Rachel E. VanLandingham
The U.S. military has been rocked by sexual assault and harassment scandals going back to Tailhook in the early 1990s. As a result, Congress has attempted to make the military a safer place for all by reforming military criminal law in piecemeal fashion while mandating a raft of prevention programs. The most significant recent criminal procedural reform—removing commanders’ prosecutorial authority regarding sexual assault and a small collection of other crimes—followed the #MeToo movement and shocking murder of Army soldier Vanessa Guillen.
Perhaps the most radical military reform measure in this arena is one that has flown largely under the radar…
Until now.
Like many jurisdictions around the country, the military has struggled with how to fairly define and prove consent to sex, and the lack thereof. In essence: “No” means no, but what does “yes” look like?
It’s been 10 years since I urged Congress to change military law to require affirmative consent to sex. Silence and passivity—particularly in circumstances of differences in military rank—should never be permitted to be construed as authorization to invade another person’s body. It was seemingly obvious that the military, with its obedience to orders-driven hierarchy, urgently needed to reverse the assumption that a woman walks around consenting to sex—the archaic default position of American rape law. (As summarized by the American Bar Association’s Commission on Domestic and Sexual Violence, “A history of sexual violence, and of the status of women as the sexual property of men, still informs the law governing sexual assault.”) Rather, the military needed updated laws and policies to reflect the reality that no one walks around automatically consenting to anything regarding their bodies.
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