Thursday, June 30, 2016

Prof. Noah Feldman: decriminalize adultery

Harvard Law School Professor Noah Feldman has written a persuasive column for Bloomberg View, arguing that the time has come for the U.S. armed forces to end the criminalization of adultery. Excerpt:
Some 16 states still criminalize adultery. But those laws are, I think, unconstitutional under the Lawrence precedent. But because they are rarely or never enforced, they are unlikely to come to court. 
That leaves the military’s adultery ban, which is enforced, as the logical subject of a constitutional challenge. 
The military would no doubt argue that its special interests in discipline should be treated deferentially by the courts, and that adultery by uniformed personnel is especially harmful. 
But those are weak and unconvincing arguments, which would be rightfully rejected in the context of gay sex. Private, consensual sexual behavior should be treated as a fundamental right that applies even to military personnel. The military doesn’t need to regulate people’s consensual sex lives to enforce discipline.
What do you think: abolish or keep?


  1. I was present for the current iteration of guidelines (found in the MCM at page IV-103). The intent was to narrow the scope of cases for which prosecution or discipline was considered appropriate. I think it is rather the charging decisions where the over- criminalization occurs. I do think prosecutors throw it on the sheet along with more serious charges on the theory that they can get the accused on something, and also present the accused a quandary in deciding to testify or not. To me that's an abuse of discretion.

    For example, many of the allegations relate to situations were the spouses are legally separated. It would be my view that adultery should never be charged in such situations, even if the adultery is among service-members. Under the guidelines that is only one of several considerations.

    As to situations where the person is in the same command, aren't there other more appropriate charges, such as fraternization which impacts the unit, available?

    This is 2016, not the Victorian era.


    1. The news report Phil cites is well worth reading, as it includes the text of the Nigerian court-martial's reasons for judgment.


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