Kicking and Screaming

Posted by Greg in Blog, Greg Jacob      2 comments

Jun
29

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As the National Defense Authorization Act moves closer to a vote, one of the more exciting things it will do is pull the powdered wig off of military law and drag it kicking and screaming out of the 18th century.  The NDAA not only gets rid of the archaic, intrusive, and rarely enforced sodomy statute – which has its roots in Assyrian law dating back to 1075 B.C.E. – it also revises the confusing and nearly incomprehensible rape law, Article 120, by making it simpler for investigators, prosecutors and the courts to understand. To give you some idea of how confusing the current statue is, the military has to send around mobile training teams to instruct personnel on how to make sense out of Article 120 and conduct a proper rape trial.

Although the proposed changes are substantive and will greatly help, the revisions to Article 120 do not go far enough to ensure offenders are convicted, military rapes decline, and most importantly that the military culture that foments these acts of sexual violence changes.

The new version of Article 120 only brings military law into the last century. What is lacking in the new version is a change in the way the military courts define rape. The military continues to adhere to a force-based definition of rape that dates back to colonial British law.  A force-based definition means that a rape is defined not by the actions of the perpetrator, but by the behavior of the victim.

In order to convict a rapist, military prosecutors must prove that there was sufficient force used on the victim to constitute non-consensual sex. The only way to prove this is to show that the victim demonstrated in some way that he or she did not want sex.  The courts will look at specific evidence that proves that the victim was not consenting, such as: Did he or she struggle? Did he or she scream? Was there physical evidence like bloody underwear or forensic photos showing that penetration was forcible? Was the victim abducted? Was the victim beaten? Was the victim bound? Were the clothes of the victim torn? Was a weapon used?

In the recent sexual assault lawsuit filed against former Secretaries of Defense Donald Rumsfeld and Robert Gates, one of the plaintiffs in the case testified that her perpetrator videotaped her assault.  A copy of that tape was found and shown to her commanding officer who stated that in his opinion the sex was consensual because the victim “did not struggle enough.” This illustrates is the problem with force-based rape laws, what does it mean to “struggle enough”?  There is no clearly defined line.

Compounding this issue is medical proof that in addition to the “fight or flight” response humans have to an attacker, another common reaction is for victims to “freeze” or exhibit some other type of dissociative behavior during the attack.  If a victim reacts by freezing, he or she will not be physically capable of resisting and thus cannot demonstrate to the degree necessary that the sex was non-consensual.

In practice, the current force-based Article 120 has shifted the evidentiary burden away from the actions of the perpetrator and onto the behavior of the victim.  Now defense lawyers no longer need to show that the perpetrator did not rape the victim.  All they need to do is demonstrate that the victim’s behavior was not enough to prove force.  That is enough to show that the victim “liked” it or “wanted” it and the sex was consensual.  This strategy can easily create a reasonable doubt in the mind of a juror with regard to consent and get the perpetrator acquitted. Since the focus is now on the activities of the victim,  the defense testimony invariably leads to a discussion of the victim’s sexual history, what he or she was wearing that night, if the victim was out late, if the victim had been drinking, if the victim was seen flirting or talking or hugging or kissing or sitting on the perpetrator’s lap, if the victim went home willingly with the perpetrator, etc.  Such a discussion can easily get the jury thinking that maybe the victim really did want to have sex after all, or led the perpetrator on, or sent some kind of signal that encouraged the perpetrator’s advances and that is what ultimately caused the assault. This process of victim-blaming often times re-traumatizes the victim tremendously and it is one of the primary reasons why other survivors of sexual assault do not report the crime.

This is how two ex-NYPD officers were recently acquitted of rape charges after repeatedly assaulting and brutalizing a woman who was so intoxicated that they had to escort her home from a bar. The woman was clearly too drunk to consent to sex, but she was also too drunk to put up a fight.  Under New York’s force-based rape law she could not prove by her actions that enough force was being used to call the sex non-consensual, therefore the officers were acquitted of rape. Plain old common sense would tell you that if a person is too drunk to speak or too drunk to stand they are too drunk to consent to sex, but unfortunately force-based rape laws are not based on common sense.

