1 article(s) will be saved. To save, please use your browser's save option. Be sure to save as a plain text file (.txt) or an HTML file.

Record: 15
Title: A matter of force: The redefinition of rape.
Subject(s): RAPE -- Law & legislation -- United States
Source: Air Force Law Review, 1996, Vol. 39, p19, 18p
Author(s): Murphy, Timothy W.
Abstract: Presents an overview of the development of legislation of rape and the two primary approaches taken in American jurisprudence. Changes in the legal definition of rape; Discussions of judicial interpretations of the military's rape offense; Indications that military courts have been liberalizing the definition of force in rape cases.
AN: 9606205351
ISSN: 0094-8381
Full Text Word Count: 8069
Database: Academic Search Premier



In the past 25 years, rape law has been the target of much criticism, resulting in continuous definitional changes in many jurisdictions. Much of this change is attributable to increasing societal awareness and condemnation of coercive sexual practices, especially between acquaintances. This change also is the result of increased political advocacy by rape victims and an activist feminist philosophical view of gender relations which redefines human sexuality in terms of political power. The primary legal response to these societal pressures has been either to alter the legal definition of rape by changing its elements or to redefine the meaning of terms formulated at common law. The revisionists' efforts have focused primarily on the appropriate definition of the terms "lack of consent" and "force." This article provides an overview of the development of rape law, including the two primary approaches taken in American jurisprudence. This article then discusses judicial interpretations of the military's rape offense, Article 120 of the Uniform Code of Military Justice (UCMJ).(n1) This article concludes that military courts have been at the forefront in liberalizing the definition of force. Special emphasis is placed on recent decisions, particularly on the "totality" standard of review for force and consent issues.


At common law, rape was defined as "the carnal knowledge of a woman by force and against her will."(n2) Although the elements of "force" and "lack of consent" remained distinct, they both focused on the victim's physical resistance to the act of intercourse prior to its accomplishment. The degree of force required for rape depended on the circumstances, but had to be to a degree sufficient to overcome the victim's resistance. Conversely, the level of resistance required by a victim to show lack of consent depended on the degree of force the defendant used and usually required more than verbal protests. When a victim was incapable of consent due to incapacity or lack of consciousness, force was defined solely in terms of the act of intercourse itself.(n3)

The primary evidentiary difficulty for any rape prosecution involved, and continues to involve, acts of intercourse between acquaintances or situations where actual physical violence or a threat of violence does not occur. At common law, many jurisdictions created additional requirements in these situations designed to distinguish criminal from consensual activity. These "extra-elemental" factors included: "utmost resistance" on the part of the victim, independent corroboration of the victim's testimony, cautionary instructions to the factfinder highlighting the difficulty in defending an allegation of rape, psychological testing for the victim, or a heightened standard of review on appeal which focused upon the "improbability" of the victim's testimony and the prosecution's evidence.(n4) Inquiry into a victim's past sexual behavior was also admissible in many jurisdictions as probative of the element of consent.

Early reforms did little to alter rape law. Nonetheless, many of the "extra-elemental" factors, such as cautionary instructions,(n5) corroboration requirements,(n6) and a heightened scrutiny on appeal,(n7) were eliminated. Moreover, rape shield statutes eliminated generalized inquiry into a victim's sexual behavior.(n8) The Model Penal Code, styled as the first major rape reform statute, created varying degrees of rape which continued to consider resistance as relevant to the issue of force and consent, but eliminated it as a legal prerequisite for conviction.(n9)

A number of statutory approaches redefine or eliminate some of the elements of rape. Two general approaches have developed. The first, often referred to as the Michigan Model, eliminates the element of consent under the theory that the existence of that element improperly focuses attention on the victim's rather than the accused's conduct,(n10) In this statutory scheme, the "force or coercion" is broadly defined to include certain kinds of specific coercive actions committed by the perpetrator, such as use of actual force, actual or implied threats of physical force or of future harm or retaliation, or the "supervisory or disciplinary power" of the defendant over the victim. Severe personal injury by a victim would not be required so long as the act of intercourse was accomplished by "force or coercion." Although inquiry into a victim's consent is eliminated as an element, it remains an affirmative defense.(n11)

