Front and center: Sexual violence in U.S. military law

Politics and Society

Volumn 37, Issue 1, 2009, Pages 101-130

  Hillman, Elizabeth L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

Legal culture; Military justice; Reform; Sexual violence; U.S. law

Indexed keywords

EID: 60849099847     PISSN: 00323292     EISSN: 15527514     Source Type: Journal    
DOI: 10.1177/0032329208329753     Document Type: Article

References (201)

1. Susan Brownmiller, Against Our Will: Men, Women, and Rape (New York: Simon & Schuster, 1975), 88.
2. Joshua H. Joseph, "Rethinking Yamashita: Holding Military Leaders Accountable for Wartime Rape," Women's Rights Law Reporter 28 (2007): 107-25, 112;
3. Brian Parsons, "Significant Steps or Empty Rhetoric? Current Efforts by the United States to Combat Sexual Trafficking near Military Bases," Northwestern University Journal of International Human Rights 4 (2006): 567-89, 577;
4. Eileen Meier, "Prosecuting Sexual Violence Crimes during War and Conflict: New Possibilities for Progress," International Legal Theory 10 (2004): 83-134, 84;
5. Kelly D. Askin, "Prosecuting Wartime Rape and Other Gender-related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles," Berkeley Journal of International Law 21 (2003): 288-349, 297;
6. Darren A. Nebesar, "Gender-based Violence as a Weapon of War," University of California at Davis Journal of International Law and Policy 4 (1998): 147-180, 150;
7. Kelly Dawn Askin, War Crimes against Women: Prosecution in International War Crimes Tribunals (Cambridge, MA: Martinus Nijhoff, 1997), 1.
8. Mike Baker, "Pregnant Marine's Grave Apparently Found," Washington Post, January 12, 2008 (reporting the death of Lance Corporal Maria Frances Lauterbach and the search for prime suspect Marine Corps Corporal Cesar Armando Lauren, her superior, who was the subject of a rape investigation initiated by Lauterbach).
9. Jane Harman, "Rapists in the Ranks: Sexual Assaults Are Frequent, and Frequently Ignored, in the Armed Services," Los Angeles Times, March 31, 2008.
10. See also Kimberly Hefling, "Female Soldiers Raise Alarm on Sexual Assaults," MSNBC News, July 21, 2008, http://www.msnbc.msn.com/id/ 25784465/ ("In the fiscal year that ended Oct. 1, 131 rapes and assaults were reported in Iraq and Afghanistan, said Kaye Whitley, director of the Defense Department's sexual assault prevention and response office. Comparing that to previous years isn't possible because of changes in the way data was collected, she said.").
11. Nancy K. Ota, "Flying Buttresses," DePaul Law Review 49 (2000): 693-727, 712 ("Rape has been an element of United States military campaigns overseas for which military personnel have suffered the highest penalty.");
12. Gary D. Solis, "Military Justice, Civilian Clemency: The Sentences of Marine Corps War Crimes in Vietnam," Transnational Law and Contemporary Problems 10 (2000): 59-84. On the limits of war crimes prosecutions,
13. see Beth Stephens, "Humanitarian Law and Gender Violence: An End to Centuries of Neglect?" Hofstra Law and Policy Symposium 3 (1999): 87-109, 89.
14. http://www.womensmemorial.org/PDFs/StatsonWIM.pdf. Part of the incentive for stopping military-on-military rape is a liability issue; when servicemembers are sexually assaulted by other servicemembers, the government could be exposed to civil liability, even though current interpretations of the Federal Tort Claims Act's limited applicability to the military make such a claim difficult to win. Gonzales v. United States Air Force, 88 Fed. Appx. 371 (10th Cir. 2004) (rejecting, under the Feres doctrine, the claim of a female enlistee who was raped by an airman with a felony conviction that the military had not discovered prior to his enlistment);
15. Elizabeth L. Reidy, "Gonzalez v. United States Air Force: Should Courts Consider Rape to Be Incident to Military Service?" American University Journal of Gender, Social Policy and Law 13 (2005): 635-68.
16. The Veterans Millennial Health Care and Benefits Act, Public Law 106-77 (1999) ("Counseling and Treatment for Veterans Who Have Experienced Sexual Trauma");
17. Public Law 103-452 (1994);
18. Public Law 102-585 (1992);
19. Report on Military Sexual Trauma Among the Reserve Components of the Armed Services (Washington, DC: Government Printing Office, October 2003), http://veterans.house.gov/democratic/press/109th/9-29-05.mst.htm. The 2003 study -belatedly released to the House Veterans' Affairs Committee in September 2005 - found that 27.2 percent of male reservists and 60.0 percent of female reservists had experienced military sexual trauma; half of the reported incidents took place at "a military work site" during duty hours; most involved another servicemember as the perpetrator.
