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#591207 - 12/23/09 01:34 AM Re: Adultery and asserting the fifth [Re: english7]
Redlegg Offline
Carpal \'Tunnel

Registered: 10/06/06
Posts: 27903
It is not a question of probability. You asked abotu the 5th, and it came out about the possibility of criminal prosecution. He is subject to prosecution under the UCMJ. Civilians are not. His use of the 5th protects him from prosecution under the UCMJ. There is no time limit on that.

The probability of prosecution exists regardless of rank. Contrary to what you believe, the possibility may actually be greater for a commissioned officer. There is a level of responsibility, that goes with a position. The higher the level of responsibility, the more serious a breach of ethics may be considered.

Look at the cases of MG Hale, and Gen Byrnes.

Fraternization creates the appearance of favortism, Adultery does affect the military. As a leader, you cannot expect the people you lead to follow the orders you give, if you are not willing to follow the laws as well. Adultery has nothing to do with justice for a spouse, or whether it is two members or not.

I have not, and will not speak to your specific case, I have no idea what happened. I do know adultery is almost impossible to prove. There are rules of evidence in the UCMJ, and just because something exists, does not mean it can be used. I have sat on more than a few courts martial and it is not as easy as people think, it is extremely fair. Generally Commanders do not make the call whether to prosecute on the non judicial level. They refer it to JAG, and JAG makes the call if should proceed or not. It is not a willy nilly, he did it, let's get it over with. Again, that is not to say whether your situation was fair or not. only how the system is supposed to work.

As to him using the 5th, his use of it prevents him from being prosecuted under the UCMJ, an admission in a different proceeding would be considered in a proceeding under the UCMJ. if he were to admit it under oath, it would be a slam dunk in a non judicial proceeding or a court martial. You are not allowed to consider the fairness or accuracy of a civilian proceeding, only the result of it.

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#591208 - 12/23/09 02:19 AM Re: Adultery and asserting the fifth [Re: Redlegg]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
"You asked abotu the 5th, and it came out about the possibility of criminal prosecution. He is subject to prosecution under the UCMJ."

Okay, I know this. He was investigated--and lower-ranking members were foaming at the mouth to nail him it seemed to me--and as far as I can tell, there was no punishemnt. He did not lose his gold leaf. Maybe he had to pay a fine, don't know. But whatever, they decided, he still has his career. Okay with me. I know what it is like to lose that, and it's really horrible. But, and maybe I'm not explaining myself well here, if the UCMJ did not punish him (or maybe minimally) how could admission of adultery in a civil court make any difference now? Do you see what I mean?

"The higher the level of responsibility, the more serious a breach of ethics may be considered." That's what I always believed, but I have not seen evidence of that.

"Adultery does affect the military. As a leader, you cannot expect the people you lead to follow the orders you give, if you are not willing to follow the laws as well. " This would only affect a leader's ability to lead IF it appeared that the member had committed an act that went unpunished. They very effectively buried the case of DV. Servemembers who helped me get away later turned against me.

"I do know adultery is almost impossible to prove. There are rules of evidence in the UCMJ, and just because something exists, does not mean it can be used." I know the three rules needed. His case meets rules one and two. Rule three negates the first two.

"I have sat on more than a few courts martial and it is not as easy as people think, it is extremely fair." Sounds just like what his Col told me. But I KNOW, KNOW, KNOW that what was presented in my absence (DV, here) was what the FA wanted to present, not the entire truth!!!!!!!!!!!!!!!! She did not want to find him guilty of anything. That was crystal clear from our conversations. She left out sexual abuse and his history of violence and probably other things. I know she did b/c she told me on the phone that she would not report those things. I had no say in it. I was in NY and could not afford to go to VA to speak on my behalf.

"It is not a willy nilly, he did it, let's get it over with." I know this. It is carefully considered.

Okay enough of my feelings of injustice. My reason for posting was to ask about his use of the 5th. "an admission in a different proceeding would be considered in a proceeding under the UCMJ." I guess this is what I'm trying to figure out. How will a civil proceeding affect a military proceeding, if the military proceeding already occurred and had a positive outcome for him. Would a second proceeding make any difference?????

I am not trying to nail him for adultery. In VA it is considered a crime but the fine is only a max. of $250 and is almost unheard of. I am not taking him to court for adultery. I am trying to obtain a divorce with grounds.

I have to say that if he were civilian, we would not have to be dealing with these factors which seem to insulate him at every turn. I feel like I'm being forced to go along with a no-fault when there is so much fault. It's not right, Red.