An alternative statutory approach, first adopted in Wisconsin, redefines consent without eliminating it as an element. Rather than defining it in terms of resistance to a sexual assault, consent is defined as "words or overt actions by a [competent] person... indicating a freely given agreement to have sexual intercourse or sexual contact."(n12) Hence, simple passivity or acquiescence by a victim to the perpetrator's actions does not constitute consent. The Wisconsin statutory scheme, while retaining the element of force, does not specifically define the term, leaving its development to judicial interpretation.(n13) Critics contend that any statutory scheme that requires the Government to prove a lack of consent, even as broadly defined in the Wisconsin statute, unfairly and improperly focuses attention on a victim's conduct. Additionally, these critics contend that the statute's failure to specifically define the element of force could lead to the re-emergence of the resistance standard through judicial interpretation of that term using common law principles.(n14)


Two recent cases demonstrate the extremes to which force and consent have been interpreted. Commonwealth v. Berkowitz, (n15) a Pennsylvania case, reestablishes the more traditional view of requiting the prosecution to demonstrate actual force in addition to some show of resistance by the victim. State in Interest of M. T.S.,(n16) on the other hand, adopts the feminist approach which, for all practical purposes, eliminates the force element in its entirety while considering consent only in the context of an affirmative defense.

The M.T.S. case involved an act of sexual intercourse between a 17-year-old male accused and a 15-year-old female victim. The accused was a house guest in the home of the victim's mother. The victim testified that one night she awoke to find the accused engaged in an act of sexual intercourse with her. She stated that she immediately slapped him and told him to "get off." The victim testified that earlier in the evening, the accused had made several comments to her regarding a "surprise visit" which she dismissed as a joke. She also said that on one occasion during the night, she talked with the accused in the upstairs hallway on a trip to the bathroom.(n17)

The accused contended that he and the victim had previously engaged in "kissing and necking" and had discussed having sexual intercourse. He stated that the victim had, on a number of occasions, encouraged him to make a surprise visit to her room. He stated that on the night in question, he and the victim met in the hallway, and proceeded to her bedroom, where they undressed and engaged in "heavy kissing" before he penetrated her. He conceded that after penetration, the victim became upset and told him to get off of her. He immediately complied.(n18)

At a juvenile proceeding, the trial court concluded as a factual finding that although the victim had consented to the "kissing and heavy petting," she did not consent to the actual act of intercourse. The court specifically concluded that the victim had not been sleeping when penetrated,(n19) but made no specific finding regarding whether the accused reasonably believed the victim consented. The trial judge concluded that the only force required for commission of the offense was "an act of sexual penetration."(n20) On appeal, the New Jersey Superior Court reversed, holding that the record was devoid of any evidence of force and specifically rejecting the trial judge's interpretation of force. The court stated such an interpretation would render the term "meaningless."(n21)

The Supreme Court of New Jersey reversed the judgment of the Superior Court and reinstated the disposition of the trial court.(n22) The court concluded that the word "force" was incapable of any "obvious or plain" meaning, notwithstanding the fact that every definition it cited used the word "power." Other adjectives noted by the court were "strength," "violence," and "compulsion."(n23) Turning next to the legislative intent of the New Jersey scheme, the court paradoxically focused on consent, an element specifically eliminated from the New Jersey rape statute, by drawing an analogy between the force necessary for rape and that necessary for criminal assault and battery. Noting that any unauthorized touching constitutes a battery, the court concluded that the force or coercion required by the rape statute was grounded in the unauthorized nature of the penetration.(n24) The court contended that the proper focus for the factfinder was whether the victim had either freely given permission for the act or the accused had a reasonable belief that the victim gave permission. The court ruled that the burden of proving the act of penetration and the nonconsensual nature of the act remained on the prosecution.(n25)

