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Practice Notes
I Do, But Only in a Jurisdiction with Legal Separation
A Proposed Remedy for the Flawed Affirmative Defense in Extramarital Sexual Conduct Cases
By Major Oluwaseye (Mary) Awoniyi
The amendments to the 2019 Uniform Code of Military Justice (UCMJ) not only broadened the crime of adultery to extramarital sexual conduct,1 but also added a second defense to the offense. In addition to the mistake-of-fact defense,2 legal separation is now an affirmative defense to extramarital sexual conduct.3 The legal separation must be “by order of a court of competent jurisdiction.”4 However, because legal separation is not recognized in every jurisdiction, not every Service member getting a divorce can claim the defense.
Location is dispositive in a Service member’s ability to assert legal separation as an affirmative defense because legal separation is not an option in every jurisdiction. A Service member stationed at Fort Campbell, Kentucky, can assert the defense,5
but a Service member stationed at Fort Bliss, Texas, cannot.6
Service members generally have little control over where the military
sends them.7 Therefore, the availability of the defense is largely out of their hands if they are pursuing separation in a state that does not have legal separation proceedings. The end result is that some commanders can take administrative or UCMJ action for the same behavior that other commanders cannot. A simple remedy to this inconsistency is to permit a notarized separation agreement,8 in lieu of a court order, as evidence of a Service member’s separation from their spouse. This amendment is necessary for an equal application of the offense and availability of defenses across formations.
Unequal Treatment Under the Law
Legal separation proceedings are not available in all states. Presently, the following ten states do not have legal separations: Florida, Georgia, Iowa, Maryland, Michigan, Mississippi, Pennsylvania, South Carolina, Texas, and Virginia.9 These ten states house 109 bases from all military branches.10 The list includes the third-most populated military base in the world—Fort Hood, Texas—with a population of approximately 227,000 (including 35,000 active duty Service members) and the fifth-most populated base in the world—Fort Benning, Georgia—with a population of approximately 105,887 (including 22,778 active duty Service members).11 Service members can also be stationed in multiple overseas locations where legal separation proceedings are unavailable, and thus they too may be prevented from asserting the defense.
For the affirmative defense of legal separation to apply, the marital status of both parties engaging in the conduct is significant.12 Therefore, even if a Service member is legally separated, the command may still take action against them for extramarital sexual conduct if the other person is married and not legally separated.13 The following scenario demonstrates the arbitrary consequence of requiring a court-ordered legal separation: Service members A and B are in a consensual sexual relationship. They are both married to other people, but they are estranged from their spouses. Each is pursuing a divorce in the state where the spouse resides. Service member A’s spouse lives in Kentucky. Service member A filed for, and received, a legal separation through a Kentucky court. Service member B’s spouse lives in Texas. Despite Service member B’s efforts, she cannot get a legal separation from her spouse because Texas does not have legal separation proceedings.
As a result, neither Service member A nor Service member B may claim legal separation as a defense to extramarital sexual conduct. Although Service member A is in-fact legally separated, as evidenced by a court order, he cannot assert the defense because he is in a relationship with a Service member whose spouse is unable to get a legal separation because of the spouse’s state of residency. Service member A has no control over where Service member B’s spouse lives. Nevertheless, the command has the authority to punish Service member A for something that would not be a crime if Service member B’s spouse lived in one of the forty states that have legal separation proceedings.
A Proposed Remedy to Potentially Dire Consequences
Due to the unequal application of the defense, Congress should amend the statute to also permit a notarized separation agreement to suffice as an alternative to a legal separation in cases where a court order is not possible. A separation agreement demonstrates that the Service member and spouse have taken a substantial step past a mere intent to separate. Current regulations demonstrate that mere physical separation is sufficient to trigger a Service member’s financial support obligations to their spouse.14 Notably, a separation agreement is not even a prerequisite for spousal or child support.15 However, separation agreements require the signature of both parties, usually involve attorneys, and address significant terms such as child and spousal support. Separation agreements may be drafted and notarized at a local client legal services (CLS) office. Even if a Service member is not co-located with a CLS office, a geographically-separated attorney may still assist in advising and drafting the agreement.16 Consequently, it is reasonable that something less than a court order can sufficiently demonstrate that a Service member is separated from their spouse.
This amendment would rectify a disparity that now exists in the law. The potential ramifications of this disparity are vast. The maximum punishment for extramarital conduct is a dishonorable discharge, one-year confinement, and total forfeiture of pay.17 Generally, Service members are not prosecuted solely for extramarital sexual conduct.18 Rather, it is an offense sometimes added to the charge sheet to paint a broader picture of the accused’s misconduct, specifically in sexual assault cases.19 This has proven to be detrimental to an accused in a “close-call” sexual assault case where a panel acquits the accused of the sexual assault, but finds them guilty of the more easily provable extramarital conduct instead. The result is the panel’s attempt to somehow “split the baby” on these cases—cases where the members acquit the accused of the sexual offense, but impose a harsh sentence because there were enough bad facts to lead the members to believe something happened in that room, even if they are not sure what.20
Even outside of the court-martial realm, nonjudicial and administrative punishments can still have dire consequences for a Service member. For example, punishment imposed under Article 15, UCMJ,21 and permanently filed memorandums of reprimand can trigger mandatory separation initiation22 for an enlisted member or a Human Resources Command-mandated separation initiation for an officer.23 The potential consequences are far too severe for Congress to permit the preservation of an unreasonable, location-based defense. A court order should not be necessary for an affirmative defense to the crime of extramarital sexual conduct.
