yucky is unbecoming

Quick question.

Does anyone know whether the Code of Military Justice prohibits incest?

William Saletan claims that it does,

Technically, the Uniform Code of Military Justice and the Manual for Courts-Martial prohibit sodomy, bigamy, adultery, “wrongful” cohabitation, and incest.

Except the link he provides does not prohibit incest; it merely lists incest as an example of the sort of crime which cannot give rise to a conspiracy charge between the two parties:

There can be no conspiracy where the agreement exists only between the persons necessary to commit such an offense. Examples include dueling, bigamy, incest, adultery, and bribery.

That language does not prohibit incest. I figured it might be listed along with the sections that prohibit homosexuality and adultery, but then I read that adultery itself is nowhere specifically prohibited. Instead, it falls into the catchall rubric of Article 134:

Articles 77 through 134 of the UCMJ encompasses the “punitive offenses” (these are crimes one can be prosecuted for). None of those articles specifically mentions adultery.

Adultery by members of the military is rarely prosecuted, but could be prosecuted under Article 134, which does list adultery as coming under the “General Article.” Article 134 (60) does not prohibit adultery, but simply prohibits conduct which is of a nature to bring discredit upon the armed forces, or conduct which is prejudicial to good order and discipline.

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Incest is not listed at all, but I suspect that Article 134 could be said to include incest if it became publicly known that a soldier did that. There was, BTW, a famous military incest prosecution in the 19th century, and according to a reviewer, they not only used the catchall language, but refrained from specifying the details of the underlying conduct:

Army Captain Andrew J. Geddes for ‘Conduct Unbecoming and Officer’. He accused another officer, Lieutenant Louis H. Orleman, of incest with his daughter Lillie. Orleman preempted the charges of Geddes by filing his own complaint that Geddes tried to seduce and abduct his daughter. The act of incest was so unspeakable at the time (1879), the Army chose to court marshal Geddes instead Orleman for ‘Conduct Unbecoming’ with specifications ‘not fit to be specified’.

It would be unconstitutional to impose a general prohibition on civilians, because a law which prohibited, say, “all disorders and neglects to the prejudice of good order and discipline,” or “all conduct of a nature to bring discredit” would be void for vagueness. But the military does not have to abide by the same standards.

Anyway, I found no specific prohibition on incest in the UCMJ and I got tired of looking.

Anyone who knows military law feel free to chime in.

I think that incest would be “conduct unbecoming” because for the vast majority of people — whether in the military or not — it triggers the “yuck factor.” And obviously, what triggers the yuck factor varies over time. A majority of Americans once thought that homosexuality was yucky; today a majority do not believe it should be a bar to employment or military service.

“Yuckiness” seems to be dictated by majority sensibilities of the time. Cockfighting was once a very popular sport in this country, and a number of presidents were aficionados. It would not surprise me if two soldiers today were caught pitting cocks, they would be subject to discipline (especially if the media got hold of the story), because so many people are horrified by the sport today. According to a discussion here, they could be — but again it would fall under the “conduct unbecoming” catchall of Section 134. But there is a push to add a specific cruelty to animals section to the UCMJ. Until that passes, cruelty to animals would be treated like incest. Both are unbecoming.

UPDATE: Many thanks to Glenn Reynolds for the link — especially for spotting an obvious irony that I missed. (Personally, I think it will take a lot more than legal incest to restore ROTC to Columbia, though…)

A warm welcome to all. Comments appreciated.


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14 responses to “yucky is unbecoming”

  1. Sayyid Avatar
    Sayyid

    “Indecent Act” seems to be the catch-all that fits for incest.
    Art. 120. Rape, sexual assault, and other sexual misconduct
    (k) Indecent Act.– Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.
    (t) Definitions.– In this section:
    (12) Indecent conduct.– The term “indecent conduct” means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

  2. GreenOnions Avatar
    GreenOnions

    I’m a JAG and until recently was a prosecutor for the past 3 1/2 years (since moving on to less stressful work).
    Yes, Article 134 is the general article and would permit an incest prosecution. It allows for trial by court-martial of conduct prejudicial to (1) good order and discipline, or (2) conduct which was of a nature to bring discredit upon the armed forces. (3) We can also prosecute federal crimes under Article 134 as well as certain state crimes under the Assimilative Crimes Act (but they become Art 134 offenses).
    While Article 134 has several enumerated offenses (adultery being one), that is not an exhaustive list. Basically, if a guy does something so creative that the UCMJ hasn’t covered it, yet it is prejudicial to good order and discipline or service discrediting, there’s an avenue there.
    That incest is not specifically listed doesn’t mean much since the UCMJ also has no specific prohibition on possessing child porn, yet we prosecute that all the time (under Art 134 and the federal law).

