A Cautious Man
November 26, 2003
 
Chaplain Yee's Scarlet Letter
Okay, who thinks that this whole Chaplain Yee case is now just an attempt to ruin the man? News reports now indicate that a case that used to be about espionage, is now about having pornography on a government computer, and adultery. Last month we learned that the original spying charges would not be going forward; that doesn't keep some members of the press from continuing to refer to him as an accused spy. From day one, this case seemed to be the result of unhappiness with Chaplain Yee for just doing his job as a Muslim chaplain, which for him including presenting a more balanced face of Islam to counter the "Islam=Terrorism" mindset of so many inside and outside the military.

So, an adultery charge well serves the interests of anyone who wants to discredit Chaplain Yee in the eyes of the public. Assuming he did cheat on his wife does the military prosecute all of these cases? Apparently not. Even before recent changes, literature on military law shows that adultery was viewed as a crime only to the extent it harmed order and discipline in the armed forces.

The National Institute of Military Justice issued a report (the Cox Report, named after its chair) in 2001 recommending revisions to the Uniform Code of Military Justice (UCMJ). Among the recommendations:
The Commission concurs with the majority of these assessments in recommending that consensual sodomy and adultery be eliminated as separate offenses in the UCMJ and the Manual for Courts-Martial. Although popular acceptance of various sexual behaviors has changed dramatically in the fifty years since the UCMJ became effective, the Commission accepts that there remain instances in which consensual sexual activity, including that which is currently prosecuted under Articles 125 and 134, may constitute criminal acts in a military context. Virtually all such acts, however, could be prosecuted without the use of provisions specifically targeting sodomy and adultery. Furthermore, the well known fact that most adulterous or sodomitical acts committed by consenting and often married (to each other) military personnel are not prosecuted at court martial creates a powerful perception that prosecution of this sexual behavior is treated in an arbitrary, even vindictive, manner. This perception has been at the core of the military sex scandals of the last decade.
The elements of the offense are set out in Article 134 of the UCMJ:
(1) That the accused wrongfully had sexual intercourse with a certain person;
(2) That, at the time, the accused or the other person was married to someone else; and
(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. .
In 2002, President Bush issued an Executive Order adding an explanations to the UCMJ, including guidance for adultery prosecutions:
To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. 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.
Private conduct may or may not meet this standard, and therefore commanders were instructed to consider factors such as: "The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces; … The misuse, if any, of government time and resources to facilitate the commission of the conduct; … Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ; …The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; …" It remains to be seen what aggravating factors the military has found in Chaplain Yee's case, to justify a court martial.

When adultery prosecutions have come to the attention of the public, it has involved awareness of a double standard. For example, in 1997 Army Major General John Longhouser, the commanding general of the Aberdeen Proving Ground in Aberdeen, Maryland, was allowed to retire early at reduced rank after admitting he had had an adulterous relationship with a civilian. At practically the same time, there was the very contentious case of Air Force officer Kelly Flinn, who was threatened with prosecution for adultery, but who was in the end allowed accept a general discharge.

Oh, and at the time Senator Trent Lott had this to say about the adultery prosecution:"I think she is being badly abused. . . . The Pentagon is not in touch with reality on this so-called question of fraternization. I mean, get real. You're still dealing with human beings. . . . I don't understand why she is being singled out and punished the way she is. I think, at the minimum, she ought to get an honorable discharge."

People should consider whether Chaplain Yee's alleged conduct actually constituted a chargeable offense of adultery, or whether he, too, "is being badly abused."

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