Coercive Sexual Intercourse: A Proposal to Amend Article 120, UCMJ, to Prevent the Misapplication of the "Parental Duress" Theory of the "Constructive Force" Doctrine of Rape
JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILE VA
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The United States military is the only American jurisdiction that classifies and punishes nonviolent coercive sexual intercourse with a mentally and physically competent adult as rape. Instead of creating a separate offense to specifically address such sexual misconduct, Congress has left the military courts with a traditional common law rape statute that is ill suited for application to such situations. The military appellate courts have responded to the inaction of Congress by misapplying the parental duress theory of constructive force doctrine to the above-mentioned situations. In so doing, however, the military courts have created a great deal of judicial confusion and general uncertainty as to what conduct actually constitutes the very serious crime of rape. This misapplication of the parental duress theory to situations involving fully competent adults who are not in fear of bodily harm has also opened the court house doors to prosecutorial overcharging, sentence disparity, and a possible constitutional challenge for vagueness. This thesis proposes a better solution. It proposes that Article 120, UCMJ, be amended to create the offense of coercive sexual intercourse in order to specifically address those situations in which an accused makes nonviolent use of his or her position of rank or authority to coerce a another person to submit to unwanted sexual intercourse. By adopting the proposed revision, Congress could end the present confusion as to what actually constitutes the crime of rape, insulate Article 120 from a possible constitutional challenge, and help ensure that the nomenclature and maximum punishment for the crimes enumerated in Article 120 accurately reflect their differing natures and degrees of severity.
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