Adultery help please

[rogueangel1205]

What is the name of your state? Kentucky
Thanks for hearing me. I was informed today that I will be given an art. 15 for adultery and for art. 92 failure to obey. I am married and working on obtaing legal seperation from my wife but I have no paperwork yet. I was told to have no contact with the other soldier in my unit. We are both lower enlisted and are not in each others chain of command. She is also working on becoming seperated from her spouse as well. I never had sex with this female. All we did was talk for a few days. When we did talk we talked for longs periods of time up to 4 hours or more. I saw her one time after I was told not to have any contact with her. I was under the assumption that I could not have contact with her at work. I do not understand how they can say that I can not be friends with her outside of work. We met one more time to talk about our relationship and decided we shouldn't see each other anymore. that would have been about two days ago. Someone told her chain of command which in turn came back to me. We are both getting counsled, but I think I am the only one getting the art. 15. We enevr had sex just talked, so what can I do. I know I will get the art. 15 for failure to obey, but can they also get me for adultery even though we never had sex. I understand that most everything in the Army is based on perception, and staying out late and talking to her looks bad but nothing happned. Is it possible to beat the adultery charge and the art. 92 if the contact happened outside of work. i am an E-3 and she is an E-2. Any help you can give mw would be great

 

[badapple40]

<snip>

In order to sustain a conviction for adultery under Article 134, UCMJ, not only must the government prove the existence of a valid marriage and an act of sexual intercourse with another by one of the parties to the marriage, but also that the act of sexual intercourse constituted conduct that was prejudicial to good order and discipline. See generally United States v. Hickson, 22 M.J. 146 (C.M.A. 1986).

United States v. Poole, 39 M.J. 819, also is clear that sexual intercourse is required to sustain a conviction under Article 134, UCMJ.

But they have a bigger problem: the bigger problem is that this case touches on "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" Lawrence v. Texas; U.S. v. Marcum

http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm

I believe the no contact order may well be unconstitutional in this setting under Marcum. I also believe that the only way you'll have the opportunity to contest that is to demand trial by court-martial -- that you will likely be convicted, and that you will need to test it by means of an appeal. Since you are probably unwilling to do that, I'd say you better be prepared to accept the Article 15, present the above arguments in that forum, take the punishment, and raise the issues through the records correction process, and ultimately through the APA in federal district court.

Welcome to a hell of a fight on your hands.

 

[rogueangel1205]

Please give me guidence and all the steps i need to fight this and win hopefully. I will do anything you suggest. Also, if they issued me to have no contact with the individual how does that violate my rights? i don't really understand. Does it mean that they can only stop me from having contact with her at work? In that case if i were to see here again outside of work...lets say i pick her up and not go inside her quarters that would be ok since the no contact order is only good while we are at work? Thanks for all the help.

 

[Jenniferlee]

They cannot get you on adultry without solid proof of actual intercourse like a confession of actual male/female penatration, or pictures of such. Just keep your mouth shut even if they say its "off the record". They will try to threaten you, don't give in. If for some reason they bust you for it at NJP without proof, then you have an excellent chance at an appeal. In the meantime I would stay far far away from her for real, they have their reasons to want you two apart, play the game until you two aren't under the spotlight anymore, i.e. fully divorced.