Issues pertaining to sexual conduct involving adultery, internet sex crime, and other acts of alleged or purported sexual misconduct are taken very seriously in the military. While certain offenses may seem harmless enough, service members that find themselves accused of any of these risk facing a prompt court-martial or administrative separation (ADSEP) from the military. However, with the private and personal nature of these acts, there are many different circumstances that must be proven in order to actually be punished by the government under Article 134 UCMJ. If you find yourself in the position of being accused of extramarital sexual conduct or an internet sex crime, it is paramount that you review and address the concerns in Article 134 in order to try to save your career and reputation.

The reason the military takes the issue of extramarital sexual conduct so serious is twofold; the military wants to maintain stringent good order and discipline amongst service members, and to make sure your actions do not tarnish your branch and the reputation of the military in general. There are three main points that must be proven in order for alleged events to be punishable by the government for adultery under Article 134 UCMJ, those being:

• That the accused wrongfully engaged in extramarital conduct with a certain person;
• That, at the time, the accused knew that the accused or the other person was married to someone else; and
• That, under the circumstances, the conduct of the accused was either:
  • (i) to the prejudice of good order and discipline in the armed forces;
  • (ii) was of a nature to bring discredit upon the armed forces; or
  • (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Only by proving all three of these points completely—or proving what’s called the “terminal element”—can there be any action taken against you. If you do find yourself in the position of being accused or charged with any extramarital sexual misconduct, it is important that you know how to defend yourself. The consequences of being found guilty are more severe than what you would receive in a civilian court for adultery. These punishments can range from confinement to forfeiture of pay and allowances or a Dishonorable Discharge in the most severe cases.

Alleged adultery isn’t the only issue that has caused problems regarding sexual activity in the military. As service members continue to spend more time online, there has been an increase in the misuse of social media platforms, legal pornographic websites, and dating apps. While there is nothing barring a service member from enjoying these responsibly, if you engage in any unsavory activity—such as pursuing child pornography—the military will come down hard. Falling under the category as “internet sex crime”, if you are caught in possession of child pornography (CP)—even if it is just the visual depiction of a minor—the maximum punishment for these kinds of offenses are very serious. They usually include 10+ years in confinement with a potential for a dishonorable discharge and a mandatory sex offender list registry.

There are a few things that will help mitigate the Government’s concerns and help reduce, if not eliminate, any charges against you. Providing evidence that your actions—extramarital sexual conduct or internet sex crime—were done under a false assumption or by accident can help you make a case for yourself. We have had many clients who were unaware that their sexual relationship partners were married, and we helped them to prove that they had a reasonable belief that their partner was divorced or legally separated. By establishing your honest belief otherwise, the burden then is shifted to the government to prove differently, which is significantly harder. Similarly for issues revolving around CP, you have a better chance of avoiding punishment and saving your reputation if you are able to provide evidence demonstrating that the acquisition of it was either not by choice or that you were not aware that it contained this explicit content. There are many ways to establish this, and we have assisted many clients that found themselves in dire situations to prove their innocence.

So when it comes to your sexual activity in the military, it is important that you follow proper prudent practices as to avoid disgracing both yourself and your branch. However, if you do find yourself facing an accusation, being able to advocate efficiently and aggressively for yourself may be the key deciding factor between facing a premature termination of your military career and continuing on until an honorable separation or retirement.

As Managing Partner of Tully Rinckey PLLC’s Houston office, Sean Timmons is a valuable asset to Tully Rinckey military law practice. Having served his country honorably at the largest military installation in the world in Fort Hood, Texas as a Judge Advocate, Sean is an aggressive and tenacious advocate for all service members facing legal issues. He is able to pull from his significant and diverse experience as an active duty attorney in the Army JAG Corps, and as a civilian military law attorney, he forcefully and effectively represents service members in both administrative and criminal proceedings. He can be reached at info@tullylegal.com or at (832)-241-5888.