Just
days after President Obama was re-elected, the President accepted CIA Director
and retired Four-Star General David Petraeus’s
resignation. An FBI investigation had
uncovered that Petraeus was having an extramarital affair with his biographer
and Army reserve officer Paula
Broadwell. This extramarital affair
has not only been an embarrassment to the intelligence community (Broadwell was
found with classified documents and General John Allen has also been dragged
into the issue), but is a criminal offense for both participants.
The
Uniform
Code of Military Justice (UCMJ) identifies what is conduct that is
unbecoming of an officer and a gentlemen and makes such conduct a violation of 10 U.S.C. § 933 and § 934 and the Manuel for
Courts Martial. The violator is subject to court-martial. Broadwell, as an active reservist, is
obviously subject to the UCMJ. But so is
Petraeus, as a retired officer entitled to retirement pay, he is under the
UCMJ’s jurisdiction pursuant to 10 U.S.C. § 802(a)(4).
Now the real issue is whether we can expect Petraeus of Broadwell to
actually face a court-martial. Not all adulterous conduct is subject to
court-martial. Adulterous conduct that
discredits the service or is prejudicial to good order and discipline is
subject to court-martial. Discredit means to injure the reputation of the armed forces and includes
adulterous conduct that has a tendency, because of its open or notorious
nature, to bring the service into disrepute; make it subject to public ridicule;
or lower it in public esteem. While
adulterous conduct that is private and discreet in nature may not be service
discrediting by this standard, under the circumstances, it still may be
determined to be conduct prejudicial to good order and discipline.
This
affair was by no means private and discreet. It seems to perfectly fit the type of
adulterous conduct that is subject to court-martial because the affair has
injured the reputation of the armed service, it is notorious in nature, and it
has made the armed service a subject of public ridicule. Also given that the affair has entangled other
prominent officers such as General John Allen, it has also been prejudicial to
the good order and discipline of the armed services. So it seems, the Petraeus affair is a prime
opportunity to make good use of the UCMJ provision that prohibits adultery.
There are a number of reasons to dismiss such
a court-martial as a Puritanical crackdown on sex. After all, outside the United States, almost
no other industrial country lists adultery in the criminal code. However in twenty-three states, including David
Petraeaus’ state of residence, Virginia, adultery is a crime. But most states have purged their codes of
laws regulating cohabitation, homosexuality, sodomy and fornication, especially
after a 2003 Supreme Court decision Lawrence v. Texas.
The Military Courts have also recognized
that the Lawrence decision limits the
scope of UCMJ. See e.g. United States v. Meno, ARMY 20000733 (Army Ct. Crim. App 2005). However, the Meno court did explicitly recognize that notorious adultery is
still punishable.
Regardless of the sexual conduct, the acts of Four Star General
David Petraeus and Lt. Colonel Broadwell have harmed the reputation of the
United States Army. Their actions
prompted an FBI investigation, will prevent General John Allen from being
confirmed as NATO’s Supreme Allied Commander in Europe, and prompted Petraeus’s
resignation as Director of the FBI. At
its least, this was conduct unbecoming of an officer and a gentleman.
Ryan Hatley
Blogger,
Criminal Law Brief
Great blog. Just one correction:
ReplyDelete"Broadwell, as an active reservist, is obviously subject to the UCMJ." This is incorrect; see Article 2, UCMJ. She is only subject to the UCMJ when on active duty in the military (on Title 10 orders). She would have had to commit the "crime" during a drill weekend, her two weeks of annual training, an active duty deployment or mobilization. You notice she is always in civilian clothes in every picture with him? Therefore, she is not OBVIOUSLY subject to the UCMJ, but possibly.
MAJ Aimee Bateman
Associate Professor, Criminal Law
Great post!!Thanks for sharing it with us....really needed.Bound by innovation, not tradition, we continue to redefine the way we practice law. We strive to deliver the highest quality legal work and service to our clients.Compensation Lawyers Sydney
ReplyDelete