20. Garry Trudeau, Doonesbury, June 22, 2007, slate.doonesbury.com; http://www.militarysexualtrauma.org (a privately maintained site with data and links concerning military sexual violence).
21. http://www.sapr.mil (reflecting the activities of the Department of Defense Sexual Assault Prevention and Response Office [SAPRO], which runs education and awareness campaigns as well as leading data collection efforts).
22. Note that the U.S. military's inability to stop sexual violence within its own ranks makes clear how elusive solutions are to the larger problem of military sexual violence. Servicemembers, male and female, are not the only victims of such violence; civilians, commercial sex workers, contractors, and members of foreign militaries are also targets. But because military-on-military sexual violence involves a failure to protect even those persons on whose welfare the military's own success depends, understanding its widespread persistence is critical to understanding the interaction of law, policy, and culture in military sexual violence.
23. http://www.sapr.mil/homepage.aspx?Topic=Sexual%20Assault.
24. It does not include sexual harassment or lesser sex-related military crimes, such as adultery. Sexual harassment is defined in Department of Defense Directive 1350.2 (Washington, DC: Department of Defense Military Equal Opportunity Office, last modified May 7, 1997), http://www.dtic.mil/whs/ directives/corres/pdf/135002p.pdf.
25. Article 134 of the Uniform Code of Military Justice (UCMJ), specifies many sex-related offenses. 10 U.S.C. § 934 (2000).
26. John B. Corr, "Rape, Sex, and the U.S. Military: Questioning the Conclusions and Methodology of Madeline Morris' By Force of Arms," Transnational Law and Contemporary Problems 10 (2000): 191-218;
27. Charles H. Rose III, "Deconstructing Truth: A Review of Carol Burke's Book Camp All-American, Hanoi Jane, and the High-and-Tight: Gender, Folklore, and Changing Military Culture," William and Mary Journal of Women and the Law 12 (2006): 481-90;
28. Stephanie Gutmann, The Kinder, Gentler Military: Can America's Gender-Neutral Fighting Force Still Win Wars? (New York: Scribner, 2000).
29. Alexander N. Pickands, "Reveille for Congress: A Challenge to Revise Rape Law in the Military," William and Mary Law Review 45 (2004): 2425-60, 2453;
30. Diane H. Mazur, "Military Values in Law," Duke Journal of Gender Law and Policy 14 (2007): 977-1008, 1007;
31. Roland Littlewood, "Military Rape," Anthropology Today 13 (1997): 7-16;
32. A. E. Adams, "Dyke to Dyke: Ritual Reproduction at a U.S. Men's Military College," Anthropology Today 9 (1993): 3-6;
33. Richard Holmes, Firing Line (London: Random House, 1994); Hugh McManners, The Scars of War (New York: HarperCollins, 1994).
34. Colleen Dalton, "The Sexual Assault Crisis in the United States Air Force Academy," Cardozo Women's Law Journal 11 (2004): 177-202, 177;
35. Emily Nyen Chang, "Engagement Abroad: Enlisted Men, U.S. Military Policy and the Sex Industry," Notre Dame Journal of Law, Ethics and Public Policy 15 (2001): 621-53, 630;
36. Michael I. Spak and Alice M. McCart, "Effect of Military Culture on Responding to Sexual Harassment: The Warrior Mystique," Nebraska Law Review 83 (2004): 79-113.
37. Madeline Morris, "By Force of Arms: Rape, War, and Military Culture," Duke Law Journal 45 (1996): 651-781; http://www.law.duke. edu/fac/morris/.
38. Morris, "By Force of Arms," 659-64.
39. Ibid., 664-73.
40. Ibid., 674-761.
41. Arthur Austin, "The Law Academy and the Public Intellectual," Roger Williams University Law Review 8 (2003): 245-92, 256-57.
42. Corr, "Rape, Sex, and the U.S. Military."
43. J. Robert Lilly, Taken by Force: Rape and American GIs in Europe during WWII (New York: Palgrave MacMillan, 2007);
44. Ota, "Flying Buttresses"; Alice Kaplan, The Interpreter (New York: Simon and Schuster, 2005);
45. Naomi Cahn, "Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence," Stanford Journal of Civil Rights and Civil Liberties 1 (2005): 217-70; Askin, "Prosecuting Wartime Rape."
