CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 - Adultery


2012 (September Term)

United States v. Tunstall, 72 M.J. 191 (in the context of an adultery specification, the government may prove the terminal element in one of two ways - either that, under the circumstances, the adulterous conduct was to the prejudice of good order and discipline or that it was of a nature to bring discredit upon the armed forces).

(appellant did not meet his burden to demonstrate material prejudice to a substantial right by the failure of an adultery specification to state the terminal element, where evidence in the trial record indicates that the defense introduced evidence on the merits for the specific purpose of negating both theories of the terminal element, the military judge instructed on the terminal element of the offense without defense objection, and, during its closing argument, the defense argued that the government had not proven either theory of the terminal element). 

2011 (September Term)

United States v. Humphries, 71 M.J. 209 (a specification charging the accused with adultery in violation of Article 134, UCMJ, was defective because it failed to allege the terminal element of that offense, i.e., conduct prejudicial to good order and discipline or service discrediting conduct). 

(failing to allege the terminal element of adultery under Article 134, UCMJ, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, was plain and obvious error; although the accused did not object to the form of the adultery specification at trial, because the law at the time of trial was settled and clearly contrary, it is enough that the error is plain now, and the error was forfeited rather than waived). 

(a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt).

2010 (September Term)

United States v. Fosler, 70 M.J. 225 (an accused cannot be convicted under Article 134 if the trier of fact determines only that the accused committed adultery; the trier of fact must also determine beyond a reasonable doubt that the terminal element of prejudicial or service discrediting conduct has been satisfied).

(an allegation that appellant wrongfully engaged in adulterous conduct in violation of Article 134 did not necessarily imply the terminal element of prejudicial or service discrediting conduct; because adultery, standing alone, does not constitute an offense under Article 134, the mere allegation that an accused has engaged in adulterous conduct cannot imply the terminal element; likewise, the word “wrongfully” cannot of itself imply the terminal element; “wrongfully” is a word of criminality, and words of criminality speak to mens rea and the lack of a defense or justification, not to the elements of an offense; finally, the inclusion of the words “Article 134” in the charge does not imply the terminal element; the words “Article 134” do not, by definition, mean prejudicial to good order and discipline, of a nature to bring discredit upon the armed forces, or a crime or offense not capital; these components of the charge and specification do not imply the terminal element alone or when combined).


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