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The Consensual Sex Acts That Can Get You Kicked Out of the Military

Threesomes, adultery and even flirting can result in a dishonorable discharge

Much of Jesse Riemer’s job as a recruiter in the Wisconsin Army National Guard was, naturally, dealing with new recruits. But according to court documents, after he took nude photos of a junior-ranking soldier, invited others to be part of a threesome and had an ongoing affair with a subordinate while he was married, he was court-martialed and eventually kicked out of the Guard.

Riemer was charged with 13 offenses based on detailed statements given by a number of recently enlisted female soldiers, according to court papers. Among the specifics, as outlined in court documents: “Making inappropriate remarks to a junior soldier about a tattoo on her buttocks”; “engaging in an inappropriate relationship with a junior soldier by wrongfully and repeatedly inviting her to join him for drinks”; “requesting that a junior soldier be part of a threesome with him and another”; and “wrongfully, as a married man, having sexual intercourse with a woman not his wife.”

He pled guilty to six of the charges; the others were dismissed. He was sentenced to 30 days confinement and given a bad-conduct discharge.

Overall, there were 6,172 reports of sexual assault involving service members during the last fiscal year, according to the Department of Defense, which estimates “about 14,900 service members experienced some kind of sexual assault in 2016,” according to a recent report. (The discrepancy is owed to rates of victims reporting — only about one in three do, according to that same report.)

In Riemer’s case, however, there were no rape or sexual assault charges. In fact, one of the charges, according to court papers, pertained to “an ongoing romantic and sexual relationship.”

But the military has a different code of conduct than the civilian world—one where even asking someone out for drinks can, in certain contexts, be criminal.

“Everyone understands that rape and sexual assault are criminal regardless of whether you’re a civilian or in the military,” says Rachel E. VanLandingham, associate professor of law at Southwestern Law School and a former judge advocate in the U.S. Air Force. “But in the military, you can’t be friends with whomever you want to, because somebody might have to order other people around, and it’s difficult to order people around when you’re drinking with them on a Friday night.”

VanLandingham clarifies that a commander wouldn’t be likely to send someone a court martial the first time they were seen having a drink with a subordinate. But fraternization can definitely become criminal. “The military code can be very creative with charging,” she says. “The military can criminalize anything and has several catch-all provisions in its criminal code.”

The Uniform Code of Military Justice, the foundation of military law, contains 146 articles, addressing everything from espionage to sodomy (though, in 2013, Congress finally lifted the military’s ban on consensual same-sex acts, as long as the relations don’t violate other military codes, like fraternization). And the catch-all provisions to which VanLandingham refers give the military an even wider berth when it comes to charging. Article 92, for example, criminalizes failure to follow an order, or being derelict in performance of duties.

In Riemer’s case, having an affair with a junior soldier and asking another to be in a threesome violate this law, according to court documents, because regulations prohibit relationships between soldiers of different rank “if they … compromise or appear to compromise the integrity of supervisory authority or the chain of command … [and are] perceived to be exploitive or coercive in nature.”

Article 134, called the General Article, is broader still, essentially punishing anything that makes the military look bad. “The military has a special concern about good order and discipline and that’s where adultery is criminalized in the UCMJ,” VanLandingham says. “Article 134 allows the military to criminalize speech, conduct and any other behavior that’s either to the discredit of the service or prejudicial to good order and discipline.” That’s why it’s sometimes called “The Devil’s Article,” a nickname given by the Brits, whose military code the U.S. borrowed from.

“Good order and discipline are linked to efficacy on the battlefield,” VanLandingham explains. “People have to depend on each other; people have to follow orders. Anything that can directly impact that can be criminal [in the eyes of military law].”

The Manual for Court Martial is even more specific, saying, “Adultery is clearly unacceptable conduct, and it reflects adversely on the service record of the military member.”

That said, in the military, “Adultery isn’t a crime by itself. In order for it to be charged it has to be adultery that’s prejudicial to good order and discipline,” VanLandingham explains. She gives some hypothetical examples: If a commander is sleeping with a married woman and has to choose someone to deploy and chooses her husband. Or, even among soldiers of the same rank, if one is sleeping with his battle-buddy’s wife. “What does that do to the cohesion of the unit?” she asks.

These aren’t purely hypotheticals, either: In 2013, research compiled by the Associated Press showed that 30 percent of the military commanders who were fired over a period of eight years lost their jobs due to sexually related offenses, like harassment and adultery. And in 2016, attorneys for an Air Force colonel who was charged with rape, assault and adultery attempted to get the adultery charge thrown out, arguing that particular regulation was unconstitutional. Critics, however, argued it was a move to distract from the more serious charges against him.

Either way, it didn’t matter—the colonel was found dead in his home, a reported suicide, shortly before his court-martial.

In Riemer’s initial appeal, he argued “that sentencing him to 30 days’ confinement and a bad-conduct discharge ‘for sending illicit text messages and unprofessional conduct’ would shock the public sentiment,” according to court documents.

But the military judge actually went relatively easy on him. The maximum sentence was five years and three months.

“The record … is that you are a good soldier, above average even,” the military judge said, according to court documents. “However, your conduct … which you’ve admitted to and accepted responsibility for, is a criminal military offense. … Your duties as a recruiter puts you out to the public as the epitome of what it means to be a soldier, to serve … and you failed. … There are at least six service members that you have adversely impacted by your actions, and they should have been protected against your actions which were inappropriate and predatory.”

Riemer’s attorney, Declan Binninger, declined a request for an interview, but he said his client won’t appeal the judge’s decision to a higher court. “SFC Riemer has elected to not seek further redress from the Wisconsin Supreme Court so the 4th District’s opinion is the final word on this issue for now,” he writes in an email.

The prong of Article 134 that VanLandingham finds troubling is the section that refers to punishing anything that discredits the military. She says in the past it’s been used to criminalize protected speech and to go after gay servicemen and -women. “Our Founding Fathers were terrified of a standing military,” she says. “It was a direct threat to democracy. Standing militaries take over the government! The fact that people didn’t like the military and were suspicious of them was considered right at that time. So why are we criminalizing behavior if the only thing we think is criminal about it is that it brings the service into disrepute? That’s unconstitutional.”

The Supreme Court, however, disagrees, holding that Article 134 isn’t “unconstitutionally vague” and that the military is a “specialized society separate from civilian society.”

“The military has, again by necessity, developed laws and traditions of its own during its long history,” William Rehnquist wrote in the Court’s opinion on Parker v. Levy, a case that brought into question the constitutionality of Article 134. “The differences between the military and civilian communities result from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’”

So what might seem baffling to a civilian connects directly back to one of many necessary rules for national security for an enlisted soldiers.. “If their commander says ‘Go walk into that barrage of bullets,’ they have to go do it,” VanLandingham says. “Our national security depends on it at some level. The military’s long argued, and rightly so, that their efficacy depends on a different standard of conduct. That’s why military members are typically revered. Because they’ve sacrificed something. They’re expected to hold their behavior to a higher level.”