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Judith Miller
General Counsel
Department of Defense
1600 Defense Pentagon
Washington, D.C. 20301-1600
Dear Ms. Miller:
Thank you for your letter of July 3, 1997. The National Women’s Law Center appreciates the opportunity to respond to your request for comments on improvements that might be made to existing guidance relating to the offense of adultery under the Uniform Code of Military Justice (UCMJ), for consideration by the Department of Defense senior review panel. The Center also appreciates the opportunity to comment upon whether the Manual for Courts-Martial’s provisions on disposition of offenses are adequate to ensure fairness. We have considered the existing guidelines and provisions, and make the following recommendations:
These recommendations are explained in greater detail below.
Adultery and the Armed Services
Currently, to determine whether an act of adultery is cognizable under Article 134 of the Uniform Code of Military Justice (UCMJ), a decision maker must determine whether the act discredited the armed services or prejudiced good order and discipline. Under current regulations and case law, however, the precise meaning of those standards is murky, and as a result they offer inadequate guidance to both decision makers and potential offenders. The lack of clarity also opens the door to inequitable application of the standards, allowing some offenders to escape punishment for activity that leads to sanctions for other offenders. At the least, standards that are not clear may lead to the perception that treatment of adultery offenders is not evenhanded.
1. Existing Department of Defense Guidance
Although adultery is not mentioned in the UCMJ, Paragraph 62 of the Manual for Courts-Martial specifically states that adultery is included within Article 134 if “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.” Part IV, para. 62(b)(3). The Manual offers only limited guidance in defining “discredit” and “prejudice,” however. According to Paragraph 60 of the Manual, discrediting the armed forces means engaging in conduct that has the tendency to bring the service into disrepute or lower it in public esteem. MCM, 1995, Part IV, para. 60(c)(3). An act in violation of a local civil law or a foreign law may be punished under Article 134 if it is of a nature to discredit the service. Id.
According to the Manual, behavior is included within “the prejudice to good order and discipline” category only if the relevant acts result in prejudice that is reasonably direct and palpable. Part IV, para. 60(c)(2)(a). An act that violates local civil law or a foreign law may be punished under Article 134 if it prejudices good order and discipline in the armed forces. Id.
The Military Judges’ Benchbook provides a further gloss on these standards. The Benchbook explicitly states that not every act of adultery is prejudicial to good order and discipline or service discrediting. Paragraph 3-62-1 (citing United States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991)). (This assertion has appeared in case law as well: for instance, United States v. Hickson, 22 M.J. 146, 149 (C.M.A. 1986) affirms that Article 134 “is not intended to regulate the wholly private moral conduct of an individual.”) According to the Benchbook, the judge’s instructions should state that the government must show, either by direct evidence or inference, that the conduct was prejudicial or discrediting. Id. The sample instructions state that in resolving the issue all facts and circumstance should be considered, including where the conduct occurred, the nature of the official and personal relationship between the accused and the alleged sex partner, who may have known about the conduct, the effect if any upon the accused or the alleged partner’s ability to perform his or her duties, and the effect the conduct may have had upon the morale or efficiency of the unit of the accused or the subordinates of the accused. Id.
The Benchbook makes no distinction between the “discrediting” standard and the “prejudice” standard. As a result, the impact of some of the listed factors is ambiguous. For instance, one factor to be considered is where the alleged conduct occurred. If the conduct occurred off-base, it might be more likely to be known to the public and thus more likely to discredit the military. If it occurred on-base, it might be more likely to be known by the accused’s unit or subordinates, and so more likely to prejudice good order. The instructions do not attempt to clarify this difficulty of application.
