This 2011 photo made available on the International Security Assistance Force's Flickr website shows the former Commander of International Security Assistance Force and U.S. Forces-Afghanistan Gen. Davis Petraeus, left, shaking hands with Paula Broadwell, co-author of "All In: The Education of General David Petraeus." As details emerge about Petraeus' extramarital affair with Broadwell, members of Congress say they want to know exactly when the now ex-CIA director and retired general popped up in the FBI inquiry, whether national security was compromised and why they weren't told sooner. (AP)
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Four high-profile current or former military leaders have found themselves embroiled in adultery scandals, a tricky area of military law that often comes down harder on misbehaving officers.
CIA Director David Petraeus, a retired four-star Army general and top commander in Afghanistan, resigned as spy chief after the FBI uncovered evidence that he was having an extramarital affair with his biographer, Paula Broadwell. Petraeus has acknowledged the affair.
Army Brig. Gen. Jeffrey Sinclair is facing multiple sexual misconduct charges, including forcible sodomy, involving five women, and including female officers who served with him. The initial hearing is over, but there has not been a decision on whether to proceed to a court-martial.
Marine Gen. John Allen, top U.S. commander in Afghanistan, is under investigation for potentially inappropriate communications with Florida socialite Jill Kelley, whose name surfaced during the Petraeus investigation. Allen says he has done nothing wrong.
James H. Johnson III, the former commander of the 173rd Airborne Brigade, was convicted of fraud and bigamy this year and left the Army after being reduced in rank to lieutenant colonel and paying a $300,000 fine. Johnson, who misused government funds to visit his Iraqi mistress, has since divorced his wife.
Although adultery regulations relate to the most personal kind of activity, they're meant to serve an important purpose, military law experts say.
"The reason it's criminalized is it really does have an impact on morale, and good order and discipline," said Greg T. Rinckey, a former Army judge advocate general in private practice. "When one soldier's deployed and another soldier who's not deployed is sleeping with his wife back home, that's going to impact that soldier's morale. And it should be criminalized."
Not every instance of extramarital sex is considered a crime under the Uniform Code of Military Justice. Article 134's provision on adultery requires specific factors to be considered, said Maj. Marc Cipriano, a criminal law attorney with the Army Office of the Judge Advocate General.
How a violation of good order and discipline is defined requires attorneys to weigh the soldier's marital status, rank, grade and position, and the equivalent for the soldier's sexual partner, and their spouses — as well as the military relationships of all involved.
Attorneys also have to weigh how any of these people's military duties were hindered; whether government resources were misused in the course of the affair and whether the accused at any point disobeyed orders to break off the improper relationship.
Adultery can be disposed of by the command through administrative or nonjudicial action, or through a court-martial. It can show up in an evaluation or as a general officer memorandum of record, which has the potential to be career-ending.
Officers and senior leaders are more likely to face stern punishment than junior enlisted soldiers if found guilty of adultery, Rinckey said.
A private or sergeant, for example, might receive nonjudicial punishment and perhaps lose a stripe. Because officers are supposed to conduct themselves honorably, an officer is more likely to receive a career-ending reprimand.
However, an officer who is having sex with an enlisted soldier or the soldier's spouse would likely face court-martial, Rinckey said.
Honesty, trust and integrity
Adultery regulations serve a practical purpose, said retired Maj. Gen. Douglas Carver, chief of Army chaplains from 2007 to 2011 and now executive director of chaplain services for the North American Mission Board, a Southern Baptist organization.
Carver noted the establishment of the UCMJ overlapped with a post-World War II spike in sexually transmitted diseases and a sense that adultery could be blackmail material for the nation's Cold War adversaries.
Otherwise, barring adultery is consistent with a military that values personnel of high moral and ethical character because of the life-or-death responsibilities they are given. Their conduct, good or bad, reflects on the U.S.
Adultery is an issue of integrity, dishonesty and trust, Carver said, a "violation of a holy covenant between a married man and woman."
"If we don't value honesty, trust and integrity, we might be less humane, or barbaric in our war fighting," Carver said, "and that's one thing we can boast as Americans. Although we've had our problems, we have fought fair."
This recent round of senior leader adultery scandals is not the first time the military has experienced scrutiny over adulterous officers.
In 1997, the Air Force was under the microscope for prosecuting then-1st Lt. Kelly Flinn, the service's first female B-52 pilot, over an affair with the husband of an enlisted subordinate.
In congressional hearings, then-Air Force Chief of Staff Gen. Ronald Fogelman said Flinn's crime was not only adultery but lying about it. Fogelman was castigated for exhibiting command influence with his statements, and Flinn was allowed to resign.
A year later, the Clinton administration proposed a change to the Manual for Courts-Martial to reduce prosecutions of adultery to the lowest levels of command and to provide new guidelines to commanders to determine whether a sex act was a UCMJ violation.
Seen as a watering down of adultery regulations, the matter died amid congressional opposition.
In 1999, Maj. Gen. David Hale had been recalled from retirement to face a court-martial for having adulterous affairs with the wives of four subordinates. Hale's subsequent demotion to one star included a reduction of nearly $9,000 to his pension of $76,000.
Later that year, Maj. Gen. John J. Maher was demoted two ranks and forced into retirement as a colonel for having adulterous affairs with the wives of his subordinates.
The 2003 Supreme Court case Lawrence v. Texas invalidated sodomy laws around the country, citing privacy protections. It also called into question the adultery section of the UCMJ, which led to revisions under President George W. Bush much like those proposed by President Clinton.
Under the changes, prosecutors have a greater burden to show how the sexual activity in question affected the military, Cipriano said.
"Sex in the parking lot at the Pentagon with a subordinate service member probably falls under the adultery offense, but something that happens in private may not," Cipriano said.
However, sexual activity that may have been entirely private and consensual could be considered adultery if it is service-discrediting, possibly if one of the spouses finds out or the public finds out.
"A classic case is people of different rank within an organization having a sexual relationship that may impact the ability to serve the military mission," Cipriano said.
In one case at Fort Leonard Wood, Mo., an enlisted soldier returned home from a deployment to find a picture on his computer of a member of his unit having sex with his wife in his bed. Rinckey, who represented the accused soldier, said there were pictures of the married couple's toddler son in the illicit photo.
"This is a perfect example of why this is criminalized," Rinckey said. "What could be worse than that?"
Adultery not only has to be service-discrediting, it has to be provable, a tough task for prosecutors without witnesses and photos.
In Allen's case, authorities are said to be reviewing roughly 20,000 to 30,000 pages of communications between Allen and Kelley, a married mother of three from Tampa, Fla., who organized social events at MacDill Air Force Base.
"You know that there is some JAG officer going through those pages with a highlighter right now determining whether this was an inappropriate relationship," Rinckey said. "Even if they can't prove adultery, it could be ‘conduct unbecoming an officer and a gentleman' under Article 133."
In more typical cases, a commander becomes aware of an offense because a soldier comes to him to say he thinks another soldier is having sex with his wife. The commander closest to that soldier, with a legal adviser, has to determine whether there is adultery and what the response should be.
"If this is something that is just a rumor, or the soldier says, ‘My wife and I are separated and I hear she is dating Sgt. Jones,' or if the soldier says, ‘I don't care,' that could all impact what the commander decides to do," Rinckey said.
The Associated Press contributed to this report.