When Is It a Crime to Have an Affair?

CIA Director Gen. Davis Petraeus shakes hands with biographer Paula Broadwell in this 2011 photograph. Petraeus' affair with Broadwell led to his resignation. Click to enlarge this image. Getty
Getty

When former CIA Director David Petraeus cheated, questions were raised about the legality of public officials having affairs.

With headlines trumpeting each new detail in the sex scandal involving former CIA director David Petraeus, biographer Paula Broadwell, Gen. John Allen and Tampa socialite Jill Kelley, questions have risen about the legality, security and privacy of public officials having affairs.

When is it a crime to have an affair? Can affairs compromise national security or are Americans just prudish? Why can foreign dignitaries indulge in salacious private lives without repercussion, while Americans face career-ending public scrutiny?

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Today's focus is on the announcement that U.S. Secretary of Defense Leon Panetta is withholding Allen's nomination to become NATO's supreme allied commander as flirtatious email exchanges between Allen and Kelley are investigated.

Whether the investigation will turn up any wrongdoing is questionable. Many have also questioned whether an affair should have prompted Petraeus to resign.

While the military condemns affairs -- adultery, in military parlance -- for members on active duty and retired officials who receive military compensation, the Uniform Code of Military Justice specifies that the act must also discredit the military.

"It's difficult to prosecute because in order to punish the crime of adultery criminally, you have to show how it impacts negatively on the military," said professor David Velloney, Regent University School of Law, who spent 20 years on active duty in the Army. "I think the reason it's on the books is to keep a certain amount of decorum and discipline in a unit, especially in a war zone."

Petraeus, of course, is not on active military duty. But Velloney suggests that some may be interested in the precise timing of the affair because the military rank at retirement is set at the last honorably served rank. (The New York Times published a list of senior officers punished over the last year for a variety of reasons.)

Even if all was above-board legally, many cite the threat of blackmail that affairs may carry as a breach of security.

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"Extramarital affairs are viewed as risky for any high-level official, particularly intelligence officers, because of the potential for blackmail," Velloney said. "Because intelligence officers are keepers of information that could harm national security if released, they are held to a high standard and their personal lives are scrutinized to ensure that their integrity is not compromised."

And affairs can often lead to unauthorized access to classified information. While it's unclear whether Broadwell had classified information on her laptop, FBI investigators say they concluded there was no security breach, and Petraeus and Broadwell have denied that he was the source of any sensitive information.

"We're not there to be the moral police," a former intelligence official told Wired. "The only question is: Does it create a vulnerability that a foreign intelligence service could exploit."

Still, in other countries, private lives of public officials are more likely to stay quiet. In fact, it's only fairly recently in American history that we've come to adopt a different standard, said Brian Linn, a military historian at Texas A&M University.

"I don't think we're any more morally correct; I just think our morality has changed," Linn said, noting that more serious issues of abuse of the office -- such as giving misinformation to Congress -- seem to be glossed over more than sexual scandals.

"Generals have had affairs in the past, and people have sort of known about it -- did it affect their abilities to command? Not that I could see. And was it publicized by the media? No. It wasn't considered newsworthy," Linn said. "So any historical comparison (to the Petraeus case) is difficult to make."

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Others agree that the media frenzy has gotten out of hand.

"My immediate gut is like this is the National Enquirer," Sen. Dianne Feinstein (D-Calif.), the chairman of the Senate intelligence committee, said in an interview on CNN.

"It's very sad for General Petraeus and it's sad for the U.S. Military," Linn said. "He did a great deal of good for the country and it's sad that people will forget all of that and focus on this one really insignificant incident."

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