2. Decriminalization
The National Women’s Law Center urges reconsideration of whether adultery should be criminalized at all. Currently, relatively few persons in the military are prosecuted for adultery. Classifying adultery as criminal but generally ignoring it leads to disrespect for the law and can affect the ability to deter far more serious transgressions. As well, the severe penalties for adultery under Article 134 may actually tend to discourage complaints by persons who feel that unit efficiency is being compromised by adulterous behavior, but do not feel that this effect is extreme enough to merit imposition of such harsh penalties. If sanctions were more appropriate to the conduct, such complaints might be brought and addressed to the improvement of military efficiency. Adultery can in most circumstances best be handled through noncriminal means.(1)
3. Defining Proscribed Adultery
Whether sanctions are criminal or noncriminal, the National Women’s Law Center recommends that only adulterous conduct negatively affecting military job performance or unit efficiency be proscribed. The proposed standard would not ask whether the conduct was of a nature to bring discredit upon the armed forces. Job performance would be the only determinant.
a. The Current “Discrediting” Standard in Application and Its Flaws
In at least some cases applying the discrediting standard, judges have first asked whether the behavior and the military status of the actor were known to members of the public. In United States v. Perez, the court stated, “Civilians must be aware of the behavior and the military status of the offender,” articulating what appears to be a clear rule. 33 M.J. 1050, 1054 (A.C.M.R. 1991). This language also appears in United States v. Green, 39 M.J. 606, 609 (A.C.M.R. 1994).(2) If the public was not aware of the behavior or the offender’s military affiliation, the behavior is not discrediting and the inquiry ends.
If the public is aware of the behavior and the offender’s military status, the next question under the cases appears to be whether the behavior violated local law or community standards. Perez, 33 M.J. at 1054. What constitutes a violation, however, is not clearly defined. In Green, the court, deciding that an encounter between a civilian and a service member separated from his wife was not discrediting, noted without analysis that there was no indication the behavior violated local law or community standards. Green, 39 M.J. at 609. The court then stated, “Indeed, it is our sense that imposition of punishment for adultery has become alien to the civilian’s concept of criminal law.” Id. It is not clear whether this observation is meant to indicate a conclusion or presumption that adulterous activity is generally not discrediting to the services, or whether the question should still be answered on a case-by-case basis, depending upon the particular standards and laws of the local community. If the latter, it is not clear how the standards of a particular community are to be defined or determined, or even how the boundaries of the community itself are to be defined or determined.(3)
The local law and community standards element of the “discrediting” inquiry is not a helpful proxy for determining whether the behavior indeed discredited the armed services. Laws concerning adultery are seldom applied or enforced in civilian communities, and as a result the presence of such a law on the books is not a good marker for whether members of the public would find conduct in violation of that law discrediting. Community standards might seem a more promising tool for determining whether the behavior discredited the armed services. In practice, however, the articulation of these standards would most often be difficult and ultimately arbitrary. Similar difficulties arise in defining the boundaries of communities. “Community standards” is thus an unworkable instrument.
Application of the current discrediting standard raises other potential problems. First, if in fact the question of whether adulterous behavior discredits the military is to be answered by looking to the law and standards of a local community, under military law criminal liability for adultery would vary according to where that activity took place. Such a variation undercuts the idea of military law providing a single code of conduct for all service members. Second, the lack of clarity in the standard permits favoritism and bias or the perception of favoritism and bias in sanctions for adultery. Both of these flaws also raise the especially invidious possibility of different standards being applied to service members of different sexes or races, either as a result of favoritism or as a result of community standards that find adultery less acceptable when, for instance, committed by women or by African-Americans. Such potential for application of sex-based or race-based multiple standards is unacceptable.
b. The Center’s Proposals Regarding the “Discrediting” Standard
Because of the difficulties in applying the discrediting standard in an objective and consistent manner to all offenders, the National Women’s Law Center proposes that the Department of Defense remove this element from its definition of proscribed adultery. Discarding this element is particularly appropriate given most civilians’ skepticism of criminal punishment for adultery. In light of this general public opinion, if a formal “discrediting” element of the adultery offense is to be retained, the Department should at least explicitly state a strong presumption that in almost all circumstances adultery does not discredit the armed services in public esteem.
