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

摘要

The requirement that service members obtain affirmative consent from their partners before sex has the potential to be "the tipping point" in the military's struggle against sexual assault.459 The DOD has invested substantial resources into solving this problem.460 An official endorsement of the concept of sexual autonomy as a right deserving the full protection of the UCMJ could very well bring about "the moment of critical mass"461 that pushes DOD's battle over the edge to success. The result would be a military culture in which bodily integrity and sexual autonomy are accepted social norms, and the thought of engaging in sexual intercourse without the verbal consent of one's partner is as taboo as drinking and driving. The proposed statute is an aggressive, proactive step toward DOD's goal of eliminating sexual assault from the military.462 Sexual assault is an issue that warrants a ground-breaking military law. The purpose of military law is "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.~("463) Arguably, there is no other internal issue facing the U.S. military that poses a greater threat to justice and good order and discipline than sexual assault. The statute proposed by this thesis has the potential to be this catalyst for change because it would unequivocally proclaim that the military's standard is absolute respect for sexual autonomy. This message would have meaning because it is backed by the authority of the UCMJ. Service members would easily understand exactly what is expected of them, and what the consequences are for failing to abide by the standard. In addition, requiring affirmative consent would guard against miscommunication in the current culture of sexual freedom and require responsible sexual interaction on the part of both parties. A statute that clearly defines what is required and what is criminal with regard to sexual behavior will demand that service members live by the high standards the military expects of them. The end result will be a culture of respect for sexual autonomy with fewer sexual assaults, producing correspondingly high unit cohesion, morale, and military readiness.