Husband being charged with adultery - Help!!

[bluesclues]

What is the name of your state? NY

My husband is in the marine corp. When we met in 2001, I had been legally separated from another marine since November 2000 (who had comitted adultery with another marine and left me for her; his command covered it up). I repeatedly tried to get the divorce going, but he was constantly deployed and then he got out of the marine corp altogether in 2002 and I could not find him. In the meantime, I had a child by my now-husband in 2002. Now-ex husband came back into the marine corp in 2003 and we finally divorced in 2004. My husband's command found out and is charging him with adultery. Ex-husband knows about the whole situation and is on our side and willing to testify in our defense. My husband's enlistment is up and he is on legal hold. His military defense counsel informed us that he should start looking for a civilian job because no matter the outcome of the case, they probably will not let him reenlist. Is adultery in the military that cut and dry? Is the fact that I was legally separated since 2000 not taken into consideration? Or the fact that my ex-husband is not pushing the issue and is on our side?

[badapple40]

Originally Posted by bluesclues

What is the name of your state? NY

My husband is in the marine corp. When we met in 2001, I had been legally separated from another marine since November 2000 (who had comitted adultery with another marine and left me for her; his command covered it up). I repeatedly tried to get the divorce going, but he was constantly deployed and then he got out of the marine corp altogether in 2002 and I could not find him. In the meantime, I had a child by my now-husband in 2002. Now-ex husband came back into the marine corp in 2003 and we finally divorced in 2004. My husband's command found out and is charging him with adultery. Ex-husband knows about the whole situation and is on our side and willing to testify in our defense. My husband's enlistment is up and he is on legal hold. His military defense counsel informed us that he should start looking for a civilian job because no matter the outcome of the case, they probably will not let him reenlist. Is adultery in the military that cut and dry? Is the fact that I was legally separated since 2000 not taken into consideration? Or the fact that my ex-husband is not pushing the issue and is on our side?

contact me. [email]badapplelaw@hotmail.com[/email]. We need to have a chat. Your husband has a great defense to this.

[SHORTY LONG]

Curious; am i to understand that you married your second husband without lawfully being divorced from your first husband?

[bluesclues]

Originally Posted by SHORTY LONG

Curious; am i to understand that you married your second husband without lawfully being divorced from your first husband?

No, I was legally divorced before I remarried in 2005.

[badapple40]

The defense here, for everyone watching, is that this prosecution is unconstitional under Lawrence v. Texas, U.S. v. Marcum, and U.S. v. Bullock.

The sex with a civilian is protected under Lawrence (private sexual encounter between two adults), the first prong in the Marcum test.

The conduct did not “encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence.” See Marcum, 60 M.J. at 206-207. The conduct did not involve a minor. See Lawrence, 539 U.S. at 578. It did not involve public conduct or prostitution. Id. It did not involve “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id.

The only question is whether "“additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Marcum, 60 M.J. at 207

Here, there is not sex between the military member and another member in the same command's wife. In fact, to the contrary, there was a legal separation and no interest by the wife's husband in the event. In short, there is nothing particularly service discrediting to put this case outside of the range of constitutional protection.

I'd say a motion to dismiss is appropriate.

Lawrence:
[url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102[/url]

Marcum:
[url]http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm[/url]

Bullock:
[url]http://www.sodomylaws.org/usa/military/milnews052.htm[/url]

[bluesclues]

This is my husband's Colonel. He wants my husband given the maximum punishment and an OTH discharge. Interesting huh.

[url]http://www.marinetimes.com/story.php?f=1-292925-1600826.php[/url]

[badapple40]

What is going on with your husband's case? Did the lawrence/marcum cases work out?

[rmet4nzkx]

Originally Posted by bluesclues

This is my husband's Colonel. He wants my husband given the maximum punishment and an OTH discharge. Interesting huh.

[url]http://www.marinetimes.com/story.php?f=1-292925-1600826.php[/url]

So his Col was relieved of his command, but what is happening to your husband's case? Did you use any of BA's caselaw references?

[runnin4freedom]

wow kiddo's this is good. if u gonna **** someone while your married you shouldn bitch and moan about tha consequences. maybe you should think things completely through before you do them, and him as this case is. im willin to bet there were probably a few other people along tha way too huh? jus had ta have tha dick didn ya? lol

[mtnstyne]

Originally Posted by runnin4freedom

wow kiddo's this is good. if u gonna **** someone while your married you shouldn bitch and moan about tha consequences. maybe you should think things completely through before you do them, and him as this case is. im willin to bet there were probably a few other people along tha way too huh? jus had ta have tha dick didn ya? lol

That's mature...

Anyway, I don't see your tie-in with the 3 listed cases below. This is not a case about sodomy or forced intercourse. In these cases the SM (service member) was still found guilty of UCMJ charges such as deriliction of duty.

In the first case (not a military court that is conducted under the manual of court martials) the case has nothing to do with Adultery, but rather sodomy.

The other 2 cases are military cases, but also have nothing to do with the original post....adultery.

I am active duty for the past 13 years and we do see it pretty cut and dry. Legal separation is not recognized under UCMJ as a dissolution of marriage.

Here's a question to ask yourself...under who's dependancy was your baby born (i.e. - did the military pay for the birth of your child because you were still husband #1's dependant?). That is how it is viewed in the military...you were still married to husband #1, although legal separated, still married, cut and dry.

I would hope however that a court of your husbands peers would undstand the circumstances and impose the minimums...

Good luck.

[badapple40]

Originally Posted by mtnstyne

That's mature...

Anyway, I don't see your tie-in with the 3 listed cases below. This is not a case about sodomy or forced intercourse. In these cases the SM (service member) was still found guilty of UCMJ charges such as deriliction of duty.

In the first case (not a military court that is conducted under the manual of court martials) the case has nothing to do with Adultery, but rather sodomy.

The other 2 cases are military cases, but also have nothing to do with the original post....adultery.

I am active duty for the past 13 years and we do see it pretty cut and dry. Legal separation is not recognized under UCMJ as a dissolution of marriage.

Here's a question to ask yourself...under who's dependancy was your baby born (i.e. - did the military pay for the birth of your child because you were still husband #1's dependant?). That is how it is viewed in the military...you were still married to husband #1, although legal separated, still married, cut and dry.

I would hope however that a court of your husbands peers would undstand the circumstances and impose the minimums...

Good luck.

You miss the point and are too caught up in the details. The point is those cases protect consensual sex between adults. While they dealt with sodomy, their application to adultery is clear. Adultery also involves consenual sex between adults. Hence, it is unconstitutional to prohibit adultery UNLESS the exceptions for military purposes as explained in Marcum apply.

There is a growing consensus among judge advocates that the adultery provisions of the UCMJ is also unconstitutional under Lawrence and Marcum. And, while you say Lawrence did not apply to the military, CAAF (thats the Court of Appeals for the Armed Forces) looked at Lawrence in the Marcum case. That would be because the Lawrence case came from the U.S. Supreme Court.

--badapple, COL, JA, USAFR.