46. Initially published by Simon and Schuster, Against Our Will has been republished many times since, in sixteen foreign languages. It remains in print today in a 1993 Ballantine edition, http://www.susanbrownmiller.com/ susanbrownmiller/html/against-our-will.html.
47. Brownmiller, Against Our Will, chap. 3.
48. Ibid., 30, fn.
49. Ibid., 76-77.
50. Guenter Lewy, America in Vietnam (New York: Oxford University, 1978), 456;
51. William Thomas Allison, Military Justice in Vietnam: The Rule of Law in an American War (Lawrence: University of Kansas, 2007).
52. Chang, "Engagement Abroad," 624. In 2008, another incident of a U.S. Marine raping a girl on Okinawa surfaced. "Marine Arrested over Japan Rape," New York Times, February 11, 2008.
53. Four soldiers were tried and convicted at court-martial; their sentences ranged from 5 to 110 years in prison. A fifth, Steven Green, the alleged ringleader, was discharged from the army for an "anti-social personality disorder" before he could be charged, and is facing the death penalty in a trial slated to begin in April 2009, in the U.S. District Court, Western District of Kentucky. Bill Bartleman, "Ex-soldier Trial Needs Month," Paducah Sun (KY), August 30, 2007;
54. "Iraq Rape-slay Case Hits Snags," CBS News, January 11, 2008, http://www.cbsnews.com/stories/2007/12/19/iraq/main3631048.shtml (detailing the legal challenges that will delay Green's court-martial until April 2009);
55. Ryan Lenz, "Soldier Gets 110 Years for Rape, Murder of Iraqi Girl," Alameda Times-Star (CA), August 5, 2007.
56. See, for example, Gary Solis, "Iraq Cases Raise Question: Is Military Justice System Broken?" Los Angeles Times, September 11, 2007;
57. Associated Press, "Soldier Tells of Combat Stress in Unit," New York Times, August 8, 2006 (describing the stress experienced by combat troops accused in this case);
58. Kirk Semple and John O'Neil, "Iraq Incident Was Fueled by Whiskey, G. I. Says," New York Times, August 7, 2006 (same).
59. Saundra Pollock Sturdevant and Brenda Stoltzfus, eds., Let the Good Times Roll: Prostitution and the U.S. Military in Asia (New York: New Press, 1993);
60. Katherine H. S. Moon, Sex among Allies: Military Prostitution in U.S.-Korea Relations (New York: Columbia University, 1997).
61. Tara McKelvey, Monstering: Inside America's Policy of Secret Interrogations and Torture in the Terror War (New York: Basic Books, 2007);
62. Tara McKelvey, ed., One of the Guys: Women as Aggressors and Torturers (Emeryville, CA: Seal, 2006);
63. Physicians for Human Rights, Broken Laws, Broken Lives: Medical Evidence of Torture by the U.S. (Cambridge, MA: Physicians for Human Rights, 2008), http://brokenlives.info/?page-id=69.
64. Marlene Higgins, "The Air Force Academy Scandal: Will the 'Agenda for Change' Counteract the Academy's Legal and Social Deterrents to Reporting Sexual Harassment and Assault?" Women's Rights Law Reporter 26 (2005): 121-37;
65. Deborah L. Rhode, "Change the Culture," National Law Journal, April 21, 2003, A13.
66. Cynthia Enloe, The Morning After: Sexual Politics at the End of the Cold War (Berkeley: University of California, 1992);
67. Morris, "By Force of Law."
68. After conducting fifteen hundred interviews, naval investigators reported that perhaps 175 junior officers had been involved in assaulting more than eighty women. William H. McMichael, The Mother of All Hooks: The Story of the U.S. Navy's Tailhook Scandal (New Brunswick, NJ: Transaction, 1997);
69. Jean Zimmerman, Tailspin (New York: Doubleday, 1994);
70. Lt. Cdr. J. Richard Chema, "Arresting 'Tailhook': The Prosecution of Sexual Harassment in the Military," Military Law Review 140 (1993): 1-64;
71. Department of Defense Inspector General, Tailhook '91 (Washington, DC: Government Printing Office, 1993).
72. Dana Michael Hollywood, "Creating a True Army of One: Four Proposals to Combat Sexual Harassment in Today's Army," Harvard Journal of Law and Gender 30 (2007): 151-202.
73. But see also Brian C. Hayes, "Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge," Regent University Law Review 19 (2006): 173-202, 183-89.
