiction.
NOTE 4: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), may be
applicable as to the manner of proof that the accused knew of the marital status of his/her
co-actor or the prejudicial or service discrediting nature or effect of the conduct.
NOTE 5: Mistake of fact. If the evidence raises the issue that the accused may have
mistakenly believed either that the accused and the co-actor were both unmarried or that
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