The New Jersey Supreme Court appears to hold that all acts of intercourse are presumptively nonconsensual. The trial judge's factual findings focused only on the victim's subjective state of mind, not on the accused's reasonable belief there had been consent.(n26) Hence, the M.T.S case creates criminal culpability when a victim, in the recesses of her mind and without regard to any manifestation of lack of consent, fails to actually consent. Such a bizarre and radical conclusion, though supported by the court's ultimate decision, is tempered by its rather tortured reasoning. Although the language of the New Jersey statute was derived from the Michigan Model, the Supreme Court of New Jersey, in effect, judicially adopted the Wisconsin legislative scheme, by rendering the element of force meaningless and establishing the broad interpretation of consent existing in the Wisconsin scheme. Notwithstanding its protestations to the contrary, M.T.S. reestablishes a focus on the victim's conduct by ascertaining whether the victim "authorized" the penetration or acted in a manner such that a reasonable person in the accuser's position would have concluded consent was given.(n27) Moreover, unlike the Wisconsin judicial definition of force, which requires the State to demonstrate some "generalized concept of conduct" that is "directed at compelling the victim's submission,"(n28) M.T.S. simply eliminates the element from meaningful consideration. Such a result is puzzling, given the reformist notion that the appropriate focus should be the accused's conduct.

A second case which demonstrates the confusing state of rape law is the Supreme Court of Pennsylvania's decision in Commonwealth v. Berkowitz.(n29) Berkowitz and the victim were students at East Stroudsburg State University. One afternoon, while looking for Berkowitz's roommate, the victim entered the accused's dormitory room. The accused was in the room, and he and the victim began talking. The victim was on the floor, the accused was on his bed. At some point, according to the victim, the accused moved off the bed and "kind of pushed" the victim back on the floor. He then straddled her and began kissing her. The victim testified she stated, "Look, I gott a go," and on a number of occasions said "no." She stated she was unable to move because the accused was "shifting" so that "he was over [her]." The victim successfully prevented the accused from having her perform fellatio and continued to say "no" in a "scolding manner."(n30)

After some period of time, both the victim and the accused got off the floor and the accused locked the door. The accused then "kind of... push[ed]" the victim on the bed, straddled her, removed her sweatpants and underwear, and engaged in sexual intercourse with her. The victim testified that during the act of intercourse, she continued to say "no" in a "moaning kind of way." She also stated she knew that the door could be easily unlocked from the inside. After the accused ejaculated on her stomach, they both got off the bed and the victim began dressing. In response to the accused's suggestion that they got "carried away," the victim stated, "No, we didn't get carried away, you got carried away."(n31)

The accused corroborated certain aspects of the victim's testimony. Specifically, the accused admitted "initiating contact" with the victim and that the victim said "no" throughout the various acts described above. The accused also corroborated the conversation with the victim after the act of intercourse.(n32)

The accused was convicted of rape and indecent assault. On appeal to Pennsylvania's intermediate appellate court, the accused contended that the facts were insufficient as a matter of law to prove "forcible compulsion" as required by Pennsylvania's rape statute.(n33) In response, the Commonwealth argued that the rapidity of the assault which led to the accused's ability to physically constrain the victim was sufficient to satisfy the element.(n34) The appellate court, nonetheless, reversed the accused's conviction to both rape and indecent assault.

The Pennsylvania Supreme Court concluded that the record was "devoid" of any evidence of "forcible compulsion" and accordingly affirmed the order of the Superior court reversing the rape conviction.(n35) The court rejected the argument embraced in M.T.S. that lack of consent alone was sufficient to establish force. "As to the complainant's testimony that she stated `no' throughout the encounter with Appellee," the court wrote, "we point out that, while such an allegation of fact would be relevant to the issue of consent, it is not relevant to the issue of force."(n36) The court concluded that "where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the `forcible compulsion' requirement" under Pennsylvania law is not met.(n37) The court did, however, reverse the lower court's decision on indecent assault on the basis that the Pennsylvania legislature "did not employ the phrase 'forcible compulsion' but rather chose to define indecent assault as 'indecent contact with another . . . without the consent of the other person."(n38) The net result for Pennsylvania rape prosecutions is an artificial barrier between consent and "forcible compulsion." Moreover, the court's application of the facts of the case to the statute is logically unconvincing. The court's conclusion that there was a lack of evidence establishing "forcible compulsion," all but ignores the fact that the accused attempted to sodomize the victim and was physically on top of her. Furthermore, the focus on the victim's failure to attempt an escape suggests the court is reading in a requirement that the victim resist, which was not relevant under the Pennsylvania statute.