74. Hollywood, "Creating a True Army of One," 159-60.
75. United States v. Simpson, 58 M.J. 368 (Court of Appeals for the Armed Forces, 2003);
76. United States v. Simpson, 55 M.J. 674 (Army Court of Criminal Appeals, 2001).
77. Colonel Fred L. Borch, "Military Law and the Treatment of Women Soldiers: Sexual Harassment and Fraternization in the U.S. Army," in A Soldier and a Woman: Sexual Integration in the Military, ed. Gerard J. DeGroot and Corinna Peniston-Bird (New York: Pearson Education, 2000), 345-49. Colonel Borch led the army prosecution team at Aberdeen.
78. Linda Strite Murnane, "Legal Impediments to Service: Women in the Military and the Rule of Law," Duke Journal of Gender Law and Policy 14 (2007): 1061-96, 1085.
79. Hollywood, "Creating a True Army of One," 159-67.
80. J. Robert Lilly, Taken by Force; Moon, Sex among Allies; Leisa D. Meyer, Creating GI Jane: Sexuality and Power in the Women's Army Corps during World War II (New York: Columbia University Press, 1996).
81. For the charge of a failure in leadership, see, for example, Mazur, "Military Values," 1000.
82. Dalton, "The Sexual Assault Crisis," 177.
83. Report of the Panel to Review Sexual Misconduct Allegations at the U.S. Air Force Academy (2003), available at http://www.usafa.af.mil/.
84. Ibid., 2; Higgins, "The Air Force Academy Scandal," 122-23.
85. Dalton, "The Sexual Assault Crisis," 187. The "Bring Me Men" sign was a source of contention for many years. Judith Hicks Stiehm, Bring Me Men - and Women: Mandated Change at the U.S. Air Force Academy (Berkeley: University of California, 198.1).
86. On sexual assault rates and legal responses to them on college campuses, see U.S. Department of Justice, National Institute of Justice, Sexual Assault on Campus: What Colleges and Universities Are Doing about It (Washington, DC: Government Printing Office, 2005), http://www.ncjrs.gov/pdffiles1/nij/ 205521.pdf.
87. The U.S. Naval Academy and Coast Guard Academy have both suffered from recent allegations of toleration and mishandling of sexual harassment and assault claims. "Report: [Coast Guard] Cadet Convicted of Sexual Assault not Racial Bias Victim," Newsday, September 11, 2007;
88. Raymond McCaffrey, "At Naval Academy, Many Hurdles Await Incoming Superintendent," Washington Post, June 14, 2007.
89. Dalton, "The Sexual Assault Crisis," 180 (reporting surveys that place the rate of rape or attempted rape reported among female veterans at 21 and 30 percent as compared to 18 percent among civilian women).
90. Margaret E. Noonan and Christopher J. Mumola, Veterans in State and Federal Prison (Washington, DC: U.S. Department of Justice, 2007), 3, http://www.ojp.usdoj.gov/bjs/pub/pdf/vsfp04.pdf;
91. Department of Justice, "Veterans Older, Better Education than Other State and Federal Prisoners," press release, April 29, 2007, http://www.ojp.usdoj.gov/bjs/pub/press/vsfp04pr.htm.
92. Noonan and Mumola, Veterans in State and Federal Prison, 3-4. Note that the self-selection of servicemembers (the military population is not randomly selected) makes comparing criminal statistics regarding male military versus civilian populations difficult.
93. Deborah J. Bostock and James G. Daley, "Lifetime and Current Sexual Assault and Harassment Victimization Rates of Active-duty United States Air Force Women," Violence Against Women 13 (2007): 927-44, 940 (reporting that "the lifetime prevalence of rape among Air Force women [28%] was more than twice as high as the prevalence reported by a national sample [the NWS] of adult women [13%] in 1990)";
94. Alina Surís et al., "Mental Health, Quality of Life, and Health Functioning in Women Veterans: Differential Outcomes Associated with Military and Civilian Sexual Assault," Journal of Interpersonal Violence 22 (2007): 179-197, 191 (reporting that a study of 270 women veterans reveals that those with a history of military sexual assault have "poorer health and quality-of-life outcomes" than those with civilian sexual assault histories - and than those without such histories);
95. Alina Surís et al., "Sexual Assault in Women Veterans," Psychosomatic Medicine 66 (2004): 749-56;
96. A. Sadler et al., "Health-related Consequences of Physical and Sexual Violence: Women in the Military," Obstetrics and Gynecology 96 (2000): 473-80;
97. K. Skinner et al, "The Prevalence of Military Sexual Assault among Female Veterans' Administration Outpatients," Journal of Interpersonal Violence 15 (2000): 291-320;
98. Lee Martin et al, "Prevalence and Timing of Sexual Assaults in a Sample of Male and Female U.S. Army Soldiers," Military Medicine 163 (1998): 213-16, 214;
99. Lex L. Merrill et al., "Prevalence of Premilitary Adult Sexual Victimization and Aggression in a Navy Recruit Sample," Military Medicine 163 (1998): 209-212, 211;
100. Emma Lindsay, "Lysistrata, Women, and War: International Law's Treatment of Women in Conflict and Post-conflict Situations," Texas Wesleyan Law Review 12 (2005): 345-75, 356;
101. Major Paul M. Schimpf, "Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to Communications Between a Victim, and Victim-advocate in the Military," Military Law Review 185 (2005): 149-208, 154.
