UCLA UCLA Women's Law Journal Title Rank Matters but Should Marriage?: Adultery, Fraternization, and Honor in the Military Permalink https://escholarship.org/uc/item/09f1s5p3 Journal UCLA Women's Law Journal, 9(2) Author Hopkins, C. Quince Publication Date 1999 DOI 10.5070/L392017710 Peer reviewed eScholarship.org Powered by the California Digital Library University of California ARTICLE RANK MATTERS BUT SHOULD MARRIAGE?: ADULTERY, FRATERNIZATION, AND HONOR IN THE MILITARY C. Quince Hopkins* ABSTRACT Legal regulation of sexual conduct typically proves thorny for American courts and legislatures. Criminal sanctions for * Visiting Professor of Law, Washington and Lee University; J.S.D. Candi- date, Stanford Law School, 1999; J.S.M. Stanford Law School, 1998; J.D. University of Maryland School of Law, 1989; B.A. St. John's College 1983. For their thoughtful comments and insights on earlier drafts of this Article, I would like to thank Tom Grey and members of his 1997 Legal Studies Colloquium at Stanford Law School (particularly Kirsten Nussbaumer and Margaret McGuinness), members of the faculty at the University of Arizona College of Law (particularly Barbara Atwood and Toni Massaro), members of the Stanford Women's Human Rights Group (par- ticularly Sophie Pirie), members of the CAVNET domestic violence expert listserv (particularly Diane Sweeney and Nancy Lemon), B. Hopkins, Diane Mazur, Martha Minow, and Clare Rowe. Much of my thinking about adultery was enhanced by several discussions on the subject with Rogelio Perez-Perdomo, Professor at In- stituto de Estudios Superiores de Administracion in Carracas, Venezuela and Visit- ing Professor at Stanford Law School. Special thanks go to Erika Wayne, research librarian at Stanford Law School, who, without fail, tracked down military rules and regulations not part of standard library collections. I would further like to thank those within the military sector who gave me their time, thoughts, and a number of references to which I would not otherwise have had access, including Leigh Bradley, Deputy General Counsel for the Navy, Michelle Behneke of the Servicemembers Legal Defense Network, Col. Paul Black of the Office of Undersecretary of De- fense, and Lt. Col. Terry Cook of the Joint Services Committee. Many thanks also to my original Greek Professor, Jon Tuck, Tutor at St. John's College in Annapolis, Maryland, for reviewing my Greek translation for this Article, and the editorial board at the UCLA Women's Law Journal for their insightful comments and pains- taking work on this Article. Finally, I would like to thank Katherine Franke, Janet Halley, Deborah Rhode, Carole Rose, and Robin West for their inspiration and en- couragement. Any errors that remain are my own. 78 UCLA WOMEN'S LAW JOURNAL [Vol. 9:177 private, consensual sex acts are particularly problematic. The trend in the civilian sector is towards deregulation, including decreasing prosecutions for fornication and adultery. At the same time that civilian criminal trials for marital infidelity dis- sipated, military adultery prosecutions exploded. In this Arti- cle, Quince Hopkins explores this disjuncture, arguing that the increase in military prosecutions for adultery reflects a more general social conservative backlash. This backlash, she con- tends, reverberates in the civilian sector's more recent trend toward reinstituting fault-based divorce and developing of covenant marriages. Hopkins points out that criminal sanc- tions for marital infidelity are particularly problematic for vic- tims of intimate abuse because of the close link between domestic violence and jealousy (whether real or constructed). She contends that a legal norm proscribing adultery may bol- ster a batterer's belief that strong retribution for sexual infi- delity is appropriate. Hopkins then analyzes rationales for the military sanction against adultery and concludes that they are already fully served by existing military sanctions based on something other than marital status. With respect to basing such policy on the notion of military honor, she evaluates honor as the term was deployed by ancient Greek philosophers. Hopkins concludes that the concept of honor is much more pedestrian than some current military theorists would have us believe. She contends that the rhetoric of military honor masks the importation of conservative civilian social norms into the military. Criminal regulation of sexual infidelity is problematic in and of itself. When such regulation is based on fluctuating cultural concep- tions of what conduct is honorable, the risks of indeterminacy overshadow any remaining legitimate value sought to be protected. TABLE OF CONTENTS I. INTRODUCTION ....................................... 