If the discrediting standard survives and such a presumption is not adopted, the National Women’s Law Center recommends formal affirmation and adoption by DoD of the knowledge prerequisite that the cases have articulated. That is, for adultery to discredit the armed services, both the behavior and the military status of the actor must be known to members of the public. Otherwise, the inquiry ends.
In cases where the conduct and the military status of the actor are known to the public, DoD guidance should make clear that adultery would only be found discrediting if the government shows that the behavior actually brought the armed services into disrepute among those members of the public with knowledge of the activity. Moreover, fairness would seem to demand that a significant number of persons’ opinions of the military be substantially and negatively affected as a result of the behavior. A change in the opinions of one or two individuals would not be sufficient to categorize the behavior as discrediting, nor would behavior that had only a trivial effect upon public esteem.
Under the Center’s proposed standard, the Defense Department would expressly abandon the local law/community standards formulation used in the case law, standardizing the code of military conduct required of service members, regardless of their location. The resulting unified, articulated standard would clarify the conduct prohibited by Article 134 (or otherwise proscribed) and so reduce the actuality and perception of unfair application of sanctions. As well, it would diminish the potential for application of race- and sex-based standards of behavior.
c. The Current “Prejudice” Standard and Its Flaws
While the question of discredit goes to the effects of the adulterous behavior upon civilian perceptions of the participants and the military, the question of prejudice focuses upon the effects of the conduct within the military unit. A preliminary search of case law suggests it has failed to give definite contours to the “prejudice to good order and discipline” standard.
In United States v. Green, for instance, adulterous conduct was found to prejudice good order and discipline when it occurred in the barracks, “where other soldiers could see or find out about it.” Green, 39 M.J. at 610. In Green’s case, therefore, the adultery was found to be prejudicial in large part because other service members might know about it. The court stated without further analysis that a direct and obvious injury could be inferred from this potential knowledge: it would tend to reduce other soldiers’ confidence in Green’s integrity, leadership, and authority and Green’s example would make other soldiers less likely to conform to the rigors of military discipline. The court also noted that “[a]dultery is not . . . alien to the soldier’s concept of criminal law,” id. at 609, perhaps (though not explicitly) indicating that it is this sense of the criminality of adultery that creates the injury to prejudice and good order.
If Green means to apply this standard, the logic behind it seems circular: while not all acts of adultery are punishable under the UCMJ because not all acts of adultery prejudice good order and discipline, if the behavior could be known to other soldiers, it prejudices good order and discipline because other soldiers know that adultery is punishable under the UCMJ. Since adultery accusations often depend upon a fellow service member’s knowledge or suspicion of adulterous behavior, the standard potentially grows to include all cases of adultery in which a complaint is made by a service member, undermining the proposition that not every act of adultery is punishable under Article 134 and that Article 134 is not intended to regulate the wholly private moral conduct of an individual.
Green is also problematic in that it implies that demonstration of other service members’ actual knowledge of the behavior is not necessary to find the behavior prejudicial to those service members’ discipline and good order. In other words, in Green it seems enough that other soldiers “could . . . find out” about the behavior.(4) Clearly, such a standard is far too broad, allowing punishment for behavior which could not possibly in actual fact have prejudiced other soldiers’ good order and discipline since they were unaware of it. Nor does this broad standard find support in the language of the Manual or the Benchbook.
Finally, the court in Green not only does not require evidence of knowledge, but also does not require evidence that injury actually occurred. Again, this seems to contradict the Manual language, which requires “reasonably direct and palpable” prejudice. Although the Green court characterizes the prejudice that may be inferred from the behavior as “direct and obvious,” Green, 39 M.J. at 610, if the standard allows prejudice to be assumed without being shown it is largely meaningless.
d. The Center’s Proposal Regarding the “Prejudice” Standard
The National Women’s Law Center recommends that any adulterous conduct that does not prejudice good order and discipline be categorized as falling outside military proscription. The Center also urges DoD to adopt an explicit statement that adulterous behavior prejudices good order and discipline only when it actually and directly compromises military job performance or unit efficiency.
