Is the military’s law making adultery a crime unconstitutional? So says a colonel who’s been charged with violating it. His motives aren’t great -- he’s trying to deflect attention from more serious charges, including rape. But he may be right. The law arguably discriminates by criminalizing only heterosexual adultery. And even if that vestigial aspect of the law could be fixed, there’s another problem: the anti-adultery law violates the fundamental right of privacy, which should extend even to armed-forces personnel, whose constitutional rights are limited by military necessity.
The issue has arisen in the context of a court-martial against U.S. Air Force Colonel Marcus Caughey. He’s been charged with rape, assault, taking a sexual selfie -- and six counts of adultery. Under the Uniform Code of Military Justice, which governs uniformed personnel, adultery is a crime. Military prosecutors typically add the charge when a defendant is accused of other crimes. It gives them extra leverage, but also provides room for the factfinder, whether judge or jury, to reach a compromise verdict and find the defendant guilty of adultery even if it doesn’t find him guilty of rape or assault.
Caughey’s lawyers want to get rid of the adultery charge -- and, presumably, to change the narrative of the trial by refocusing attention on something other than the accusations against their client. It’s a creative argument.
The way the military adultery law works is a bit tricky, so bear with me, because it matters. Article 134 of UCMJ makes it a crime for a member of the armed forces to “prejudice good order and discipline” or “bring discredit upon the armed forces.”
That general language is then interpreted by the military to include various crimes including adultery. The military defines adultery as “sexual intercourse” when the parties are not married to each other and at least one of them is married to someone else.
But because it’s a relic of an earlier era, military law treats only heterosexual intercourse as qualifying.
That’s because in the bad old days, homosexual conduct was defined separately as “sodomy,” which was a crime distinct from adultery. That definition is still on the books, even though it would be unenforceable today.
Caughey’s lawyers say limiting the crime of adultery to heterosexuals makes the law unconstitutional because it discriminates against straight people relative to gay people.
You might find this argument laughable -- after all, the law is set up the way it is precisely because of the military’s history of anti-gay discrimination. It’s just an accident of changed constitutional circumstances that today, you can be charged with adultery only by having intercourse with someone of the opposite sex.
Or you might make the technical point that the law could in fact punish a person married to someone of the same sex if he or she had intercourse with someone of the opposite sex.
But Caughey’s argument isn’t ridiculous. There’s a long history of the courts striking down laws that discriminate on the basis of sex because they reinforce stereotypes. Arguably, this law is just as bad. It’s possible to imagine a court rejecting it.
There’s a simple remedy, however. The military could solve the problem by criminalizing all adulterous sex, whether straight or gay. And it wouldn’t require amending the UCMJ, just reinterpreting it officially.
Indeed, I can easily imagine a military court holding that, in the light of Supreme Court decisions legalizing gay sex and gay marriage, Article 134 of the UCMJ necessarily must be interpreted to extend to straight and gay people equally.
If that’s right, Caughey’s argument should lose, since the discrimination of which he complains doesn’t exist, legally speaking.
But there’s another constitutional problem, in my view more serious than the one Caughey’s lawyers raised.
The adultery prohibition violates the fundamental right to privacy, regardless of whom it covers.
In the landmark 2003 decision of Lawrence v. Texas, the court struck down laws prohibiting gay sex. Justice Anthony Kennedy’s opinion didn’t rest on equality. Instead he wrote that the right to have sex with a consenting person of one’s choice was “central to personal dignity and autonomy.” ...
History of the NCSF: Hard at Work to Defend Your Rights
The National Coalition for Sexual Freedom (NCSF) was formed in 1997 by a small group led by Susan Wright under the auspices of the New York SM Activists. The goal was to fight for sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior.
The first five organizations who joined reflected our desire to be a nationwide organization: the National Leather Association—International, Gay Male S/M Activists, The Eulenspiegel Society, Black Rose and Society of Janus. Today, NCSF has over 50 Coalition Partners who elect the board that runs NCSF, and establish our goals at the annual Coalition Partner meeting. Coalition Partners are groups and businesses who serve BDSM, swing and polyamory practitioners and also support NCSF by holding an annual fundraiser. NCSF also has over 100 Supporting Members – groups and businesses that support NCSF.
Over the years, NCSF has formed alliances with other organizations that defend sexual freedom rights: Free Speech Coalition, the ACLU, American Association of Sex Educators Councilors and Therapists, Society for the Scientific Study of Sexuality, National Gay and Lesbian Task Force, and the Gay and Lesbian Activist Alliance, among others.