102. Melissa A. Polusny and Maureen Murdoch, "Sexual Assault among Male Veterans," Psychiatric Times 22, no. 4 (2005): 34-38;
103. Dawne Vogt et al., "Attitudes toward Women and Tolerance for Sexual Harassment among Reservists," Violence Against Women 13 (2007): 879-900.
104. Department of Veterans Affairs, MST National Report: Fiscal Year 2002 (Washington, DC: Government Printing Office, 2003);
105. Department of Veterans Affairs, MST National Report: Fiscal Year 2003 (Washington, DC: Government Printing Office, 2004); Surís et al., "Sexual Assault in Military Veterans."
106. Terri Tanielian and Lisa H. Jaycox, eds., Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery (Washington, DC: RAND, 2008), 98-100.
107. Acting Secretary of the Army, Task Force Report on Sexual Assault Policies (Washington, DC: U.S. Army, 2004), 29-37, http://www4.army.mil/ ocpa/reports/index.html.
108. Ibid.
109. DoD Directive 6495.01, "Sexual Assault Prevention and Response Program," October 6, 2005; DoD Instruction 6495.02, "Sexual Assault Prevention and Response Program Procedures," June 23, 2006. On confidentiality in particular,
110. see Deputy Secretary of Defense Paul Wolfowitz, "Memorandum: Confidentiality Policy for Victims of Sexual Assault," JTF-SAPR-009, March 16, 2005, http://www.sapr.mil/HomePage.aspx?Topic=Policy.
111. Department of Defense, Annual Report on Military Services Sexual Assault for CY 2006 (Washington, DC: Department of Defense, 2007), http://www.sapr.mil/contents/references/2006%20Annual%20Report.pdf. Note that the revised reporting procedures implemented in 2006 privilege victim confidentiality over aggressive prosecution; a new option of "restricted" reporting permits a victim to access medical care and counseling without necessarily triggering investigation and prosecution. So while the number of reports has climbed even as the military's support for victims has increased since 2004, this cannot be interpreted as a clear indication that the incident rate itself has increased.
112. See p. 5 (noting that the CY 2006 numbers "should be used as the baseline year for analyzing any future trends"). See also Department of Defense, FY07 Report on Sexual Assault in the Military (Washington, DC: Department of Defense, 2008), http://www.sapr.mil/contents/references/ 2007%20Annual%20Report.pdf. Note that the numbers in this latest report are not directly comparable to earlier reports because of the switch from calendar year to fiscal year accounting and because the legal definitions of sexual assault changed so significantly on October 1, 2007, with the implementation of a revised Article 120 in the UCMJ.
113. Combined 2004-2006 statistics, Department of Defense, Reports on Sexual Assault in the Military (2004 to 2007), available from http://www.sapr.mil. The figure in the text relies on these official reports for data.
114. David S. C. Chu, Undersecretary for Defense, Personnel and Readiness, Reported Allegations of Sexual Assault, May 6, 2005, 4, http://www.sapr.mil.
115. Ibid.
116. Acting Secretary of the Army, Task Force Report, 36.
117. Ibid., 31, 22.
118. Ibid., 34.
119. Lieutenant Commander Ann M. Vallandingham, JAGC, USN, "Department of Defense's Sexual Assault Policy: Recommendations for a More Comprehensive and Uniform. Policy," Naval Law Review 54 (2007): 205-34.
120. Kingsley R. Browne, "Military Sex Scandals from Tailhook to the Present: The Cure Can Be Worse than the Disease," Duke Journal of Gender Law and Policy 14 (2007): 749-89;
121. Hayes, "Strengthening Article 32."
122. Department of Defense, Reports on Sexual Assault in the Military.
123. Department of Defense, Annual Report on Military Services Sexual Assault for CY 2006 (describing this category as "unsubstantiated/ unfounded, insufficient evidence, victim recanted, death of offender, etc").