The requirements for meeting this standard should also be spelled out. The Manual should explicitly state that neither other soldiers’ knowledge of the adulterous conduct nor negative effects of that conduct upon other soldiers will be assumed in the absence of proof. If the conduct has not negatively affected the accused’s own job performance or (if in the military) the job performance of his or her alleged sex partner, spouse, or spouse of the alleged sex partner, other soldiers must actually know about the conduct for prejudice to occur.
Under the proposed prejudice standard, a nontrivial negative effect on the accused’s performance of his or her duties would bring the conduct within the purview of Article 134 (or, if adultery were decriminalized, would subject it to noncriminal sanctions). A nontrivial negative effect upon the job performance of the accused’s unit members, the accused’s subordinates, or (if serving in the military) the accused’s alleged sex partner, the accused’s spouse, or the partner’s spouse would also bring the behavior within the scope of military proscription. An actual, objective effect would need to be shown under this standard, rather than an amorphous change in feelings toward the accused. At a minimum, a clear statement by relevant service members that they or others have in fact lost respect for the accused and that this has resulted in less efficient performance by the unit or has affected the accused’s ability to perform within the unit would be necessary. Because the accused’s liability in these cases would turn on the reactions of second and third parties, if the job performance of an individual other than the accused was negatively affected as the result of an unreasonable and unpredictable reaction, the accused should not be held responsible.
The proposed job performance standard would continue to recognize the relevance of many of the factors currently considered in determining whether adulterous behavior is punishable under Article 134. It would refocus the inquiry, however, making clear that these factors matter only insofar as they actually affect the ability of relevant parties to carry out their duties. Issues such as the location of the activities, the nature of the relationship between the accused and his or her alleged sex partner, and the identity of those persons who know about the conduct might still affect the decision. They would do so not as independent factors of consideration, however, but only to the degree that they showed that unit efficiency or job performance was in fact affected. If, for instance, widespread knowledge of the accused’s adulterous activities reduced respect for the accused within his or her unit or among his or her subordinates to such a degree that the accused’s ability to work within the unit or to lead and command were affected, the behavior would be punishable under Article 134 or subject to appropriate noncriminal sanctions.
A job performance test offers several advantages. First, it is appropriate in that it makes clear that adultery is deleterious to military service only to the degree that it affects the ability of soldiers to carry out their jobs. The armed services are thus kept at a safe remove from the difficult and invasive position of moral arbiter of their members. Second, the test offers an objective standard for determining which adulterous acts fall under military proscription. Job performance offers a clear yardstick for deciding what behavior counts and what does not. Third, the performance standard offers some predictive value to potential offenders. While the effects of adulterous behavior upon the job performance of other service members may be difficult to predict perfectly, some sorts of behavior are clearly more likely to have an effect than others. For instance, discreet behavior will almost always be less likely to have an effect than open and notorious behavior. Fourth, a clearly articulated standard will promote consistent and fair application of the adultery restrictions by decision makers, reducing the possibilities for favoritism or perceptions of favoritism.
Disposing of Adultery and Other Sexual Misconduct and Equal Opportunity Offenses
Under the current Manual for Courts-Martial Rule 306, the authority to decide in what manner to investigate complaints and what ultimate action to take on complaints is usually lodged in the immediate commander. A commander may decide to take no action or to dismiss charges for an offense. Alternatively, a commander may take administrative action (for instance, reprimanding the accused or requiring counseling), may impose nonjudicial punishment under Article 15, may refer charges to a court-martial, or may forward the charges to another authority for disposition.