  3. Jim S. Avatar

    Article 134 is the catch-all. It forbids whatever they want it to, just in case they can’t make any other case against you. So I’m confident that, yes, it includes incest.

  4. Maureen Avatar
    Maureen

    The UCMJ assumes that military people are responsible enough to carry a weapon and know right from wrong and order from chaos, and therefore assumes that not every potential crime needs to be specified in detail. The inclusive vagueness of various charges was also meant to prevent “barracks room lawyers” from claiming that why, garsh, they had no idea that smoking ziggityzag could possibly be wrong since it wasn’t listed explicitly as an illegal substance.
    Of course, nowadays people claim that garsh, they had no idea that anybody would be so bigoted as to claim that anything was wrong or right, so civilian law has a tendency to make every possible thing explicitly illegal. The UCMJ is an exception to that.

  5. nathan of brainfertilizer fame Avatar
    nathan of brainfertilizer fame

    The Left owes Rick Santorum a huge apology.
    It won’t be forthcoming, of course.

  6. ken in sc Avatar
    ken in sc

    In most cases incest would be covered by article 120, Rape and Carnal Knowledge. It would depend on the age of one of the parties. Otherwise it would be article 134 as you mentioned. Or 133 if an officer is charged. I know of a guy who was court-martialed for getting a blow job from his wife under the table at a party in the officer’s club.

  7. B Dubya Avatar
    B Dubya

    Incest would not go unpunished under the UCMJ. The offending servicemember would probably be charged under atricle 134 and article 125 (Sodomy).
    Article 125 defines the act as “(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense.”
    To consider the act of incest as “unnatural carnal copulation” is a no-brainer in the military environment.
    By the way, the revokation of the DADT regulation in no way immunizes or relieves service members of culpability for engaging in sexual activity under the UCMJ. That is true of all homosexual acts and any heterosexual acts outside of marriage or that would be considered “unnatural carnal acts”.

  8. Donald Sensing Avatar

    Adultery is prosecuted a lot more than you seem to think. When I was an Army commander, I certainly did send a couple of guys to prison for it. What makes it easier to do is that adultery cognizable under UCMJ is, through circumstances of the offense, often only one of a number of charges that can apply.
    Also, when a service member commits rape, if either he or the victim is married, the trial counsel (prosecuting attorney) pretty much always also charges adultery, since consent or its lack has nothing to do with the elements of proof of adultery. It is the adulterous sexual act itself that is proscribed.
    If gay marriage is ever federally legalized, it will be interesting, to say the least, to see what happens when one gay married partner has a dalliance with another man or woman. Will the same standards apply? Oh, don’t be silly, you know they won’t.

  9. Joe Blow Avatar
    Joe Blow

    >>>I know of a guy who was court-martialed for getting a blow job from his wife under the table at a party in the officer’s club.
    Funny, not shocking though. Lot of interesting characters in the military. Some of the interestingness isn’t so savory though.
    I knew of an officer, perfectly solid guy, who was called by the MPs and asked to go home and get his wife under control. She was on the lawn in front of the house in on-post housing, freakin’ with the family’s great dane. Pretty much ended his career right there not because of any crime he committed but because it was assumed that the guy had very poor judgment and/or character to freely associate with such a person. Of course under Lawrence v. Texas I don’t see how you can possibly prohibit freakin’ it with the family dog, since it’s purely personal behavior and the dog is chattel that the owner can dispose of as he or she wishes, and banning bestiality is just a moral choice, which Justice Kennedy made clear cannot possibly form a rational basis for a law…

  10. Retired Colonel Avatar
    Retired Colonel

    -I’m neither a lawyer nor a JAG, but…
    -After a quick review of the UCMJ I agree with nathan’s comments with consideration of one addition, that being Article 125, Sodomy, if that was part of the sexual agenda.
    -It will be interesting to see how Article 125 fares in the wake of the repeal of DADT.
    -Article 134 is, of course, a general tool covering “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty.”
    -If anyone thinks these Articles are somehow “unfair” they need only to examine Article 88, Contempt Towards Officials, to see how restrictive military regulations can be.
    -I lived with them for almost 40 years and would much rather be tried in a military court than in the civilian justice system.

  11. PTL Avatar
    PTL

    but it qualifies you to teach at Columbia University and make derisive comments about others’ morals.

  12. PTL Avatar
    PTL

    p.s. or as they say at Columbia “vice is nice,
    but incest is best.”

  13. RetiredE9 Avatar
    RetiredE9

    Adultery is prosecuted a lot more than you seem to think. When I was an Army commander, I certainly did send a couple of guys to prison for it.
    Bullshit. No one has gone to jail over adultry. I was a criminal investigator for 28 years and the only punishment I ever saw for adultry was a other than honorable discharge.