As the various statutory schemes and the cited cases demonstrate, the attempts to "reform" rape laws have resulted in analytical inconsistencies which have led to unclear definitions, suspect legal reasoning, and--as both the M.T.S. and Berkowitz decisions demonstrate--the potential criminalization of noncoercive sexual conduct and the decriminalization of sexual conduct that is clearly coercive. Such a mishmash of results requires a dearer understanding of the reasons behind characterizing certain kinds of conduct as "rape," a focus on the evidentiary factors which are relevant to rape cases, and an incorporation of those factors into a logical, legally principled definition of rape. Article 120 of the Uniform Code of Military Justice and the present state of military law in regard to rape have the potential for such a cohesive approach.


The judicial interpretation of Article 120 of the Uniform Code of Military Justice(n39) provides an example of a principled development of rape law derived from the theoretical foundations provided by common law. The military approach to defining rape, albeit imperfect, is, nevertheless, consistent with the evolving nature of that crime and is analytically superior to its civilian counterparts. It incorporates an evidentiary-based approach to define the interplay between "force" and "lack of consent" without establishing artificial barriers to relevant factual inquiry.

The language of Article 120, which is based upon common law, has remained largely unchanged since 1950.(n40) The most recent amendment to Article 120 made the offense of rape gender neutral and removed the spousal exception.(n41) Otherwise, Article 120 has been driven by judicial interpretation which reflects a consistent flexibility and broadening in the interpretation of the concepts of "force" and "consent."

Tile Manual for Courts-Martial discussions of Article 120 have consistently indicated that force and lack of consent are necessary to the offense. In its discussion of "force," the 1951 Manual specifically noted that "the force involved in the act of penetration will suffice if there is no consent."(n42) While such language, taken literally, seems to indicate a conclusion similar to the M.T.S. formula, case law and subsequent versions of the commentaries have made clear that penetration will suffice only in situations involving constructive force, that is, when the victim is either incapable of consent or when consent would be futile. This language was abandoned in the 1969(n43) and 1984(n44) revisions.

The 1951 Manual for Courts-Martial specifically indicated a requirement for resistance on the part of the victim that included more than "mere verbal protestations." In the 1954 case of United States v. Henderson,(n45) however, the Court of Military Appeals interpreted the "resistance" indicating lack of consent as only requiring a showing that a victim's lack of consent was "reasonably manifested" under the "totality of the circumstances."(n46) The force required to sustain a conviction for rape, the court concluded, could be either actual or constructive, "and on occasion there may be a combination of the two."(n47) The Henderson language was incorporated into the 1969 and 1984 Manual revisions. Significantly, by the time of the 1969 revision, the "mere verbal protestations" language had been eliminated in favor of a permissible inference that the absence of a reasonably manifested lack of resistance could indicate consent.(n48)

The increased attention given to child sexual abuse and "acquaintance rape" prosecutions has led to a number of decisions by military courts which further expand and clarify the legal definitions of force and lack of consent and the interaction between these two concepts. The central factor in the military's ability to refine and adapt the meaning of force and lack of consent was the adoption of the "totality of the circumstances" test in Henderson.(n49 This test is rooted in an evidentiary approach which examines circumstances surrounding a particular act on a case-by-case basis. Coupled with the judiciary's expansive definitions of force and lack of consent, the totality test has been particularly important in establishing legal boundaries in child sexual abuse prosecutions. For example, in United States v. DeJonge,(n50) The Air Force Court of Military Review affirmed the conviction of a father for the multiple rapes of his daughter based on the coercive element inherent in a parent-child relationship. "Consent to sexual intercourse, if induced by fear, fright, or coercion is equivalent to physical force."(n51) This is also illustrated in United States v. Palmer, where the Court of Military Appeals validated this interpretation of the force component of Article 120, noting that the parent-child relationship is sufficient to establish the "moral, psychological, or intellectual force" under a constructive force theory.(n52)