Over the past decade or so, more than three dozen states in the US have adopted some kind of consent-based rape law, throwing out their older force-based statues and in doing so many of these states have have watched prosecutions and convictions rise while seeing the number of rapes decline over time.

In a nutshell, consent-based statute requires that both parties verbally consent to having sex  prior to engaging in sex.  Anything other than that clear, affirmative consent by both individuals constitutes non-consensual sex.  It is also worth noting that this does not prevent consent from being rescinded at any time.

At SWAN we have been advocating for a change in the military rape law to reflect a consent-based statute instead of the archaic force-based statute.  In April I met with Armed Services Committee staff to discuss this idea and look over the DOD’s new Article 120.  The Committee hadn’t heard about consent-based statues and listened intently. We engaged in a 2 hour discussion about the issue, and although they didn’t endorse our affirmative consent recommendation, they did send the DOD’s new proposed Article 120 back for another round of revisions.

As a non-lawyer type this has been a real eye-opener for me. I’ve taken a crash-course in rape law and had conversations with some truly brilliant legal minds and military law practitioners. You might be asking what a military advocacy organization can bring to this discussion that a JAG or law professor can’t.  We bring perspective.

By looking at Article 120 strictly from a commander’s perspective it is easy to see that the true value of a consent-based Article 120 is how well-suited it is for servicemembers.  Members of the military will follow rules, even rules they don’t like, as long as they understand at some level what those rules are. A consent-based Article 120 would be clear and understandable to everyone, from Private to General.  I have seen time and time again, both as a Marine NCO and as a Marine Officer, that when it comes to military rules and policies if there exists any vagueness or “gray area”, soldiers will exploit that vagueness, even when engaging in sexual activities.

Affirmative consent laws are a good fit for the military in several different ways:

• Armed Forces personnel represent a younger, high-risk population that needs clear, trainable and enforceable rules.
• Affirmative consent is a bright line, a feature that is the hallmark of good military rulemaking.
• A consent-based statue increases prosecution of acquaintance rapes, which are the more common types of rapes experienced by servicemembers.
• A clear “yes” is required prior to any sexual penetration. Anything other than that is a rape.
• Verbal consent is teachable and trainable particularly in the controlled, disciplined environment of the military services.
• Responsibility for consent is placed on both parties – courts will be required to examine the conduct of both individuals and not just focus on the behavior of the victim.
• There will be less “he said she said” situations commonplace in military sex assault cases.
• Parties are treated as equals – this approach is effective regardless of the gender or sexual preferences of those involved.
• Consent-based laws support and encourage mature, open, responsible conversation among individuals about sex and engaging in sexual acts. This can help change culture.

In addition to individual JAGs, military law scholars and advocates, support for a consent-based rape law is seen throughout the military.  The Coast Guard Court of Military Review recommends a consent-based statute, the Court of Appeals for the Armed Forces is critical of what they call the “antiquated” force-based statute, and modern criminal law theory taught at the JAG schools support consent-based statues.

If the military changes Article 120 to a consent-based statute that requires servicemembers to give and to get a clear, affirmative “yes” instead of an unclear or sometimes even unstated “no” before having sex, there will be far less confusion on the part of the individual servicemembers, and if a sexual assault should occur, there will be far less prosecutorial ambiguity and opportunity for defense counsel shenanigans. It will also help protect victims and increase reporting.

The results of this change will be substantial. The military will see convictions rise, reports of sexual assaults will increase, and the current cultural issues that have fed into this epidemic of military sexual violence will change.  There is still hope that the UCMJ can be used to help end the epidemic of military rape and sexual assault, but until military jurisprudence turns away from the force-based approach to rape law, it cannot effectively be a part of the solution, and cannot effectively serve the Armed Forces.  It is time for military law to enter the 21st century and adopt a consent-based Article 120. Kicking and screaming is no longer required.