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Two Steps Forward, One Step Back: Why the New UCMJ Rape Law Missed the Mark, and How an Affirmative Consent Statute Will Put it Back on Target

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Master's thesis

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The 2006 National Defense Authorization Act NDAA answered the call for a much needed revision of the Uniform Code of Military Justice UCMJ rape law. The media, military appellate courts, numerous study groups, and Congress itself voiced the need for reform of the militarys rape law, which had remained virtually unchanged since the inception of the UCMJ. The new statute, in many ways, takes a step forward in the militarys 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 paper will demonstrate that the core of the crime of sexual assault is the violation of sexual autonomy, not the violence. To provide a clear standard, prevent miscommunication, and assist in maintaining good order and discipline, 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, rape 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. This paper 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, 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.

Subject Categories:

  • Sociology and Law
  • Humanities and History
  • Military Forces and Organizations

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