A new phone app claims it creates a legally-binding contract between two people consenting to have sex, but will it be enough to prevent a uniformed member of the military from being charged with Conduct Unbecoming an Officer and a Gentleman in the eyes of military law?

The app is called LegalFling. One person sends a request through the app to the other, asking for consent to have sex. If the other person accepts the request, the app creates what it considers to be a legally-binding agreement. The contract can be terminated at any time by either person.

To date, LegalFling is not available on the two main phone app stores in the United States – Apple and Google. If it does become available and does what it claims to do, Americans may rush to download and use the app, especially with sexual harassment and sexual abuse claims on the rise. This group will undoubtedly include military servicemen and servicewomen.

While LegalFling may offer a level of civilian legal protection for people looking to have sexual relations, it may not provide complete legal protection for military personnel. The act of having sex may have been consensual, but it doesn’t necessarily absolve a uniformed serviceman or servicewoman from being charged with Conduct Unbecoming an Officer and a Gentleman. They would only be absolved if they were living up to the high moral standards of the United States Armed Services when they asked to have or consented to have sex with a partner.

For instance, let’s say a Navy sailor meets a young woman at a bar off base. Each of them have a few beers, and then the sailor asks the woman if she wants to have sex with him. They each use LegalFling to create the contract between them, and they leave to have sex. Neither of them terminates the contract afterwards.

Does the sailor get into trouble when he returns to the base? The answer is yes. Though the sailor did have consensual sex, he violated Article 133 of the Uniform Code of Military Justice because he was drunk in public while in uniform. If charged with Conduct Unbecoming an Officer and a Gentleman, the sailor could face dismissal, forfeiture of all pay and allowances and confinement for a period not in excess of that authorized for a similar offense in the UCMJ, or for one year if there isn’t an analogous offense.

In another scenario, two Army officers use LegalFling to agree to have consensual sex with each other. One of them decides to tape their sexual encounter, unbeknownst to the other one. Later, that person uploads the video to a computer and then shares it with some friends. Soon, half of the base has seen the video.

Not only would this violate Article 133 of the UCMJ, but it would also violate the terms of the LegalFling contract the two officers agreed to. Thus, the officer who taped and shared the video would be subject to both military court proceedings and a civil lawsuit.

Using LegalFling itself does not constitute Conduct Unbecoming an Officer and a Gentleman, so long as the service member utilizing the app is behaving in a manner consistent with the high moral standards associated with the uniform. If the service member is acting honestly, decently and within the scope of the law when using the app to gain permission to have sex with a consenting adult, there is no reason to charge the person with Conduct Unbecoming an Officer and a Gentleman. If the service member lied to the other to give their consent through the app, if alcohol or drugs impaired one or both parties’ decision to consent, or if the other person withdraws consent through the app before or after the sexual act takes place, Conduct Unbecoming an Officer and a Gentleman can be established.

What’s more, LegalFling can be used as evidence in court cases because it is supposed to create a binding contract. So if a service member uses the app, the prosecution can use that as evidence against him or her. Again, though, it would be a violation of Article 133 only if it can be proven that the service member exhibited poor moral judgment in association with the decision to use the app.

It’s too soon to tell if LegalFling will be available on the most popular smart phone app stores, but if it is, service members should be aware of what the software promotes and decide for themselves whether they should use it. They could be risking a charge of Conduct Unbecoming an Officer and a Gentleman.

Sean C. Timmons, Esq. is the Managing Partner of Tully Rinckey PLLC’s Houston office. Mr. Timmons is an experienced military law attorney, having spent several years serving the United States Army Judge Advocate General’s (JAG) Corps.