124. Ibid., 39.
125. Bradley J. Huestis, "You Say You Want a Revolution: New Developments in Pretrial Procedures," Army Lawyer (May 2003): 17-42,19, fn 33;
126. Lieutenant Colonel R. Peter Masterton, "The Defense Function: The Role of the U.S. Army Trial Defense Service," Army Lawyer (March 2001): 1-29, 27, fn 340.
127. See the "Don't Ask/Don't Tell" statute as to why that orientation matters; 10 U.S.C. § 654.
128. See Merida documents (on file with the author); for a grotesquely similar case, see the Mathis case, described in Elizabeth Lutes Hillman, Defending America: Military Culture and the Cold War Court-martial (Princeton, NJ: Princeton University Press, 2005), 41-43.
129. Harman, "Rapists in the Ranks" (arguing that "the absence of rigorous prosecution perpetuates a culture tolerant of sexual assault" in the military and suggesting that civilian rapes are more likely to be prosecuted).
130. Consider, for example, the 2008 murder of Lance Corporal Lauterbach (Baker, "Pregnant Marine's Grave Apparently Found"), a tragic consequence of overlooking the potential risks to a victim of sexual assault who presses charges.
131. Rachel Kimerling et al., "The Veterans Health Administration and Military Sexual Trauma," American Journal of Public Health 97, no. 12 (2007): 2160-66, 2160 (describing military policies as "a uniquely comprehensive health care response to sexual trauma").
132. http://www.cnrc.navy.mil/Dep-guide/Dep/policy.htm (describing the Navy's "zero tolerance" policy and definition of sexual harassment);
133. http://www.defenselinkmil/news/fact-sheets/sxhas95.html (reporting the results of a 1995 sexual harassment survey);
134. Chema, "Arresting 'Tailhook'"; Martha Chamallas, "The New Gender Panic: Reflections on Sex Scandals and the Military," Minnesota Law Review 83 (1998): 305-75;
135. Schimpf, "Talk the Talk."
136. Department of Defense Annual Report on Sexual Harassment and Violence at the U.S. Military Service Academies: Academic Program Year 2006-2007, December 7, 2007, http://www.sapr.mil/contents/news/CurrentNewsletter/ Academy%20Report%2012-7-07.pdf.
137. General Accounting Office, "Military Personnel, Reporting Additional Servicemember Demographics Could Enhance Congressional Oversight," GAO Highlights (September 2005): 38-45. http://www.gao.gov/highlights/ d05952high.pdf.
138. Sixty-one of those one hundred died in combat. See the official Department of Defense figures at http://www.defenselink.mil/news/casualty.pdf.
139. Margaret C. Harrell et al., Assessing the Assignment Policy for Army Women (Washington, D.C.: RAND, 2007).
140. Elisabeth Yano et al., "Toward a VA Women's Health Research Agenda: Setting Evidence-based Priorities to Improve the Health and Health Care of Women Veterans," Journal of General Internal Medicine 21 (March 2006): S93-S101.
141. Karen Houppert, Home Fires Burning: Married to the Military - For Better or Worse (New York: Random House, 2005), 115-40, 118;
142. Tanielian and Jaycox, Invisible Wounds of War, 144-45 (describing the correlation between the anger and aggression that many returning veterans experience and the incidence of intimate-partner violence).
143. Chamallas, "The New Gender Panic," 344-50.
144. For astute commentary on the evolution of legal doctrine related to rape and force, see Anne M. Coughlin, "Sex and Guilt," Virginia Law Review 84 (1998): 1-46.
145. Article 120, "Rape and Carnal Knowledge," UCMJ, 10 U.S.C. § 920 (defining rape as "an act of sexual intercourse, by force and without consent." For similar language in prior versions of the Manual for Courts-martial,
146. see the 1969 and 1984 versions and Major Timothy W. Murphy, USAF, "A Matter of Force: The Redefinition of Rape," Air Force Law Review 39 (1996): 19-35.
147. Carol DiBattiste, "Federal and Military Rape Shield Rules: Are They Serving Their Purpose?" Naval Law Review 37 (1988): 123-56;
148. Francis A. Gilligan and Michael D. Wims, "Civilian Justice v. Military Justice: In Many Instances, Service Members Accused of Crime are Granted More Rights than Civilians," Criminal Justice 2, no. 5 (1990): 2-5, 34-39 (noting especially the military rape shield law).