Usually, in cases in which more than administrative action appears warranted, commanders appoint someone in their chain of command to investigate the charges and recommend dispositions. They are required to appoint “an uninvolved, disinterested officer equivalent or higher in rank to the complainant and the accused.” Defense Equal Opportunity Council, Report of Task Force on Discrimination and Sexual Harassment, Vol. 1, at 33 (May 1995). When a complaint states an equal opportunity charge, the commander may turn to the installation’s equal opportunity (EO) advisor for recommendations. EO advisors are, however, usually prohibited by service policy from formally investigating a complaint. See id. Until the point at which charges are referred for court-martial, neither a complainant nor the accused has a right to a formal investigation performed by an individual outside the chain of command or to an independent decision maker.(5) If an individual disagrees with a decision made by the commander, the only recourse is to appeal up the chain of command.
Throughout all steps of this investigatory process, the commander enjoys wide discretion in decisions about what action to take on complaints and how ultimately to resolve charges. He or she also has broad discretion when making decisions about who to appoint to investigate the complaints and whether or where to seek advice.
The exercise of this discretion has been criticized in recent widely-publicized cases and, if news reports are correct, has been documented by separate investigations by the Army Inspector General’s Office and the Army Senior Review Panel, which are examining the services’ handling of sexual misconduct. According to the New York Times, these investigations have found “widespread incidence of discrimination by male commanders” and have revealed that “enforcement of rules against sexual misconduct by commanders varie[s] widely from base to base.” Eric Schmitt, Women in Army Face Wide Bias, 2 Inquiries Find, New York Times, July 31, 1997, at A1. These findings are consistent with the results of a 1995 Department of Defense Sexual Harassment survey, which found that although 90 percent of service members surveyed said they understand the complaint process for reporting sexual misconduct, Defense Manpower Data Center, Department of Defense 1995 Sexual Harassment Survey 23 (1996), only 24 percent of members who had experienced one or more incidents of sexual harassment or misconduct in the preceding year reported the incident that had the greatest effect on them to anyone, id. at 19. Of those service members who had experienced and reported an incident, one third were dissatisfied with the complaint process. Id. at 25.
The lack of a process for formal investigations outside the chain of command compromises investigation and decision making in cases not referred for court-martial in that it ultimately deprives commanders of the guidance they need to exercise discretion appropriately. These limitations are not specific to adultery complaints, but apply to other sorts of charges as well. Investigators are generally untrained. Usually appointed on an ad hoc basis, they often lack the ability to build expertise in the relevant issues and to spot larger patterns in complaints and behavior. An investigator in the commander’s chain of command may be motivated by a desire to please the commander or another superior, rather than a desire to find out the truth of the situation. As well, as the DoD data cited above suggest, the lack of an independent investigator makes some complainants hesitate to come forward because they lack confidence in the system.
In contrast, the investigatory process available to civilian employees of the Department of Defense avoids many of these pitfalls. The processes of investigation available for sexual harassment and other equal opportunity cases covered by Title VII’s prohibitions against discrimination are similar for all federal agencies. A civilian federal employee who believes he or she has been discriminated against must first contact the equal employment opportunity (EEO) counselor in his or agency. The counselor attempts to resolve the problem informally and advises the employee regarding the issues involved. (In this respect, the process is similar to that used for the informal resolution of charges against service members that are handled administratively.) If a resolution cannot be reached, the civilian employee may file a formal complaint with the agency’s EEO office. After the EEO office investigates the charges and the agency proposes a disposition of the charges, the employee has the right to request a formal hearing before an administrative law judge (ALJ). The ALJ is assigned by the EEOC, an independent agency, and so is independent of the agency employing the civilian. Following the hearing, the ALJ recommends a decision to the agency, which the agency head may adopt, modify, or reject. The civilian may appeal this final decision to the EEOC, or bring suit in federal court.
