San Diego Law Review

Library of Congress Authority File


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The recent cases against Penland and Yee demonstrate with clarity the military's willingness to pursue adultery prosecutions for questionable motives. In light of this fact, and the obsolescence of these statutes in the public mind, adultery should be removed from the enumerated offenses under article 134. Part II will discuss the history of the crime of adultery in American jurisprudence, including the current state of adultery as a crime, as well as the current public opinion on adultery in light of several recent high-profile adultery scandals in the media.

Part III will delve into the history of adultery prosecutions in the military, first by explaining the origins of the UCMJ and then by showing how the military punishes adultery through the procedures listed in the MCM, including nonjudicial punishment and court-martial.

Part IV will discuss the offense of adultery under articles 133 and 134, including the elements of the crime and the way the military proves the elements at court-martial. It will also illustrate with real-life examples how the military proves its case on adultery, demonstrating that proving the crime may be quite easy despite the burden of proof required by the MCM.

Part V will probe into the military’s rationale for continuing to prosecute the crime of adultery, despite the fact it has fallen out of favor in the civilian world. This Part will show that even though the military has valid reasons for taking action against some adulterous conduct, the continued prosecution of adultery has the tendency to impede these interests.

Finally, Part VI will explain how removing adultery from the offenses under article 134 would benefit not only servicemembers and the civilians now subject to the UCMJ, but also the public perception of the armed forces.

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