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 HatleyBlogger,Criminal Law Brief