This comment was submitted by the National Coalition for Sexual Freedom (NCSF) to assist in the review of the Uniform Code of Military Justice (UCMJ) Article 134 Extramarital Sexual Conduct.
NCSF objects to the lack of a consent defense for extramarital sexual behaviors such as Consensual Non-Monogamy. If a service member is charged and convicted of extramarital sexual conduct, they may be fined, receive a Dishonorable Discharge, forfeiture of all pay and allowances, and possibly get jail time, even if the behavior was consensual.
Many military experts have protested that the “simple fact of adultery should not suffice, and the UCMJ should make that crystal clear.”[i] Currently, Article 134 criminalizes adult consensual non-monogamy, which is inconsistent with the evolution of America’s sexual mores as well as constitutional precedents and principles applicable to criminal prosecutions.
The reasons for revising Article 134 to include a consent defense:
1. The UCMJ should be consistent with the ruling of the United States Supreme Court in Lawrence v. Texas[ii] that consensual, non-injurious sexual conduct may not be the subject of criminal prosecution, except to the extent necessary to protect a valid societal interest such as good order and discipline (i.e., someone higher ranking sleeps with a subordinate’s spouse or vice versa).
2. Lawrence has established that moral disapproval does not constitute a societal interest sufficient to warrant the criminalization of such conduct. Article 134 includes the provision of “bringing discredit upon the armed services” which is defined as: “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open and notorious nature, to bring the service into disrepute, make it subject to public ridicule or lower it in public esteem.” Therefore, the provision of “bringing discredit upon the armed services” is an unconstitutional moral objection to consensual extramarital sexual behavior.
3. The lack of a consent defense has negative health consequences for all service members who engage in Consensual Non-Monogamy.[iii] Research has found that stigma, prejudice, and discrimination create a hostile and stressful social environment that causes mental health problems. This includes the experience of prejudicial events, expectations of rejection, hiding and concealing, internalized shame, and ameliorative coping processes.
4. Millions of adults in America engage in consensual non-monogamy, including many active service members. A U.S. nationally representative probability sample found that 18% of men and 10% of women have engaged in threesomes, while 11.5% of men and 6% of women have engaged in group sex, and 6% of men and 5% of women have attended a sex or swingers party.[iv] Group sex, threesomes, and sex parties involve more than two people, therefore they are not are not included under the exception that “adulterous behavior that is private and discrete may not be service discrediting.” Criminalizing the consensual sexual behavior of nearly 1 in 5 male service members and 1 in 10 female service members is not conducive to a well-functioning military.
5. The National Coalition for Sexual Freedom (NCSF) takes reports of discrimination against adults who are consensually non-monogamous, including reports from service members who are accused of violating Article 134 due to their relationship structures. NCSF is a coalition of over 140 groups, businesses, and private practices who serve adults who are non-monogamous. NCSF was established in 1997 and has worked with agencies such as the American Psychiatric Association and the American Law Institute to revise their codes to better reflect modern U.S. standards of sexual behavior between consenting adults.[v]
The U.S. military is part of American society and should reflect the changes in attitudes that have occurred in regards to alternative relationship structures. If the conduct is consensual and doesn’t violate good order and discipline, then it should not be criminalized by the UCMJ.
[i] Galston, W.A. (2012). The Military’s Law on Adultery Make No Sense. https://www.brookings.edu/articles/the-militarys-laws-on-adultery-make-no-sense/
[ii] 539 U.S. 558, 123 S. Ct. 2472 (2003).
[iii] Meyer, I. H. (2003). Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: Conceptual issues and research evidence. Psychological Bulletin, 129(5), 674–697.
[iv] Herbenick, D., Bowling, J., Fu, T. J., Dodge, B., Guerra-Reyes, L., & Sanders, S. (2017). Sexual Diversity in the United States: Results from a nationally representative probability sample of adult women and men. PloS one, 12(7), e0181198. doi:10.1371/journal.pone.0181198
[v] National Coalition for Sexual Freedom, www.ncsfreedom.org