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#591209 - 12/23/09 02:34 AM Re: Adultery and asserting the fifth [Re: english7]
Redlegg Offline
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Registered: 10/06/06
Posts: 27903
You are trying to obtain a divorce on grounds in VA. You are using adultery as a part of it. In the other thread you said you had no idea what happened. Was he charged, was he exonerated? if you do not know what happened, then assume nothing happened. if he were to admit adultery in a civilian proceeding, that would be considered an admission in a military proceeding. He would not be able to claim he was wrong in the civilian proceeding. If he is not prosecuted in VA for adultery, he can be in the military, based on his admission in VA, or civilian court. So even though he is in the VA court system for divorce, an admission of adultery could be used against him in a military proceeding. So if you know that he was charged and found innocent, that is one thing. But not knowing is another issue. This is not speaking to the fairness of either, only as to how they can be linked.

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#591210 - 12/23/09 02:48 AM Re: Adultery and asserting the fifth [Re: Redlegg]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
I don't know how it all ended. I was told not to call the officer to inquire (unless I had additional info), so I didn't. It all went silent after they talked to me. Then he deployed to Iraq. Then to S. Korea.

I have no idea how things turned out for him. Should I call the guys who I spoke to? Should I email them? Will this even matter at all?

I feel like I'm stuck with not being able to pursue adultery as a ground. If I do, he will maybe lose his career.

This does not happen in civilian life. That's why I think it is so wrong to have military courts judge these things. But again, they claimed to have investigated him so well already, and nothing serious came of it. If that is really so, I can't see how the issue of adultery in civilian court will hurt anything.

Here's maybe the thing. Did he lie about adultery to the military (I've been told he did)--but for some reason thinks he can't lie in civil court?? Please consider this, Red. Something stinks here.

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#591211 - 12/23/09 02:53 AM Re: Adultery and asserting the fifth [Re: Redlegg]
BeachBabeRN Offline
Carpal \'Tunnel

Registered: 01/17/06
Posts: 3236
Loc: VA for 21 years, NC forever!
It is also very rare for someone, ANYONE to be prosecuted for adultery in a court. I've worked with a lot of CA's in my lifetime and I don't think I've ever heard of someone being criminally prosecuted for adultery.

Although adultery is grounds for divorce in Virginia, it is rarely taken into account for support, child support or any type of rehabilitative maintenance.

I do understand how you feel, that he's essentially getting away scot free with something both in the military and in the civilian world but thinking that the adultery will have any bearing on the financial outcome is shortsighted, IMHO.

I know you don't want to hear anything from me, but if you honestly believe that adultery will get you something more, then go for it. I just don't think it will, especially based on the length of your marriage.

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#591212 - 12/23/09 02:55 AM Re: Adultery and asserting the fifth [Re: BeachBabeRN]
BeachBabeRN Offline
Carpal \'Tunnel

Registered: 01/17/06
Posts: 3236
Loc: VA for 21 years, NC forever!
You've said before that you have the evidence to prove his adultery.

File on the grounds of adultery, it'll probably go to trial but understand that it will cost a fair bit of money to obtain your divorce and without a criminal verdict, this can't be opened again by the military. Even a divorce decree that demonstrates adultery as the grounds for divorce may not get that reopened again.

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#591213 - 12/23/09 02:56 AM Re: Adultery and asserting the fifth [Re: english7]
Redlegg Offline
Carpal \'Tunnel

Registered: 10/06/06
Posts: 27903
If he lied to the military, then it makes sense that he would take the 5th. That much is pretty clear.

You are right, it does stink. How can he tell the truth about the adultery in VA, and ruin his career in the military. if he were to ruin it, he did it all by himself, that is not something you did.

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#591214 - 12/23/09 03:00 AM Re: Adultery and asserting the fifth [Re: Redlegg]
Sherron Offline
Carpal \'Tunnel

Registered: 11/25/06
Posts: 20729
"I feel like I'm stuck with not being able to pursue adultery as a ground. "
I'm not sure I understand... why is it so important to you to have adultery, or anything, as grounds for divorce?

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#591215 - 12/23/09 04:35 AM Re: Adultery and asserting the fifth [Re: Sherron]
Redlegg Offline
Carpal \'Tunnel

Registered: 10/06/06
Posts: 27903
File on the grounds of adultery, it'll probably go to trial but understand that it will cost a fair bit of money to obtain your divorce and without a criminal verdict, this can't be opened again by the military. Even a divorce decree that demonstrates adultery as the grounds for divorce may not get that reopened again

It would not be reopened by the military. The military does not deal with divorce. It would be used as evidence of adultery by the military. double jeopardy does apply, but since he is taking the 5th, who knows what the military has done.

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#591216 - 12/23/09 04:44 PM Re: Adultery and asserting the fifth [Re: Redlegg]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
"double jeopardy does apply, but since he is taking the 5th, who knows what the military has done."

Must be they let it go or else he lied and they swallowed it. He might not get away with that in a civil court. I can't come up with any better understanding of this.

Thanks everyone for your thoughts on this.

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