Challenge to Adultery Ban Unlikely

Article excerpt

Congress will not move to decriminalize adultery in the military unless the Pentagon first makes the request, an unlikely scenario given the law's importance in maintaining discipline in the ranks.

The saga of Lt. Kelly Flinn, the female B-52 pilot who last month took a less-than-honorable discharge rather then face adultery and other charges, has triggered an intense Washington debate on the military's sex laws.

Some lawmakers wonder if the Uniform Code of Military Justice (UCMJ) should be stripped of the language in Article 134 that outlaws adultery.

But military experts say the general public and congressional critics have little appreciation for how extramarital affairs can unravel close-knit military life.

Officials said Congress, in an era of "family values" speeches and legislation, won't make the first move.

"I would hope that the armed services can review the entire code and all the regulations, and then propose to the Congress what is appropriate," said Rep. Nita M. Lowey, New York Democrat, a leading critic of how the Air Force handled the Flinn case. "I think that is the best way to deal with it."

"I think they have to review all the fraternization and adultery regulations," she added. "In fact, what they have to do is ensure that all the military rules are enforced consistently and equally. This has been one of the difficulties as you look at the history."

Chris Cimko, spokeswoman for the Senate Armed Services Committee, said the panel only amends the UCMJ if the Defense Department makes a request, and so wouldn't initiate a move to decriminalize adultery.

In a commencement speech last week to Air Force Academy graduates in Colorado Springs, Defense Secretary William Cohen strongly indicated he would oppose decriminalizing adultery.

The Air Force, Army, Navy and Marine Corps have court-martialed nearly 900 men and women in the past five years on charges that include adultery. The branches handled hundreds of other adultery cases administratively, or through closed-door proceedings known as nonjudicial punishment.

The key factor in whether an adultery case reaches the court-martial stage is whether additional serious charges exist or if the defendant requests a trial by jury in lieu of nonjudicial punishment.

The military has outlawed adultery at least since 1951, when Congress enacted the UCMJ. A court-martial conviction carries a maximum penalty of a dishonorable discharge, one year in prison and forfeiture of all pay and allowances.

David Schlueter, a former Army lawyer who teaches law at St. Mary's University in San Antonio, said sound arguments exist for keeping Article 134.

"It's a potentially very dangerous mixture when you deal with officers, enlisted [personnel] and spouses, especially in a location where these folks are in a close working environment," said Mr. Schlueter. "The word spreads very quickly. It has a very deleterious effect."

Lt. Flinn's affair with a married soccer coach illustrates this point. The coach, Marc Zigo, was married to an Air Force enlisted woman, Gayla Zigo. …