In a case involving two adults, the Court of Military Appeals in United States v. Hicks,(n53) applied an expanded definition of constructive force. The victim was visiting her enlisted boyfriend and staying with him in his barracks room. The accused was her boyfriend's section leader. The accused told the boyfriend he could be in trouble for this arrangement, and suggested that the victim use his room instead. After the victim went to the accused's room alone, the accused entered and advised the victim of his identity, and told her that her boyfriend would "probably get thrown in the brig" because of her visit. He then asked her if she would "like to get [her boyfriend] out of trouble," to which she replied in the affirmative. The accused then suggested a "deal" which included a sexual encounter with the victim. The victim did not respond. The accused then stated, "It doesn't matter if you cooperate or not, I'm going to give it to you anyway." The victim "just stood there" as the accused undressed her and proceeded to engage in sexual intercourse with her. She admitted that she did not offer any resistance, because she "had read articles on rape [that advised] to never fight a man."(n54)

In affirming the conviction for rape, Judge Cox listed a number of factors about the encounter which sufficiently demonstrated the existence of "force and lack of consent," including: the nature of the relationship between the accused and the victim's boyfriend, the fact that the accused and victim did not know each other before the encounter, the "coercive atmosphere" created by the accused in threatening to report her boyfriend for a regulatory violation, the authoritative voice the accused used, the impact of what the victim had previously read, and the respective ages and sizes of the victim and accused.(n55)

Unlike many of the civilian revisionist statutory approaches, the totality of the circumstances approach does consider a victim's conduct, including whether the victim resisted, in certain contexts. As the eases discussed above demonstrate, that focus is not grounded in "hostility" toward the victim, but rather it is based upon an evidentiary analysis of those factors which make a particular act of intercourse coercive and unwanted. In United States v. Watson,(n56) the Court of Military Appeals discussed how a victim's conduct is relevant to the issue of consent. Watson was an Air Force officer who engaged in an act of intercourse with a domestic servant in his dormitory room. The military judge acquitted the accused of rape, but convicted him of indecent assault.(n57) The acquittal was based upon the judge's contention that Article 120 required a victim to "manifest her lack of consent in some positive manner."(n58) In affirming the conviction for indecent assault, the Court of Military Appeals specifically rejected the military judge's reasoning, stating that the appropriate focus for a factfinder is whether the victim consented or whether a particular accused reasonably and honestly believed the victim consented. The court noted it was "bewildering" that the military judge would conclude that the victim had an independent legal duty to manifest lack of consent.(n59) The entire issue of "manifestation of lack of consent" is simply an evidentiary inference, not a separate element of the offense. Evidence of consent, or the lack thereof, is based upon an examination of the totality of the circumstances, of which a victim's "manifestation" is not necessarily determinative.(n60)

United States v. Bonano-Torres,(n61) while similarly focusing on a victim's conduct, assessed that conduct vis-a-vis the element of force. The accused and the victim in this case knew each other from their respective duty assignments. One evening while on temporary assignment, the two went to dinner together and consumed alcohol. Upon returning to the hotel where they were staying, the victim permitted the accused to use her bathroom. She testified that at some point she became aware that the accused was in bed with her and attempting to sexually arouse her. On at least two occasions, the victim advised the accused that she did not wish to engage in sexual intercourse with the accused "because [he] was married." After drifting into and out of sleep, the victim testified that she ultimately assented to sexual intercourse "because [she] knew he wouldn't leave [her] alone until he [engaged in sexual intercourse]" and "all she wanted was to go to sleep."(n62) On appeal, the Army Court of Military Review set aside the accused's rape conviction finding that the evidence of force was insufficient. In its discussion of the element of force, the court argued that the victim's failure to resist was "highly significant" in assessing whether the act was consensual. Noting that nothing in the record indicated the victim suffered from a physical or mental impairment which would have permitted the prosecution to use the concept of constructive force, the court concluded that the facts demonstrated simply that the victim The Court of Military Appeals upheld the decision of the Army Court of Military Review and clarified its position on the appropriate consideration of a victim's "resistance."(n63)

