Lawyers for a Schriever Air Force Base colonel argued Monday that a half-dozen adultery charges against him should be thrown out because the military's law banning extramarital sex discriminates against heterosexuals.
Col. Eugene Marcus Caughey is headed for an August court-martial on charges of rape, assault, taking a dirty selfie and the adultery counts. He was in court Monday for a formal reading of the charges and to argue pretrial motions.
Maj. Keith Meister, one of three attorneys defending Caughey, told Air Force judge Col. Wes Moore that the military's definition of adultery as sex between a man and a woman hasn't keep place with its definition of marriage, which now includes same-sex couples. That's because the military's adultery law requires "sexual intercourse" as an element of guilt, which the Pentagon defines as an act between a man and a woman.
"A homosexual man or woman couldn't commit adultery as defined," Meister argued.
Caughey's defense team maintains that because gay people get a pass, the charges violate the colonel's rights under the 14th Amendment, which mandates equal protection under law.
The military is one of the last entities in America that pursues adultery cases. Colorado repealed its adultery laws in 2013. The Pentagon has said that stopping troops from stepping out on their marriages is vital to maintaining discipline in the ranks.
Prosecutor Maj. Brian Mason told the judge that gay people who break marriage vows can also get into trouble in the military under the 134th article of the Uniform Code of Military Justice, which forbids "all disorders and neglects to the prejudice of good order and discipline in the armed forces."
"Both of those could be charged under Article 134, regardless whether it's heterosexual or homosexual," Mason said.
Adultery is one of the smallest problems Caughey faces at trial. If convicted on all six counts, he faces up to 12 years behind bars. The two rape counts the colonel faces could bring life terms.
The case against Caughey started last year after an inspector general's inquiry led to a criminal investigation. Allegations date back to 2013, with rape charge stems from a late 2014 incident at Schriever. He also faces a second rape count and two counts of abusive sexual contact.
Caughey also is charged with violating orders and conduct unbecoming an officer -- a charge that stems from Caughey allegedly photographing his genitalia "while in uniform and seated in his office."
In closed-door sessions Monday, Caughey's attorneys argued evidentiary motions on the sexual assault charges. The sessions, held in secret to maintain the privacy of alleged victims, focused on evidence that would usually be barred from court under the military's "rape shield law," which forbids most testimony on the sexual history of rape victims.
Another motion showed how difficult it is to try an officer as senior as Caughey in military court.
A 24-year veteran, Caughey was vice commander of Schriever's 50th Space Wing when the allegations arose -- the No. 2 post in a unit that control's military communications and navigation satellites. Military law requires he be tried by a panel of officers who are equal or senior to him in rank.
Caughey's civilian attorney, Ryan Coward of Colorado Springs, wants the 14 prospective jurors -- two brigadier generals and 12 colonels -- to fill out a survey that outlines their relationship with Caughey and their knowledge of the case.
He told the judge that because the officers hold high positions in the Air Force, it's likely they have knowledge of the high-profile case, requiring an extra step in the jury selection process, called voir dire. Prosecutors said they're lining up high-ranking backup jurors in case others are disqualified, and called the survey unnecessary,
"Col. Caughey faces life in prison," Coward argued. "He has an absolute right to meaningful voir dire."
The judge is expected to issue written rulings on the defense motions prior to the August court-martial.