The Differences between Military and Civilian Law: A Note of Caution about Off-duty Behavior

Written by Matt Silverstein (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner

It would be clear to most individuals when they look at the military that it is distinctive from civilian life.  Not just in the functions that it carries out, but in culture and many other aspects of everyday life.  Most would also probably be aware of the fact that the military has a parallel justice system that can punish members of the military for a variety of offenses.  However, many may not be aware of the types of offenses that are punishable under the Uniform Code of Military Justice (“UCMJ) and the broad sweep of behavior that can be regulated while one serves in the military.

The most notable of these behaviors that can be punished is adultery.  While many states may retain prohibitions on adultery on their statute books, they have long been unenforceable especially in the wake of the Supreme Court’s decision in Lawrence v. Texas in 2003 which reaffirmed the principle that sexual acts between consenting adults were beyond the power of the state to regulate.[i]  However, under the UCMJ, the military can and still does punish individuals who engage in adultery.  This may seem strange in this day and age that behavior of this sort would even be a concern for the government, as it is something that is deeply involved in one’s personal life.  However, the reasons for this have been made very clear.  Such acts are punishable because they are believed to harm the good order and functionality of the military.  A simple example can illustrate this point.  If a soldier has an affair with the wife of a superior officer or vice versa and the other spouse found out about such behavior, they are unlikely to be well disposed towards that soldier.  In fact, it would not be surprising if they are very hostile towards them given what may have occurred.  This would almost certainly affect one’s ability to take or give orders and raises the specter of unfair treatment of individuals based on personal grievances.  Because of this, and the need for the military to function as smoothly as possible, such behavior is not tolerated and can be punished quite harshly.

Other similar behaviors are also prohibited.  In particular fraternization between officers and enlisted men is explicitly banned.  Under Army Regulation AR 600-20, fraternization consists of a relationship that appears to present “undue familiarity” between soldiers of a different grade.[ii]    Thus it prohibits more than just sexual relationships.  Being close friends with a soldier of a different rank would likely be enough to qualify as fraternization.  Certain behaviors, like the selling of a car or home, as well as socializing at an event for an entire unit are exceptions to this otherwise stringent rule.  It may seem strange that type of behavior is also prohibited by the military but again the rationale is that in military life, an enlisted member must obey an officers orders and too close of a relationship between them may impair the ability for these orders to be carried out, much the same as the justification for the prohibition on adultery.

All of this serves not to criticize the military and its decision making process.  There are reasons to both agree and disagree with the military for how it handles these issues.  This post is meant more to stress to those who may be interested in joining the military that, once in the service, you are subject to a different standard of conduct than you are used to in the civilian world.  Simply put, you are held to a higher standard of personal conduct and this standard does not lessen when you are off-duty or not on base.  It is important to be aware that these avoidable issues can have legal ramifications while in the service and that they can, and have, cut short many a promising career.  Just remember to always be familiar with the rules that apply to you as a member of the armed forces and how these rules impact your life.

[i] Lawrence v. Texas, 539 U.S. 558 (2003)

[ii] 4-16 “Fraternization” referencing Part b of 4-14 “Relationships between Soldiers of different grade”