The court concluded that Article 120 required some assessment of both an accused's and victim's conduct in determining the legal sufficiency of the element of force, which must be "something more" than the incidental force required for penetration. However, while resistance may be a relevant factor in determining this "something more," it is not a legal necessity to a determination of the existence of force.(n64) The court also specifically noted that the lower court's decision and analysis were based to a great degree on its fact-finding authority. Thus, while a resistance requirement was improper as a matter of law, it was not irrelevant in a final determination of whether the prosecution had proved its case beyond a reasonable doubt.(n65)

The Watson and Bonano-Torres opinions eliminated any per se rule requiring a victim to resist or manifest a lack of consent, but nonetheless validated the relevancy of such conduct. In addition, the opinions seem to recognize the legal and logical interplay between "force" and "lack of consent." On the one hand, the Court of Military Appeals opinion in Bonano-Torres seemed to adopt the rather restrictive interpretation of constructive force articulated by the Army Court of Military Review.(n66) In addition to those "classic" situations wherein the degree of force required is grounded in a victim's disability, principles of constructive force were used in the Henderson, DeJonge, and Watson opinions when examining the coercive nature of the relationship between the accused and victim which resulted in the act of unwanted sexual intercourse.

The Court of Military Appeals examined the parameters of constructive force in United States v. Clark.(n67) The accused was the victim's direct supervisor at a dining facility. The accused approached the victim during the duty day and ordered her to accompany him into a nearby shed. The accused closed the door after the victim entered the shed, grabbed her arm, and kissed her. He then unbuttoned his trousers and placed the victim's hand on his penis. He told her to unbutton her trousers, and pulled them down and ultimately engaged in sexual intercourse with her. The victim testified that she did not respond to the accused's kiss and "stiffened her body." She stated she only unbuttoned two trouser buttons, hoping that the accused would be unsuccessful in pulling them off. During the act of intercourse, the victim stated "someone may come" in an effort to get the accused to stop.(n68)

The Army Court of Military Review affirmed the rape conviction. The court held that the superior-subordinate relationship, the isolated location of the shed, the relative sizes of the accused and victim, and the initiation of contact by the accused by "grabbing" the victim combined to satisfy the requirement of force. Recognizing that the victim did not articulate or manifest any nonconsent, the court specifically rejected the accused's contention that this factor mandated reversal. Citing both Watson and Bonano-Torres, the court concluded that lack of manifestation raised only a permissible inference of consent, which need not be drawn by the factfinder.(n69) Noting that the victim testified that she was afraid of the accused, the court concluded that the underlying factors surrounding the incident which satisfied the element of force were also sufficient to corroborate her testimony and establish lack of consent.(n70)

The Court of Military Appeals upheld the conviction but could not agree on the legal theory. Judge Crawford, in an opinion joined by Judge Cox, contended that the record did not demonstrate actual force. Rather, the superior-subordinate relationship between the parties created a situation which called for the application of constructive force principles, such that the "force necessary for penetration will suffice."(n71) In a detailed examination of military law, Judge Crawford noted that the application of principles of constructive force in military jurisprudence originated in the last century. Thus, the lack of actual "physical violence" did not mandate reversal. Focusing on the factors which the Army Court of Military Review concluded established actual force, Judge Crawford noted that those same factors established constructive force because their existence made it "reasonable for [the victim] to fear for her life, to have a reasonable fear of bodily injury, and to believe that resistance would be futile."(n72)

In a concurring opinion, Judge Wiss disputed language in Judge Crawford's opinion which seemed to support the view that the superiorsubordinate relationship automatically results in the application of constructive force principles. The practical conclusion of such an approach, Judge Wiss cautioned, is a prima facie case for rape on every occasion when there is sexual contact between a superior and a subordinate.(n73)

Chief Judge Sullivan, in his separate concurring opinion, argued that the Army Court of Military Review's legal analysis was correct and that the application of a constructive force theory was improper. Noting that principles of constructive force are analytically accompanied by the "doctrine of implied lack of consent," the Chief Judge, citing Judge Cox's opinion in Palmer,(n74) seemed to create a distinction between those occasions when a victim is incapable of consent (such as when the victim is asleep, unconscious, or lacks mental capacity) and those occasions when the intimidating, coercive behavior or environment "created" by the accused results in the submission by the victim.(n75)

