Reveille for Congress: a challenge to revise rape law in the military.

• Author: Pickands, Alexander N.

INTRODUCTION

When the chips are down and our subordinates have accepted us as their leader, we don't need any superior to tell us; we see it in their eyes and in their faces, in the barracks, on the field, and on the battle line. And on that final day when we must be ruthlessly demanding, cruel and heartless, they will rise as one to do our bidding, knowing full well that it may be their last act in this life. (1) The unique relationship between a military leader and his or her subordinate is at once both powerful and fragile; strong enough to compel the subordinate to put life and liberty on the line, yet fragile enough that it cannot thrive in anything short of an environment of complete trust. All too often, however, this trust between military leaders, peers, and subordinates is undermined by coercive sexual imposition.

The United States military's rape law does not effectively prevent sexual coercion. Those victimized by fellow service members suffer a loss of autonomy and privacy as a result of sexual pressures taking a number of forms not yet adequately addressed by the Uniform Code of Military Justice (UCMJ), which, on its face, continues to criminalize only forcible rape. (2)

Commentators have long recognized that a wide spectrum of behavior exists capable of destroying resistance to, or willingness to resist to, unwanted sexual contact almost as effectively as the direct application of force. The military's definition of rape remains unchanged, however, and is almost indistinguishable from the traditional common law crime described over two hundred years ago. (3) The result is a gap left by the UCMJ large enough to include a wide variety of destructive behavior. Coercive activity that does not fit Article 120's narrow definition of rape can be addressed only by other assorted articles that impose mild punishment relative to the blameworthiness of the underlying act. (4) The dilemma created by this gap is twofold: military panels may convict someone of rape under Article 120 out of a desire to hold the defendant criminally accountable for his (5) reprehensible actions, despite the fact his conduct did not amount to force or even forcible coercion; (6) on the other hand, panel members may acquit a person who illegitimately used his authority to pressure a subordinate into having sex, simply because it does not fit within the paradigm of forcible rape. Either outcome is possible under the current state of the law, and both outcomes are disastrous.

The misuse of rank or authority to coerce sex fits neatly into the gap in the UCMJ. The elements required for rape may be absent, yet the pressures exerted can be equally destructive of human dignity and personal autonomy. It is particularly dangerous in the military, where such egregious abuses of authority not only destroy the personal interests of the victim, but also undermine discipline, morale, and unit cohesiveness--all of the legitimate objectives of military authority. Thus, in a larger sense, both the individual and the community have been victimized.

Recognizing the destructive effects of coerced sex, military courts have begun shoehorning into their rape analysis factors that bear no relevance to the elements of forcible rape. (7) Such judicial activism is not the answer, but should instead serve as a signal to Congress that military rape law needs to change.

This Note argues that Article 120 fails to accomplish its goal of protecting the autonomy and privacy interests of the victim not because its definition of rape is inherently flawed, but because it exists in a vacuum. By itself, the definition of rape, especially as conceived of by the UCMJ, cannot legitimately be extended to encompass other forms of culpable coercion. Courts attempting to do so have strained Article 120 beyond its meaning and have threatened to destroy any meaningful analysis of criminal sexual conduct in the military. The solution is clear: retain the principled distinction between forcible rape and all other forms of coercive sex, while creating separate crimes to cover those instances of nonviolent coercion that are equally capable of robbing women of their autonomy and privacy.

Perceiving the need for a more reasoned and comprehensive approach to setting limits on behavior designed to achieve sexual relations can only begin with an understanding of common law rape. Part I of this Note reviews the elements of rape and how military courts and commentators have understood them. This Part ends with a discussion of the expansion of military rape law, from beneficial reforms and exceptions to the dangerous threshold upon which it now stands.

Having framed the issue in terms of rape law's traditional roots, its evolution, and its expansion, Part II explains why sex procured by deceit as well as sex procured by nonviolent coercion--such as the coercion present through the misuse of rank--are not, and should not be, considered rape. A principled distinction exists between compelled sex and coerced or fraudulently induced sex. An analysis of the pressures exerted by the accused to achieve sexual intercourse will both restrain the overexpansion of rape and provide a sound basis for measuring the wrongdoer's culpability.