Early Successes for NCSF
The 1998 Violence & Discrimination survey revealed the extent of discrimination and persecution that exists against the SM-leather-fetish communities. NCSF found that 36% of SM practitioners have been victims of harassment and that 30% have been victims of discrimination. This discrimination resulted in 24% losing a job or a contract, 17% losing a promotion and 3% losing custody of a child. This survey helped NCSF gear our energies towards issues that matter most to our constituents.
NCSF also lent assistance to the local communities in San Diego and Baltimore, to help to stop the selective enforcement of zoning and public indecency laws against the SM-Leather-Fetish communities. Next, NCSF assisted the local communities in Attleboro MA and Washington DC as those cities faced the same selective enforcement that had been attempted in Baltimore and San Diego. NCSF continues to work with State Attorney Generals and local District Attorneys to help educate these authorities about SM, swing and polyamory practices to prevent dangerous precidents from being set against adult consensual sexuality.
NCSF and the Media
As an advocacy organization, one of NCSF's strategies has been to educate the media about issues facing the SM-Leather-Fetish, swing and polyamory communities. You can help by signing up for NCSF's media updates list
. This weekly email will alert you to stories about alternative sexual expression in the news, and will give you contact information so that you can respond to an editor to let them know if you liked or disliked an article and why. We also give you tips on how to write a letter. Even if your letter is not printed, these letters influence how editorial decisions are made in the future.
NCSF's Media Outreach Program has developed a package of materials that provide information about NCSF and the communities we represent. This program provides education and training to groups and individuals on how to effectively interact with the media.
One example of NCSF's advocacy efforts took place in the Attleboro MA coverage in July, 2000. In the first media reports regarding the Attleboro arrests, the incident was characterized as a "sex club" raid. Within 48 hours, a coordinated effort led by NCSF and the local community to educate the media resulted in a major change in the characterization of the arrests. The tone of the coverage went from defending the actions of the law enforcement officers to questioning their judgment and several reporters raised legitimate questions about possible civil rights violations.
From February to May 2002, five SM conventions were targeted by Concerned Women for America, American Family Association, and the American Decency Association. NCSF worked with each event to counter sensationalized attacks in the media as well as resisting action by local authorities who attempted to shut down some of these SM conferences. The attacks took place in the midwest against My Vicious Valentine and International Mr. Leather in Chicago, Bound by Desire in Michigan, Tribal Fire in Oklahoma, and Beat Me in St. Louis in Missouri.
NCSF's Incident Response Program: Helping you...
In 2006, over distinct inquiries were made between NCSF and individuals, groups, attorneys, prosecutors, and businesses who requested assistance. Each incident sometimes required only one or two phone calls, but many evolved into much larger projects.
14.5% were related to SM/leather/fetish group issues
13.5% were regarding child custody/divorce issues
13% were requests regarding SM/abuse/domestic violence issues
10.5% were regarding zoning issues
9% were classed as non-employment discrimination
8% were related to swing community issues
8% were regarding online obscenity issues
7% were regarding employment discrimination
6% were regarding criminal complaint issues
5.5% were in reference to child protective services’ complaints
5% were classed as “other”
Of the inquires, 73.5% were driven by SM/leather/fetish issues, 15% by swing, 7% by poly, 4.5% by other.
Early in 2000, NCSF launched its Education Outreach Program (EOP). This program is designed to educate law enforcement officials about our communities, and educate members of our community regarding the risks of selective enforcement and how to minimize the risk of becoming a target. NCSF has published a number of pieces of literature for this program and has assembled and trained a team of individuals from across the country to deliver the educational presentations developed by the NCSF-EOP. New presentations are always being developed by the EOP team.
We Need You!
In the past decade, alternative sexual expression has become much more visible to the general public. As we continue to move into the streets of mainstream America, we face an increasing number of attacks against our right to freedom of sexual expression. While the battles that NCSF has waged have been successful, our resources are depleted. NCSF will continue to defend against these attacks, but the success of that fight depends on your support. You can provide that support by becoming an individual member of NCSF, volunteering to join the NCSF staff, making a donation to NCSF, or encouraging your group to become a Coalition Partner of NCSF.
There are many ways to volunteer to help NCSF. You do not have to be "out" to help. Tell others about NCSF or distribute our literature. Initiate or help out at a fund-raiser with NCSF as a beneficiary. Check out the rest of this website and you'll find everything from Calls to Action to our Incident Response program. Every step you take helps us further the sexual freedom movement!