Two steps forward, one step back: why the new UCMJ's rape law missed the mark, and how an affirmative consent statute will put it back on target

Army Lawyer, August, 2007 by Jennifer S. Knies

[T]he force used may vary depending opt the relationship and familiarity, if any, between perpetrator and victim, but the essence of the offense remains the same--sexual intercourse against the will of the victim. (1)

I. Introduction

The 2006 National Defense Authorization Act (NDAA) (2) answered the call for a much needed revision of the Uniform Code of Military Justice (UCMJ) (3) rape law. The media, military appellate courts, numerous study groups, and Congress itself voiced the need for reform of the military's rape law, which had remained virtually unchanged since the inception of the UCMJ. (4) The new statute, in many ways, takes a step forward in the military's struggle against sexual assault, but at the very heart of the statute, Congress missed the mark. The new law approaches rape and sexual assault as a crime of violence, placing a requirement for force at the center of the offense. This article will demonstrate that the core of the crime of sexual assault is not violence, but the violation of "sexual autonomy." (5) In order to provide a clear standard, prevent miscommunication, and "assist in maintaining good order and discipline," (6) the military sexual assault statute should require affirmative consent from both parties before sexual penetration.

An examination of the legislative intent shows that the authors crafted the new statute in the belief that, "[r]ape is an act of violence, anger, and power, distinguished by its coercive and sometimes brutal nature. The essence of rape is the force or coercion used by the defendant, not the lack of consent of the victim." (7) This article will argue that the opposite is true. Violation of the sexual autonomy of the victim is the heart of the crime. Rape and sexual assault are criminal because the unwelcome penetration intrudes upon the sexual autonomy, trespasses against the "bodily integrity," (8) and violates the privacy rights of the victim. A statutory definition of sexual assault that does not center upon lack of freely given and affirmatively expressed consent misses the fundamental nature of the crime.

Military law should be based upon the understanding of rape and sexual assault as a violation of sexual autonomy and bodily integrity. The current legal approach to rape and sexual assault is unique among contemporary jurisprudence. Nowhere else in the law is the victim shouldered with the burden of proving they did not consent. (9) Only in rape law is the victim expected to resist an attacker before the act becomes a crime. (10) Lastly, rape is the only crime in which the victim's silence is construed as consent]L The stark contrast of rape law to other laws is not arbitrary. There are both historical and practical reasons for the special treatment of the crime of rape.

Anthropologists and sociologists have conducted extensive research into the cultural history of rape and rape laws. (12) Feminist jurisprudence (13) on the crime of rape is vast and compelling (14) Although this article will provide brief summaries of some of this research for background purposes, the article's focus is on what is in the best interest of the U.S. Armed Forces and those who serve, rather than the sociological or feminist perspective. Indeed, the primary goal of the statute proposed by this article is to protect potential victims and potential offenders equally, and deter allegations and the occurrence of sexual assault in the military.

Aside from the historical reasons for the treatment of rape under current law, there are also legitimate practical explanations. Sexual interaction is, by its nature, a private and complex issue. Proof issues and fear of wrongful conviction have played a large role in forming the legal framework for the crimes of rape and sexual assault. (15) Over time, case law has evolved to modernize the UCMJ rape statute, partially correcting inequities generated by these historical and practical obstacles. Military appellate courts have clarified the limits of the resistance requirement, developed the doctrine of constructive force, and attempted to clearly define "consent" and "force." (16) Lately, however, the courts have signaled that they have reached the extent of reform available to them, and have called for reform of the statute itself. (17) The media and several study groups have also appealed to Congress for change. (18)

With the new statute, (19) Congress attempted to answer the criticism of the current rape statute. However, the statute does not adequately address many of the significant issues facing the Armed Forces in their attempt to eliminate sexual assault in the military. (20) A consent-based statute would better address these issues and concerns, but in the unique culture of the military services, a statute requiring affirmative consent would affect the greatest positive change and best serve the men and women of the armed forces.

This article proposes a military sexual assault statute that requires verbal affirmative consent before the act of sexual penetration, and argues that an affirmative consent standard will provide a clear standard, prevent miscommunication, and assist in maintaining good order and discipline in the armed forces. The complete statute proposed by this article is located in Appendix A. The background section will identify and discuss the prevalence of sexual assault and the ways in which it impacts the armed forces and degrades military readiness. Next, the article describes the growing trend among academia, legislatures, and courts toward viewing and defining rape in terms of sexual autonomy rather than force. Sections II.B and II.C describe the concept of affirmative consent and lay the foundation for the affirmative consent statute proposed by the author. Sections II.D and II.E provide an overview of the development of contemporary rape law in both the civilian sector and in the military. In doing so, they will highlight the historical tension between the true essence of rape as a violation of sexual autonomy, and the convenience of defining rape in terms of force. Sections II.F and II.G discuss the current military rape statute, as well as the criticism of the statute and other events that led Congress to reform the current military rape law. Section III of the article will review the new statute and its positive aspects, and then focus on where the new statute falls short. Specifically, this section discusses the significant drawbacks of defining sexual assault in terms of force, rather than sexual autonomy. Section IV explains the affirmative consent statute proposed by this article and compares it to the UCMJ offenses of assault, unlawful entry, and larceny. Section IV.B of the article then outlines the need for affirmative consent in the military and discusses the benefits of the proposed statute. Finally, Section IV.B addresses common criticisms of an affirmative consent statute. This section explains how the issues identified in the criticism are actually improved by the proposed statute as applied to the armed forces. The article concludes with the argument that the proposed affirmative consent statute will strengthen military readiness by producing a culture of respect for sexual autonomy.