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Marine Corps Base Camp Pendleton

"The West Coast's Premier Fleet Marine Force Training Base"

Adultery: tough to prove

By Cpl. Danielle M. Bacon | | August 23, 2002

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A Marine and another Marine's wife have been intimate while her husband is deployed. They're meeting off base, and it doesn't seem to affect anyone in the command. But somehow, her husband finds out. Can the Marine be charged with adultery? Maybe not. In fact, few Marines are charged with just adultery. "Adultery is hard to prove. It has to affect the command or discredit the service. If no one knows about it, then it is harder to prove," said Capt. Michael Weston, a special assistant U.S attorney.The court needs proof of sexual intercourse and that the suspect knew he or she was committing adultery."It just means that the unmarried person has to know that the person is married for that person to be charged," Weston said.Changes made May 15 to the Uniform Code of Military Justice shape courtroom procedures and clarify some regulations to help answer questions about adultery.Offenses such as rape or indecent acts often accompany adultery."It is very rare that we have charged someone with just adultery," Weston said. "It's normally joined with some other offense." According to military law, three points must be proved to convict a defendant: - Did they have sexual relations? - Was one of the involved married?- Is the act discrediting to the armed forces or damaging to good order and good discipline? These questions are posing even more questions for lawyers.According to clarifications published in the Federal Register, nine factors should be considered before someone can be charged or ultimately convicted in a military court for adultery.What is the marital status, military rank, grade or position of the people involved? "This is pretty explanatory," Weston said. "It would be relevant that the spouse and the accused are Marines."Does the adulterous relationship impact the ability of any of the three to perform their duties to support the armed forces?"This is a situation where two Marines in the same unit are having an affair, or if one of the involved was a subordinate of the other," Weston said.Was there misuse of government time and resources to facilitate the conduct?"Well, if two Marines are sneaking off to a broom closet during lunch, or if he used a government vehicle to see his girlfriend, this would be misuse," Weston said. "For example, there was a case where a guy would go to his girlfriend's house every time he had duty, using the government van."Did the conduct persist despite counseling or orders to stop? Was the relationship flagrant? Was the act accompanied by other violations of the UCMJ?"For example, a Marine is on deployment and is messing around with a local girl and everyone knows he is married. More than likely, his command will tell him to stop and act like a married person," Weston said. "A flagrant relationship let's say there was a Marine who was married to a girl in another state. He gets into a relationship with a girl here, her family knows he is a Marine, and they find out he is already married, that would be flagrant." Was the accused or his lover legally separated?"There are no exceptions for separation in the book, but there are some gray areas," said Weston. "We normally wouldn't convict someone who is waiting for a divorce and having a relationship with someone else, but we might if that person was married just for the money."Was the adulterous misconduct a one-time affair or ongoing? Was it recent or was it a long time ago?"Let's say a Marine cheats on his wife and tells her. They work it out, and then three years down the road they are getting a divorce. That's probably a case that wouldn't be prosecuted," Weston said.These factors are not set in stone. They are guidelines for a judge or jury.In most cases, the changes to the UCMJ already were being followed before they took effect."The changes that were made - most people already followed," Weston said. "They are common-sense changes."
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