There's a good reason friends and confidants of retired Gen. David Petraeus are insistent that his extramarital affair with biographer Paula Broadwell began in November 2011, two months after he resigned from the Army to take the top job at the CIA. Under the Unified Code of Military Justice (UCMJ) and its Manual for Courts-Martial, adultery is a crime, with punishments as severe as dishonorable discharge, loss of all benefits (including pension), and even a year in jail.
Unfortunately for Petraeus, though, retired officers are "subject to the UCMJ, for life," and he could still be stripped of his $200,000-a-year pension, Yale military law expert Eugene Fidell tells TIME. Chances are that officials won't go after Petraeus this way, although the Army has chosen to prosecute retired generals for adultery and other misconduct in recent years, so Petraeus certainly isn't out of the woods. And the criteria for military courts to decide if an extramarital affair is "of a nature to bring discredit upon the armed forces" don't balance out in Petraeus' favor: He was his generation's most celebrated four-star general, and both he and Broadwell are married.
But why is consensual sex between two adults even considered a crime for military personnel? asks Daniel Burke at Religion News Service. "The rules may seem archaic to modern Americans, but they are essential to the military" — and contrary to what you might think, they "are not based on religion, biblical or otherwise."
"It has nothing to do with a religious version of what morality is and everything to do with maintaining good order and discipline," says Pentagon spokesman Lt. Col. Todd Breasseale. Officers and soldiers entrust their lives to one another, and if, say, a general were sleeping with the wife of an enlisted solider, "his decision-making would rightly be second-guessed," causing "a ripple-effect through the unit."
Let's take a worst-case scenario: Imagine King David, which just happens to be what some in the military called Petraeus, says Burke. The Israeli king was famously disgraced after his affair with Bathsheba, who was married to a man named Uriah. "Bible readers may remember that King David ordered his troops to abandon Uriah on the battlefield so that the cuckolded husband would be killed."
That's all fine and good for ancient Israel, or even for 1775 — the year most of the relevant UCMJ language was written, says William Galston at The New Republic. But let's face it, "throughout our history, leading generals — in all probability including Dwight Eisenhower while he was supreme commander of the Allied forces — have engaged in adulterous affairs," and the Army is no worse off for it. The idea that infidelity brought down Petraeus in 2012 is simply "madness."
Can anyone seriously argue that public norms have remained unchanged for the past 300 years? The U.S. military is not — and should not be treated as — a hermetically sealed world. It is part of our society. Adultery is not per se a disqualification for the presidency (Roosevelt, Eisenhower, Kennedy, Clinton), nor is it more generally for positions of military and civilian leadership. It's time to update our military code, not to subject our leaders to the dead hand of the past.
Thanks to Petraeus, the question of punishing infidelity is actually the subject of a heated though "quiet discussion in military-spouse circles," says Alison Buckholtz at Slate. One military wife whose husband cheated on her several times on overseas assignments argues that "the military has a moral responsibility to spouses to enforce rules forbidding adultery." For her, entire military families are "literally at the mercy of military commanders," so it's up to them to look after her best interests.