Conclusion
A notarized separation agreement should be sufficient to defend against the charge of extramarital sexual conduct. Congress intended to provide a defense for the offense;24 however, the manner in which the defense is currently drafted does not equally apply across the formation. The need to ensure uniform application of the law and equal due process outweighs the benefit of criminalizing the behavior. It is only through an amendment to this article that both the punishment of, and defense against, extramarital sexual conduct can equally affect Service members worldwide. TAL
MAJ Awoniyi is the chief of military justice for the 25th Infantry Division at Schofield Barracks, Hawaii.
Notes
1. The elements of adultery under the 2016 Manual for Courts-Martial (MCM) were
(1) That the accused wrongfully had sexual intercourse with a certain person; (2) that, at the time, the accused or the other person was married to someone else; 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.
Manual for Courts-Martial, United Statespt. IV, ¶ 62 (2016) [hereinafter 2016 MCM]. The elements of extramarital conduct under the 2019 version of the MCM are
(1) That the accused wrongfully engaged in extramarital conduct [involving genital, oral, or anal sexual intercourse] with a certain person; 2) That, at the time, the accused knew that the accused or the other person was married to someone else; and 3) 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.
Manual for Courts-Martial, United States
pt. IV, ¶ 99b (2019) [hereinafter 2019 MCM].
2.According to the 2019 Manual for Courts-Martial,
A defense of mistake of fact exists if the accused had an honest and reasonable belief either that the accused and the co-actor were both unmarried or legally separated, or that they were lawfully married to each other. If this defense is raised by the evidence, then the burden of proof is upon the United States to establish that the accused’s belief was unreasonable or not honest.
2019 MCM, supra note 1, pt. IV, ¶ 99c(5).
3. Id. pt. IV, ¶ 99c(4).
4. Id.
5. Pursuant to Kentucky law, a Kentucky court may enter a decree of separation. Ky. Rev. Stat. Ann. § 403.140(2) (LexisNexis 1972).
6. See Texas Does Not Have Legal Separation. What Options Are
There?, TexasLawHelp.Org, http://texaslawhelp.org/article/texas-does-not-have-legal-separation-what-options-are-there (Dec. 29, 2021).
7. While Service members have control over their state of residency and where they get married, the typical Service member does not base their decision on where to get married on whether the state has legal separation proceedings available.
8. Army Regulation 608-99 defines a support agreement as
any written document (such as a separation agreement or property settlement agreement, a letter, email, or a series of letters or emails) evidencing an intent to create a binding financial support agreement. Ordinarily, informal forms of written communication (for example, text messages and social media posts) do not demonstrate an intent to create a binding agreement.
U.S. Dep’t of Army, Reg. 608-99, Family Support, Child Custody, and Parentagepara. 2-3b (13 Nov. 2020) [hereinafter AR 608-99].
9. Legal Separation: U.S. Divorce Center Law,
HG, https://www.hg.org/divorce-legal-separation.html#1 (last visited Dec.
13, 2021).
10. Mil. Bases, http://militarybases.com (last visited Dec. 13, 2021).
11. The World’s Biggest Military Bases, Army Tech., https://www.army-technology.com/features/feature-largest-military-bases-world-united-states/ (Dec. 10, 2019, 4:13 PM).
12. 2019 MCM, supra note 1, art. 134 analysis, at A17-17.
13. Id. While the Service member is legally separated, he may still be punished for extramarital sexual conduct because of his co-actor’s marital status.
14. E.g., AR 608-99, supra note 8, para. 2-1; U.S. Dep’t of Air Force, Instr. 36-2906, Personal Financial
Responsibility
para. 3.2.5 (13 May 2021).
15. AR 608-99, supra note 8, para. 2-3.
16. This assertion is based on the author’s professional experiences as the command judge advocate at Camp Darby, Italy, from 16 June 2015 to 12 July 2017, where she provided legal services to Service members located in Vicenza, Italy, and referred Service members to Germany for telephonic legal services. This has proved to be even more vital in the age of COVID-19.
17. 2019 MCM, supra note 1, app. 12, at A12-8.
18. This assertion is based on the author’s recent professional experiences, including her tour at the Defense Appellate Division from 13 July 2017 to 4 June 2019, and as the chief, military justice, for the 25th Infantry Division from 29 July 2021 to present.
19. Id.
20. Id.
21. 2019 MCM, supra note 1, pt. V, ¶ 5.b.
22. These actions can be based on a Soldier reaching a retention control point because of a reduction in rank or by the Qualitative Management Program being triggered by the bad paper in the Soldier’s Army Military Human Resource Record. See U.S. Dep’t of Army, Reg. 601-280, Army Retention Program
para. 3-15d (16 June 2021);
U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Administrative
Separations
para. 16-11 (28 June 2021).
23. U.S. Dep’t of Army, Reg. 600-8-24, Officer Transfer and
Discharges
para. 4-2c (8 Feb. 2020).
24. 2019 MCM, supra note 1, art. 134 analysis, at A17-17.