The National Women’s Law Center proposes the adoption of some elements of the civilian investigatory process for use in adultery cases as well as other sexual misconduct and equal opportunity cases.(6) Just as agencies depend on their EEO offices to investigate and recommend action on Title VII violations, Rule 306 should require the services to designate a position or office outside the chain of command to investigate complaints that are not handled administratively. This could be done without restricting the authority of the commander to make the ultimate decisions regarding disposition. Upon conclusion of the investigation, the investigating individual or body would make an official recommendation to the appropriate commander as to how to proceed. The commander would be free to take alternative action, but if he or she did not follow the recommendation of the investigator, he or she would be required to submit a written statement explaining this decision. This change in process could potentially be done with little or no increase in service personnel. A special unit of the legal office or the criminal investigating service could be designated, or the duties of equal opportunity advisors could be modified (and persons of higher rank chosen to be EOAs) to authorize them to conduct these investigations. If the investigator recommended that the case be referred for court-martial, and the commander agreed, the starting point for the investigatory agency would be the initial investigator’s findings and report, so that unnecessary duplication of efforts would not occur.
These proposed changes in the investigation process would have several salutary effects. Investigators outside the chain of command would be more likely to be independent and unbiased in their evaluations. With authority to investigate certain categories of charges centralized in a single person or office, that person or office would build a knowledge base about the relevant issues and would be able to identify patterns of charges and complaints at a single military installation, thus improving the efficiency and the skill with which they are addressed. The requirement that a commander who chooses not to follow the investigator’s recommendation provide a written explanation for his or her decision would promote fair and reasoned decision making, and should make the commander take the investigating officer’s opinions and recommendations seriously. These factors would all, in turn, increase confidence in the decisions of the commander. Aggrieved persons would feel more comfortable filing complaints because they trust the process through which decisions on their complaints are made, and offenders who otherwise would have felt shielded by the process would be deterred from sexual misconduct in the first instance.
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We hope these comments are helpful to your evaluation of the clarity of existing guidance relating to the offense of adultery and the adequacy of existing provisions on the disposition of offenses. We would be happy to discuss them with you or others in the Department in greater detail. If we may be of further assistance, please do not hesitate to contact us.
Sincerely,
Nancy Duff Campbell
Co-President
Emily Martin
Legal Intern
1. A July 16, 1997, memo to Air Force commanders lends support to this view: the memo urges a commander to use counseling, reprimand, and non-judicial punishment when faced with the improper relationships of members of his or her command. According to the memo, a court-martial should be sought only “in the most aggravated cases.” See Steven Komarow, Air Force Revises Code of Discipline in Ranks, USA Today, July 29, 1997, at 3.
2. The Perez court immediately continues, however, “Open and notorious conduct may be service discrediting while wholly private conduct is not generally service discrediting,” Perez, 33 M.J. at 1054 (emphasis added), thus leaving open the possibility that even notorious conduct may not be, and wholly private conduct may be, service discrediting in some circumstances. This possibility is not further elaborated.
3. The Green court considered whether the behavior violated local law or community standards despite its assumption that no member of the public knew about the behavior. Immediately after concluding there was no such violation, however, the court reaffirmed, “In any case, to prove service discrediting conduct, the public must be aware of the behavior and the military status of the offender.” Green, 39 M.J. at 609. Thus, the court’s discussion of local law and community standards probably must be considered dicta.
4. Green’s procedural stance obfuscates these issues. The Green court was deciding whether the trial judge had established a sufficient factual predicate to accept the accused’s guilty plea to adultery. The factual record is sparse, which lends a certain hypothetical quality to the court’s conclusions about what occurred. How much the court means to communicate through its conclusions is unclear.
5. At the point at which the complaint is referred for court-martial, it is investigated by an investigatory agency outside the chain of command (e.g., the Navy Investigative Service). Our comments focus on the need for improved investigation of the vast majority of cases that never reach these agencies.
6. These procedures are especially needed in these types of cases but could be used more broadly for all cases.