Judge Gierke contended in his dissent that the prosecution failed to establish either actual or constructive force. With regard to the superiorsubordinate relationship, Judge Gierke focused on the lack of any evidence that the relationship was the "operative" factor in the victim's decision to submit. In regard to the issue of consent, Judge Gierke focused on the victim's age and sexual experience in concluding that she could have said "no."(n76)

In many respects, the judges' arguments about actual or constructive force are a matter of semantics. The expansion of constructive force principles to situations in which a victim is "capable" of consent runs the risk, as Judge Wiss points out, of making all superior-subordinate sexual contact definable as rape without regard to the totality of the circumstances surrounding the particular act.(n77) A second difficulty with Judge Crawford's approach is its focus on the reasonableness (or lack thereof) of the victim's reaction, as opposed to those coercive acts by the accused which caused that reaction,(n78) Exclusive focus on the victim for the establishment of force runs counter to the totality of the circumstances analysis and the goal of eliminating victim resistance as a legal requirement for rape.

Chief Judge Sullivan's opinion, on the other hand, contains the seeds of a workable definition of force which eliminates the focus on the victim and the concerns of Judge Wiss, while at the same time allowing a factfinder to characterize a broad array of coercive, unwanted acts of intercourse as rape. The promise lies in the redefinition of constructive force as existing only in those situations in which a victim is incapable of consent. In such a situation, the doctrine of implied lack of consent is clearly appropriate given the nature of the act, and the "force necessary for penetration" is sufficient given the victim's incapacity. Concurrent with such a definitional restriction of "constructive force" is an expansion of the definition of actual force to include all actions by an accused and surrounding circumstances and factors which indicate that the act is "coercive." These nonexclusive factors would include intimidation, threats of harm, superior-subordinate coercion, creation of a coercive atmosphere (such as refusal to heed a victim's verbal protestations), and other evidentiary factors indicating by the totality of the circumstances that the acts were by "force and lack of consent." Such a definition is consistent with military case law, the development of the crime of rape, and provides the term "force" with practical meaning.

In United States v. Webster,(n79) the Court of Military Appeals revisited the legal and evidentiary interplay between "force and lack of consent" and more specifically articulated how to assess the interaction between an accused and victim in determining the sufficiency of those elements. The accused and victim in Webster were involved in the early stages of a "dating" relationship. On one evening at the victim's apartment after approximately an hour and a half of conversation, the accused approached the victim and suggested they "go into the bedroom together." The victim stated "no," but the accused continued to approach her and was ultimately successful in having her sit on a kitchen counter despite her initial attempts to physically avoid him The accused ignored repeated verbal protest from the victim and removed her shorts and bikini bottom before penetrating her. The victim testified that she asked the accused to ejaculate in her hand, and he complied. She testified that she did not scream, attempt to get away from the accused, or otherwise "physically repel" the accused's advances. She stated that she did not believe that she could move, and was not sexually aroused. The accused, via the admission of his confession, confirmed that an act of sexual intercourse occurred and that the victim had verbally protested on a number of occasions. However, he contended that the victim's physical conduct indicated to him that she was consenting.(n80)

The Coast Guard Court of Military Review, in upholding Webster's conviction for rape, specifically concluded that the victim's consistent verbal protests and initial attempts to break off physical contact with the accused were legally sufficient to demonstrate "force more than incidental to the act of intercourse."(n81) While recognizing that the victim neither feared nor physically resisted, the court declined to conclude that those factors were determinative on the issue of force. Likewise, the court concluded that there was ample evidence of the victim's actual lack of consent, and the manifestation thereof, to satisfy the legal requirements of that element.(n82)

In an extensive footnote, Judge Edwards of the Coast Guard Court of Military Review lamented the failure of Congress to modify Article 120 and proposed a scheme which recognizes varying degrees of rape depending upon varying degrees of force, coupled with the nonconsent of the victim. Such a scheme, he contended, "adequately balances the rights of both the alleged victim of sexual assault and the accused" by requiring affirmative permission which "may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances."(n83) Such a scheme, while consistent with the present approach of assessing the totality of the circumstances, would only benefit a military accused by providing the potential of being convicted of a lesser offense based upon the lesser degree of force. To the extent that differing acts of coercive, unwanted sexual intercourse are deserving of more or less punishment, the present sentencing system serves the interests of the accused by permitting the sentencing authority to consider those factors.