180 II. CIVILIAN SANCTIONS FOR ADULTERY: A BRIEF H ISTORY ............................................. 187 III. A CAVEAT: ADULTERY AND DOMESTIC VIOLENCE IN THE M ILITARY ................................... 190 IV. ADULTERY IN THE MILITARY ...................... 202 A . Background .................................... 203 B. Military Culture: What is at Stake? ............ 205 V. MILITARY DISCIPLINE: PROTECTION AND FURTHERANCE OF RESPECT FOR THE CHAIN OF COMMAND, UNIT COHESION, AND GOOD ORDER AND D ISCIPLINE .................................... 208 1999] RANK MATTERS BUT SHOULD MARRIAGE? 179 A. Administrative and Court-MartialSystems as Parallel to the Civilian CriminalJustice System ......................................... 209 B. Substantive Criminal Provisions: The Uniform Code of Military Justice and the Manual for Courts-Martial ................................. 211 C. UCMJ Provisions: Article 133 and A rticle 134 ..................................... 213 1. Article 133: Conduct Unbecoming an Officer and a Gentleman .................. 213 a. An Officer's Honor and Character..... 214 b. An Officer's Ability to Command the Unit: Chain of Command and Unit Cohesion ............................... 224 2. Article 134: The General Article .......... 227 a. Conduct that Prejudices Good Order and Discipline ......................... 228 b. Conduct Bringing Discredit to the Armed Forces .......................... 230 c. Crimes and Offenses Not Capital ...... 231 D. Determination of Prejudicialand Service Discrediting Conduct Under the 1998 Proposed Revisions to the Manual for Courts-Martial .... 232 VI. HISTORICAL AND LEGAL DEVELOPMENT OF MILITARY SANCTIONS AGAINST ADULTERY ........ 234 A. Historical Development of Military Sanctions against A dultery ................................ 234 B. Manual for Courts-Martial: Amendment to Include Adultery and Fraternization............ 238 C. Fraternization: Relationships between Service M em bers ....................................... 241 1. Rank Differences .......................... 241 2. No Rank Differences ...................... 245 D. The Military's Conception of Adultery ......... 246 VII. POSSIBLE RATIONALES FOR MILITARY PROSECUTION OF ADULTERY ...................... 248 A. Sex between a Service Member and a Civilian: Is it Sex that is of Concern? .................... 248 B. Is the Military Protecting the Sanctity of the Marital Relationship? .......................... 249 C. Is the Military Protecting Military Families? .... 250 1. Protection of Military Wives ............... 250 UCLA WOMEN'S LAW JOURNAL [Vol. 9:177 2. Fiscal Concerns: Military Benefits for Fam ilies .................................... 251 D. Is Prosecution of Adultery in the Military a Necessary Reflection of Civilian Society? ....... 252 E. Is it Otherwise a Question of Morality? ........ 254 F. Does the Military Prosecute Adultery Because of Concerns about Honesty? ................... 255 G. Is there a Problem Inherent to Gender Integration in General? ........................ 255 H. Is it a Concern with Violence Against Adulterous Service Members at the Hands of the Cuckolded Spouses? ........................ 256 I. Is it a Question of Honor? ..................... 257 VIII. CONCLUSION ....................................... 260 I. INTRODUCTION 0, beware, my lord, of jealousy! It is the green-ey'd monster which doth mock [t]he meat it feeds on. That cuckold lives in bliss [wiho, certain of his fate, loves not his wronger.' Questions about commitment, honesty, honor, morality, fi- delity, and integrity occupy headlines and form the subject mat- ter of dinner table conversations around the country. Taking a step back from the details of those discussions, we can see several related but directly conflicting trends. First, seemingly contradic- tory law reform movements are taking place. Criminal sanctions for adultery in the civilian sector are nearly obsolete. In contrast, the armed forces recently chose to reaffirm their practice of criminalizing adulterous behavior. 2 1. WILLIAM SHAKESPEARE, THE COMPLETE PLAYS AND POEMS OF WILLIAM SHAKESPEARE 1115 (William A. Neilson & Charles J. Hill eds., 1942). 2. On the obsolescence of civilian prosecutions, see, Herbert Jacob, Silent Revolution, in LAW & SOCIETY: READINGS ON THE SOCIAL STUDY OF LAW 312 (S. Macaulay ed., 1995). On the military's decision to reaffirm the criminalization of adultery, see Military Gets New Rules on Adultery: It's Still A Crime, But Not All Cases Will Be Prosecuted, CHI. TRIB., July 29, 1998, available in 1998 WL 2880547. As discussed in this Article, although adultery was subject to prosecution over the past century, in practice this policy laid dormant until the integration of women into the armed forces in the late 1970s. See infra Part VI. It is not without