Flinn Case Illustrates Gap in Military, Civilian Law

As the uproar over the case of Air Force 1st Lt. Kelly Flinn begins to recede, unanswered questions persist over how the United States armed forces deal with adultery and consensual sex between ranks.

At issue is whether the criminal status of adultery in the military is appropriate amid the leap in the recruitment of women and contemporary societal values. The way the military handled its first female B-52 pilot also calls attention to the inconsistencies with which different services approach relations between sexes.

"We are talking about a military code largely unchanged from times when women were only 2 percent of the force," says University of Maine Law School Dean Donald Zillman, a former Army judge advocate. "We are now a 13 percent female military. Human beings being what they are, you need to address some of the sexual-contact implications."

That doesn't mean the military should stop regulating liaisons, experts say. But the military code should better reflect the way adultery is dealt with in civilian society. Experts reject the idea it must be harshly punished to preserve the respect and prowess of the military, as the Pentagon argues.

With men and women of different services working more closely because of the post-cold-war rise in joint operations, there is also a need to rationalize the services' divergent rules on fraternization, specialists say. Only liaisons that threaten discipline and morale, bring undue favor, or disrupt chains of command should be prohibited, they argue.

In an acknowledgment of the need for improvements, the Pentagon had begun an informal study of fraternization rules before the Flinn case. Cynthia Enloe, a professor at Clark University in Worcester, Mass., and author of a book on sexual politics, says the military's failure to deal with these issues looms larger than Lieutenant Flinn's transgressions. "Her dishonesty is like a drop in the bucket compared to the dishonesty of the institution."

Some experts point to the little-known case of Air Force Lt. Col. Karen Tew as more striking proof of the need for reform. A 19-year veteran, Colonel Tew pleaded guilty to fraternization in a court-martial in March at Scott Air Force Base in Illinois. Several days after receiving a dishonorable discharge, she killed herself.

For now, the Pentagon appears comfortable with the penalties of up to one year in jail and a dishonorable discharge for adultery under military law. Many believe a reason is that the armed forces have internal ways of dealing with cases other than the high-profile court-martial Flinn averted by accepting a general discharge.

The decision to prosecute adultery is left to the discretion of local commanders. A few cases, such as those involving senior officers, end in deals like Flinn received or in forced early retirements. A larger number, they say, are handled through administrative penalties. Many are ignored.

"If you court-martialed everyone in the services who committed adultery, you would no longer have a Navy," says Jim Klimaski, a Washington-based lawyer who handles military cases.

Experts point to what they consider other double standards. While courts-martial for adultery in the Air Force have quadrupled in the last decade - other services say they don't keep statistics - no officer has been prosecuted solely on adultery charges since 1985.

Prosecutors often couple adultery charges with other allegations. The aim is to maximize the severity of cases the military considers egregious breaches of "good order and discipline." Flinn, who was also charged with lying and disobeying orders, fell in this category.

"It is the lack of integrity and disobedience to order that has been of primary concern to the Air Force," Air Force Secretary Sheila Widnall said in denying Flinn's request for an honorable discharge.

Finally, analysts say, commanders are aware of far more adulterous relationships than they choose to pursue.

As for fraternization, some experts believe the military's intrusion into relations between ranks should be limited. Liaisons that jeopardize a unit's performance and discipline should be barred. But others, such as those that are consensual and occur off base, should be permitted as a rule.

While the Army's regulations largely follow those guidelines, the other services are stricter. All this, says David Segal, a University of Maryland sociologist, means "it is time to revisit the whole issue of the degree to which the military reflects the society that it protects."

Still, many in the military understand the tough application of rules, especially in the Flinn case. To them, the issue was not improper romantic conduct. Whether "she had an affair is irrelevant," says Rosalie Chambers, an Air Force reservist who spent seven years in the nuclear-weapons field. "She failed to obey orders and allegedly lied during the investigation. She was dealt with fairly, and I don't think she was singled out as a female."

* David Moniz contributed from South Carolina.