Guantanamo Sex Scandal

Whether or not the military will prosecute adultery as an offense under the UCMJ depends upon the exact circumstances. In short, the particular circumstances of the case must be shown to be "prejudicial to good order and discipline," or "of a nature to bring discredit upon the armed forces."

There are three "Elements of Proof" for the offense of Adultery in the Military:

(1) That the accused wrongfully had sexual intercourse with a certain person;

(2) That, at the time, the accused or the other person was married to someone else; and

(3) That, 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.

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Element #3, in many cases, can be the most difficult item to prove. The government must show that the individual's conduct had some direct negative impact on the military. This normally would include cases of fraternization (officer & enlisted) or a relationship with another military member, or a military spouse.

Some of you may remember the famous Lt. Kelly Flynn case of a few years back. Lt. Kelly Flynn was the Air Force's first female B-52 pilot. Unfortunately, Lt Flynn was an unmarried officer who was having an affair with a married civilian. Lt Flynn was advised by a First Sergeant, and later ordered by her Commander, to terminate the affair. She broke up with her "boyfriend," but later they got back together, and -- when asked about it -- Lt Flynn lied. Lt. Flynn was then charged with the offenses of adultery, giving a false official statement, conduct unbecoming an officer, and disobeying an order of a superior commissioned officer.

So, where was the "military connection" for the adultery charge? Well, the civilian "boyfriend," was the husband of an active duty enlisted Air Force member, stationed at the same base as Lt Flynn. Therefore, Lt Flynn's "affair" had a direct negative impact on the morale of that military service member (the enlisted wife is the one who originally complained about the inappropriate actions of Lt. Flynn).

Lt Flynn didn't face a military court, however; she was allowed to resign her commission in lieu of court martial (lots of media attention probably had something to do with this decision by the Air Force).