Expert Commentary

Military and intelligence codes of conduct and ethical lapses: Research roundup

2012 review of analysis and scholarship that shed light on ethical issues relating to the U.S. military.

U.S. soldier saluting flag (iStock)

The issue of codes of conduct relating to personal matters for military and intelligence officials has risen to the forefront of public debate. What exactly are the rules — and what have been the cases and outcomes in recent years — for such officials? In any case, the ethical lapses of a number of senior U.S. military leaders — including several recent cases (see here and reports below) — have prompted a wider review by the Defense Department. For more on this, see the Washington Post‘s feature “Petraeus Scandal Puts Four-star General Lifestyle Under Scrutiny.”

The armed forces’ Manual for Courts-Martial United States states the following with regard to adultery:

To constitute an offense under the UCMJ [Uniform Code of Military Justice], the adulterous misconduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion or is clearly detrimental to the authority or stature of or respect toward a servicemember. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem. While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it may be determined to be conduct prejudicial to good order and discipline.

In the legal case of United States v. Orellana, 62 M.J. 595 (NM. Ct. Crim. App. 2005), the court explained the rationale for such rules this way:

[T]he military has a particular interest in promoting the preservation of marriages within its ranks. Because military families are often required to endure extended separations from a spouse due to operational commitments, commanders have a unique responsibility to ensure that the morale of their deployed personnel (and that of the spouses left behind) is not adversely affected by concerns over the integrity of their marriages.

Some journalistic analysis provides wider perspective on 2012 events: “For the Military, A Possible Fall from Grace,” from NPR; “Why Petraeus’ Affair Matters…,” from The Atlantic; “Concern Grows Over Top Military Officers’ Ethics,” from the New York Times; “Petraeus’ Affair: Is This Sex Scandal Different?” from the BBC; “The Petraeus Affair: The Ethics of a Scandal,” from Global Post.

In addition, some scholars have called into question whether committing adultery while a member of the intelligence community necessarily opens up an official such as Petraeus, then the CIA director, to blackmail.

The following are a sample of recent reports on military misconduct and academic papers that provide historical perspective on an array of related issues:



“Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed” (PDF)
Cox, Walter III. Duke Journal of Gender Law & Policy, 2007, Vol. 14:791.

Introduction: “This article is about the prosecutions of certain sex crimes in the armed forces, many of which may well not constitute offenses in our civilian society. In the military, a number of offenses arise out of sexual conduct that is noncommercial and consensual between, and even among, consenting adults. There are, of course, the classic common-law crimes of rape and a variety of assaults with the intent to commit some sexual act against the will of the victim. For example, Article 120 of the Uniform Code of Military Justice (UCMJ) proscribes rape and defines it by explaining: “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a courtmartial may direct.” Article 120 has been amended to define broadly the type of conduct to be punished under this title. This article is not about this classic common-law crime of rape, which is punishable in both military and nonmilitary settings. Rather, it is a discussion of sexual conduct that, while punishable if it occurs within the military, may well constitute lawful conduct in a non-military setting.”


“Report of Investigation, Lt. Gen. Patrick J. O’Reilly, U.S. Army” (PDF)
Inspector General, Department of Defense, May 2, 2012.

Summary: “Multiple witnesses testified that LTG O’Reilly yelled and screamed at subordinates in both public and private settings, such as video teleconferences and staff meetings. We also found he demeaned and belittled employees, and in at least one incident, demanded that a subordinate use profane language to admit to an alleged error made by the subordinate. LTG O’Reilly’s leadership style and actions resulted in the departure of several senior staff members, and caused his senior officials to hesitate to speak up and raise issues during meetings with him. We determined that LTG O’Reilly’s behavior and leadership were inconsistent with the JER’s emphasis on primary ethical values of fairness, caring, and respect for all DoD employees…. We provided LTG O’Reilly the opportunity to comment on our tentative conclusion. In his response, dated March 5, 2012, LTG O’Reilly disagreed with our conclusion, questioned the objectivity and accuracy of witness testimony, and denied he engaged in many of the practices described in the report.”


