Air Force Colonel argues that military adultery law discriminates against heterosexuals

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by | June 30, 2016

Here is a link to an interesting case that is developing out of Schriever Air Force Base. Air Force Colonel Eugene Marcus Caughey has been charged with a laundry list of charges that includes rape, conduct unbecoming, and adultery. Yes, adultery.

Unlike most civilian jurisdictions which–if they even have one–would have to dust off their adultery statute before they charged someone with it, adultery prosecutions are alive and well in the military. Typically, it’s used as an add-on charge to an allegation of rape and it provides an “alternate theory of liability.” So if a married service member defends against a rape charge by saying that the sex was consensual, they still get in trouble for cheating on their spouse.

Col Caughey has a raised a new, novel defense to his adultery charges. It is relatively simple. First, the military now recognizes same sex marriage. Second, adultery under the UCMJ requires sexual intercourse–defined as sex between a man and a woman. Accordingly, his prosecution violates principles of equal protection because homosexual married service members are not subject to the same laws as heterosexual service members.

It’s a good try, and it’s also the kind of creative argument that deserves recognition. By raising this issue, the defense team is forcing the judge to make a difficult call that could threaten to overturn significant portions of the proceedings on appeal. Because of this, the prosecution team should be more inclined to enter into a more favorable plea agreement. It’s excellent work regardless of the outcome.

Still, I think that the argument is destined to fail. (Note:the article suggests that the Colonel has asserted that this is a violation of his rights under the Fourteenth Amendment’s Equal Protection clause which applies to state not federal action. That is clearly a losing argument as the court-martial is federal not state action. I’m just going to assume that Col Caughey’s lawyers properly raised this as a violation of the equal protection component of the Fifth Amendment’s Due Process clause.)

First, sexual intercourse (i.e., heterosexual sex) outside of marriage is prohibited for both hetero and homosexual service members. A married male homosexual service member who has sex with a woman could be charged with adultery just like a heterosexual service member. The difference, of course, is that the homosexual service member doesn’t care. But that doesn’t mean that the possibility is any less real. Moreover, and as the prosecution in Caughey’s case argued, same-sex conduct outside of a homosexual marriage can be addressed using a novel specification of Article 134; which is, incidentally, is the same Article under which adultery is charged.

Second, the Supreme Court still hasn’t said that sexual orientation is a suspect class. (Which was actually one of the things I found disappointing about Obergefell v. Hodges.)  Accordingly, there doesn’t appear to be any kind of barrier to making “heterosexual” only laws.

Nonetheless, it’s a great case and excellent work by the defense. The issue is preserved, and I predict we’ll see it go all the way to the Court of Appeals for the Armed Forces if Col Caughey is convicted.