149. Murphy, "A Matter of Force," 35.
150. Pickands, "Reveille for Congress," 2433; Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 1998), 113.
151. The new rape article reads as follows: Any person subject to this Chapter who causes another person of any age to engage in a sexual act -1. using force against that other person; 2. causing grievous bodily harm to any person; 3. threatening or placing that other person in fear that any person will be subject to death, grievous bodily harm, or kidnapping; 4. rendering another person unconscious; 5. administering to another person by force or threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct is guilty of rape, and shall be punished as a court-martial may direct. Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3256 (2006).
152. Defined as follows: Any person subject to this chapter who -1. causes another person of any age to engage in a sexual act by -A. threatening or placing that person in fear (other than by threatening or placing that other person in fear that the person will be subjected to death, grievous bodily harm, or kidnapping); or B. causing bodily harm; or 2. engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of A. appraising the nature of the sexual act; B. declining participation in the sexual act; C. communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may direct. Ibid.
153. Major Jennifer S. Knies, "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," Army Lawyer (August 2007): 1-45;
154. Major Howard H. Hoege III, '"Overshift': The Unconstitutional Double Burden-shift on Affirmative Defenses in the New Article 120," Army Lawyer (May 2007): 2-17.
155. Helen Benedict, The Lonely Soldier: The Private War of Women Serving in Iraq (Boston: Beacon, 2009) (arguing that the scripts of military training films depict women as victims and sexual objects - and in fact worsen, rather than ameliorate, the rape-conducive culture of military life).
156. Joanna Bourke, An Intimate History of Killing: Face-to-face Killing in Twentieth Century Warfare (New York: Basic Books, 2000);
157. Miriam Cooke and Angela Woollacott, Gendering War Talk (Princeton, NJ: Princeton. University Press, 1993).
158. Virtually all of the judge advocates and military legal scholars who have written about military rape law fall into this category; see, for example, Murphy, "A Matter of Force"; Knies, "Two Steps Forward"; Pickands, "Reveille for Congress."
159. Schimpf, "Talk the Talk," 154; Leora N. Rosen, "Rape Rates and Military Personnel in the United States," Violence Against Women 13 (2007): 945-60 (studying the rates of rape across states by percentage of military personnel).
160. See generally Joanna Bourke, Rape: A History from 1860s to the Present (London: Virago, 2007).
161. Ann Scott Tyson, "Military Waivers for Ex-convicts Increase," Washington Post, April 22, 2008, A01;
162. Fred Kaplan, "Dumb and Dumber: The Army Lowers Recruiting Standards . . . Again," Slate, January 24, 2008, http://www.slate.com/id/ 2182752/.
163. Willenbring v. Neurauter, 48 M.J. 152 (Court of Appeals for the Armed Forces 1998) (upholding court-martial jurisdiction over a reservist no longer serving on active duty for rapes committed while he was on active duty);
164. ABC, Inc. v. Powell, 47 M.J. 363 (1997) (holding that Article 32 hearings must be open; involving sexual harassment charges against the army's ranking enlisted member);
165. United States v. Tempia, 37 C.M.R. 249 (1967) (holding Miranda v. Arizona applicable to military interrogations; involving "indecent liberties with females under the age of sixteen");
166. United States v. Hooper, 26 C.M.R. 417 (1958) (establishing the legitimacy of court-martial jurisdiction over retirees in the case of a long-retired admiral accused of sodomy for his sexual relationship with young sailors).
167. Burns v. Wilson, 346 U.S. 137 (1953).
168. Madsen v. Kinsella, 343 U.S. 341 (1952) (involving a domestic violence prosecution); Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960) (involving domestic murder);
169. McElroy v. U.S. ex rel. Guagliardo, 36.1 U.S. 281 (1960) (involving two cases, with sodomy the charged crime in one, larceny the other);
170. Grisham v. Hagan, 361 U.S. 278 (1960) (involving domestic murder);
171. Major Susan S. Gibson, "Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem," Military Law Review 148 (1995): 114-85.