“Report of Investigation, Admiral James G. Stavridis, U.S. Navy” (PDF)
Inspector General, Department of Defense, May 3, 2012.

Summary: “Based on an anonymous complaint to this Office and information gathered in the course of the investigation, we focused our investigation on allegations against ADM Stavridis relating to his official travel, travel by family members on his dedicated military aircraft (MilAir), use of government resources and personnel, and the acceptance of gifts from foreign governments and non-governmental organizations.”


“Report of Investigation, General William E. Ward, U.S. Army” (PDF)
Inspector General, Department of Defense, June 26, 2012.

Summary: “We recently completed our investigation to address allegations that while serving as Commander, U.S. Africa Command (AFRICOM), then-General (GEN) William E. Ward engaged in multiple forms of misconduct related to official and unofficial travel, misused a government vehicle, misused Official Representation funds, wasted government funds, and misused his position.”


“Gentlemen Under Fire: The U.S. Military and ‘Conduct Unbecoming'”
Hillman, Elizabeth L. Law & Inequality, winter 2008.

Introduction: “When it comes to military crime, the officer corps of the United States military occupies a space both protected and vulnerable. Military justice itself is “officers’ country,” a venue in which officers not only control criminal investigation and prosecution but also serve as judge and jury. Yet officers themselves are rarely court-martialed. Many soldiers believe that officers are insulated against prosecution for wrongdoing by the political expediency of pushing blame to the lowest possible level, where it does not reflect as poorly on the judgment of military and civilian leaders. Others attribute the low number of officer courts-martial to the generally good behavior of officers or to the legal and political barriers to punishing individuals for acts that they did not themselves commit, notwithstanding the doctrine of command responsibility, which makes officers liable for crimes that they knew, or should have known, were being committed under their command. The privilege of rank, of course, does not protect all officers equally or absolutely, for lesser officers risk being sacrificed for those higher up the chain of command. Officers who escape court-martial can be punished through sub-criminal measures, such as administrative sanction, demotion, or career-derailing reassignments.”


“Military Sex Scandals from Tailhook to the Present: The Cure Can Be Worse than the Disease”
Browne, Kingsley R. Duke Journal of Gender Law & Policy, 2007, Vol. 14, No. 2, 749-789.

Abstract: “Over three decades after the birth of the all-volunteer force and sexual integration of the service academies, and over a decade since some combat positions — including aviation and service on warships — were opened to women, sexual integration continues to be fraught with controversy. The subject of sex — that is, sexual relations — is an integral part of the story. As harmful as the sexual behavior can sometimes be, the military’s reaction to it and the ensuing scandals are often even more harmful. This reaction – often driven by political considerations operating on the military’s civilian leadership and its congressional overseers — has been a repeated source of morale problems. A characteristic response to sexual issues has been to label men as sexual predators who require punishment and to label women as victims who require counseling (at most), irrespective of the willingness with which women participated in the challenged activities. These reactions create a substantial impediment to women’s acceptance.”


“Toward a Theory of Civil–Military Punishment”
Bessner, Daniel, et al. Armed Forces & Society, October 2012, Vol. 38 No. 4, 649-668.

Abstract: “This article addresses a significant question in American civil–military relations: under what conditions will civilian principals punish military leaders for shirking? In order to inductively derive a theory of civil-military punishment, the authors examine two cases of military shirking where there is little doubt that insubordination occurred. The first case the authors analyze is Douglas MacArthur’s insubordination under Harry Truman during the Korean War, and the second is Colin Powell’s scuttling of Bill Clinton’s plan to allow homosexuals to serve openly in the military in late 1992 and early 1993. This analysis indicates that two factors are linked to civil-military punishment. First, the salience of the issue at stake determines whether he or she decides to punish shirking. The second factor linked to punishment is whether or not the civilian has the military’s support to pursue punishment.”


“How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence”
Cohen, Andrew Darion. Fordham Law Review, 2010, Vol. 79.

Abstract: “Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans’ and marriage’s roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the ‘Establishment Clause prism,’ through which a facially legitimate state interest is delegitimized if substantially motivated by religious forces, this Note concludes that adultery bans are unconstitutional.”

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