This Part continues by describing how the misuse of military authority can seriously degrade combat effectiveness. (8) Part II ends by emphasizing the importance of criminalizing coercive sex outside the limits of rape law, especially in light of the failure of the UCMJ in the recent widespread allegations of sexual misconduct at the Air Force Academy. (9) The call to revise the UCMJ's treatment of criminal sexual misconduct is not a new one, but the focus has frequently been misguided, choosing to expand rape law to cover other forms of nonviolent coercion rather than supplementing rape law with additional criminal sexual misconduct statutes. To that end, this Note proposes adding another Article to the UCMJ, as well as revising the existing Article 120.

Part III analyzes this new continuum of culpability. This analysis provides the basis for a new punitive scheme, filling the gap in Article 120 by providing different criminal sanctions for rape and the newly delineated sexual offenses.

Answering this critical need will allow commanders to punish and deter leaders who would abuse their position, as well as legitimize the chain of command and remove impediments to mission success. Our nation, embroiled in war abroad and defending domestic security at home, needs the military to focus on the enemy without rather than the enemy within.

1. THE CRIME AND THE LAW

   Two of the most cherished liberties in society, particularly coveted in American culture, are personal autonomy and privacy. It is the violation of these prized freedoms which makes rape such a despicable crime. Sexual intimacy lies at the heart of privacy, and sexual autonomy is equally central to a person's dignity. (10)

   Some commentators have described rape as a crime against property (11) as well as a crime of violence against a person. The notion that something has been stolen from the victim of rape is not uncommon among commentators, and thus some even argue for protections in the law based on similar rationales as those provided for extortion or robbery. (12) In any case, the crime of rape as charged under the UCMJ should be understood both in terms of its traditional legal evolution and its place in the unique environment of the military services.

   1. The Crime

      In the government's efforts to safeguard these essential personal liberties, Congress has proscribed certain conduct that is injurious to society and thus labeled it "unlawful." (13) Declaring certain acts criminal has one all-encompassing goal: protecting the public from further occurrences of such conduct. (14) By proscribing rape, society has traditionally regarded the forcible imposition of unwanted sex upon another to be such a social wrong. Put simply, society has decided to prohibit otherwise lawful activity (sexual intercourse) pursued in a violent and compulsive manner.

      The harm of rape can be measured in terms of each of the three traditional common law elements of the crime: (1) sexual intercourse, (2) accomplished by force, and (3) against the will of the woman. (15) The harm in unwanted sexual intercourse is a loss of dignity, personal integrity, and honor. The harm that results from force almost goes without saying; physical harm can be easily seen in the victim's injuries. The psychological effects of being brutalized, of having one's will completely overwhelmed and subdued, can endure long after the physical pain fades.

      The victim may be robbed of her privacy twofold: first, she is deprived of her most private choices--with whom, and under what circumstances, she shares herself; second, her past secrets may be laid bare, dragged into the courtroom to become part of a trial and thus made into a public record. (16) The accused faces similar exposure and examination, something for which one may not have much sympathy if his actions are later judged to be criminal. In the event he turns out to be innocent, however, one may have more empathy for the doubt sown into his character by the mere accusation of such a reprehensible act. Even the allegation of rape thus calls the honor and integrity of both accused and accuser into question. (17)

   2. The Law

      The military's definition of rape is a very simple one, almost indistinguishable from the traditional common law crime Sir William Blackstone described. (18) The military's version has two stated elements: (1) sexual intercourse, accomplished (2) by force and without consent of the victim. (19)

      Although remarkably similar to traditional common law rape, two of the elements are stated as one. The combination of the force and consent elements of the crime undoubtedly reflects the common understanding that force and nonconsent are entwined very closely in terms of evidentiary...