172. Note that the predominance of domestic violence in. cases involving the military prosecution of civilians is due in part to high levels of intrafamily violence in communities of servicemembers - violence committed by both servicemen and their wives. The lone exception to this historical trend is Toth v. Quarles, which concerned an airman-turned-steelworker who had allegedly murdered a Korean man while on active duty in 1952. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
173. Reid v. Covert, 354 U.S. 1 (1957).
174. Frederick Bernays Wiener, "American Military Law in the Light of the First Mutiny Act's Tricentennial," Military Law Review 126 (1989): 1-88, 5-54;
175. Reid v. Covert, 354 U.S. 1, 5 (1957) (plurality opinion);
176. Reid v. Covert, 351 U.S. 487, 488, 492 (1956), rev'd, 354 U.S. 1, 5 (1957) (plurality opinion).
177. Brian Ross, Maddy Sauer, and Justin Rood, "Victim: Gang-rape Cover-up by U.S., Halliburton/KBR," ABC News, December 10, 2007, http://abcnews.go.com/Blotter/story?id= 3977702;
178. Human Rights First, Private Security Contractors: Ending the Culture of Impunity (New York: Human Rights First, 2008), .http://www. humanrightsfirst.info/pdf/08115-usls-pscfinal.pdf.
179. O'Callahan v. Parker, 395 U.S. 258 (1969).
180. Relford v. Commandant, United States Disciplinary Barracks, 401 U.S. 355 (1971).
181. Solorio v. United States, 107 S. Ct. 2924 (1987).
182. Carol Burke, Camp All-American, Hanoi Jane, and the High-and-Tight: Gender, Folklore, and Changing Military Culture (Boston: Beacon, 2004).
183. I use the qualifier publicized here because it is not clear that in terms of absolute numbers, the total number of military men who are assaulted does not approach, reach, or even exceed the number of military women who are assaulted. Even though the rate of male-male assault is much lower, the high percentage of men in the military population makes even a low rate of male victimization numerically significant. See, for example, Aaron Belkin, Purely by Force: Purity, Pollution, and Male-Male Sexual Assault in the U.S. Military (2007 unpublished manuscript, on file with the author).
184. Askin, "Prosecuting Wartime Rape," 297.
185. Elizabeth L. Hillman, "Gentlemen under Fire: The U.S. Military and 'Conduct Unbecoming,'" Law and Inequality 26 (2008): 1-57.
186. Lisa Frohmann, "Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking," Law and Society Review 31 (1997): 531-55.
187. In Henderson, an African American soldier was convicted for raping a mentally disabled white French woman. Hillman, Defending America, 100-1.
188. United States v. Simpson, 55 M.J. 674, 707 (Army Court of Criminal Appeals 2001), aff'd, 58 M.J. 368 (Court of Appeals for the Armed Forces 2003).
189. Five men now await execution by the military: three Army soldiers (Hasan Akbar, Ronald A. Gray, Dwight J. Loving), one marine (Kenneth G. Parker), and one airman (Andrew Witt). Four of the five are African American; only Witt is white. See http://caaflog.blogspot.com (Oct. 2, 2008);
190. Death Penalty Information Center, http://www.deathpenaltyinfo.org; Colonel Dwight H. Sullivan, "Killing Time: Two Decades of Military Capital Litigation," Military Law Review 189 (2006): 1-50;
191. Steven Lee Myers, "Execution by Military is Approved by President," New York Times, July 19, 2008.
192. See also In re Yamashita, 327 U.S. 1 (1946) (involving a capital military commission in which the charge of rape is implied but not specified in allegations of atrocity leveled against the commander of Japanese forces in the Philippines).
193. Briefs of appellants, Burns v. Wilson.
194. Richard H. Fallon and Daniel J. Meltzer, "Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror," Harvard Law Review 120 (2007): 2029-2112, 2054;
195. Burns v. Wilson, 346 U.S. 851-52 (Frankfurter, J., dissenting from the denial of rehearing).
196. See oral argument transcript and appellant briefs, Burns v. Wilson.
197. Captain Dwight H. Sullivan, "The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases," Military Law Review 144 (1994): 1-76.
198. Ibid. The overlap between the death penalty and sexual violence still exists today. Two of the fifteen cases that appear in a recent study of the recent application of the military death penalty involve sexual violence: In 1990, a death sentence was imposed for "a brutal killing of a female drinking companion who was nearly decapitated with a sword"; in 2005, for the "premeditated murder of an airman and the airman's wife in revenge for phone call harassment and a charge of sexual misconduct by the accused." David Baldus et al., "Equal Justice in the Administration of the Death Penalty: The Experience of the United States Armed Forces, 1984-2005" (working paper, 2006), 3. http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 914195.
199. Myers, "Execution by Military."
200. Gray v. Gray, No. 08-3289-RDR (D. Kan. Nov. 26, 2008) (order).
201. . Jonathan Turley, "Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy," George Washington Law Review 70 (2002): 649-768, 765-66 (arguing that court-martial jurisdiction ought to be limited to military discipline rather than extended to include conventional crimes).