On appeal, the Court of Military Appeals affirmed the decision of the Coast Guard Court of Military Review. Citing both Watson and BonanoTorres, the opinion by Chief Judge Sullivan once again emphasized that Article 120 does not require a victim to either resist or manifest a lack of consent.(n84) The appropriate focus in determining force and lack of consent is an evidentiary assessment based upon the "totality of the circumstances." In this particular case, the Chief Judge noted, the refusal of the accused to heed the victim's verbal protests, the continued nature of those protests, his continued advances toward her, and the physical acts leading up to penetration were sufficient force. On the issue of consent, the opinion noted that the victim said "no" on a number of occasions.(n85)

The Webster approach couples the totality of the circumstances test with a broad definition of force and lack of consent. It is a logical, principled analysis. The practical strength of the approach is its flexibility in its definition of rape, permitting a wide variety of coercive and unwanted acts of sexual intercourse to be criminalized. Because the language of Article 120 is directly derived from the definition of rape at common law, the court accepts the view that "the inquiry into consent and force are [sic] virtually identical"(n86) without mandating that the common analytical linchpin of that inquiry be a victim's resistance. Rather, all circumstances surrounding a particular act of intercourse are relevant on the issue of coercion. The Webster approach refrains from compartmentalizing various kinds of evidence as either probative of force or lack of consent. Evidence of the verbal protests of the victim in Webster not only demonstrate that the victim did not consent, but those same protests demonstrate the coercion needed to show force.(n87)

The Webster opinion is not immune from criticism. Chief Judge Sullivan's opinion, although initially promising in its analysis and application, unfortunately also includes an analysis of the facts using a resistance requirement. As Judge Cox correctly points out in his concurring opinion, "no measure of resistance is required for a rape victim."(n88) Judge Cox further points out, however, that a "failure to resist where resistance might be expected might give rise to an inference that the prosecutrix actually consented."(n89)

Judge Cox further stated that force only means the amount of force necessary for sexual penetration. He argued that nothing in the language of Article 120 "suggests or implies" that any additional force "beyond penetration" is required, notwithstanding the language contained in the Manual indicating the contrary.(n90) Judge Cox's position is not supported by Article 120 or case law. Such an interpretation of force renders that element meaningless and superfluous because Article 120 specifically requires a separate element that an accused commit an act of sexual intercourse with the victim. Such an interpretation is inconsistent with traditional methods of statutory interpretration.(n91)

In essence, Judge Cox advocates the approach used by the Supreme Court of New Jersey in M.T.S. However, as noted above, that approach misinterprets New Jersey's own statute and focuses a factfinder's attention exclusively on the issue of whether a victim consented. In short, the New Jersey approach authorizes a factfinder to only consider half the picture -- the victim's conduct. Common characteristics of "acquaintance rape" cases often include initially consensual sexual activity short of intercourse, and little or no indication on the part of the victim that the act is unwanted.(n92) Because the act of sexual intercourse, by its very nature, requires an assessment of mutual perception, the M.T.S. approach creates application difficulties and thus should not be adopted by the military.


The analysis suggested by the majority in Webster is consistent with the statutory language of Article 120 and its judicial interpretation. It is expansive in its assessment of evidence which satisfies the element of force and lack of consent, while avoiding the analytical pitfalls apparent in statutory revisions and cases such as Berkowitz and M.T.S. The greatest strength of the approach is its successful maintenance of the theoretical similarity between force and lack of consent that existed at common law and, at the same time, its elimination of resistance as a legal prerequisite to criminal culpability. It recognizes the logical and legal identity between the two concepts, thus eliminating artificial analytical barriers between the various kinds of evidence used to prove the existence of a coercive, unwanted act of sexual intercourse. The approach is progressive, yet at the same time successfully avoids the suspect legal reasoning, impracticable statutory redefinitions, and radical sociological assumptions which affect the law of rape in the civilian sector. It accomplishes what other jurisdictions have, for the most part, failed to accomplish: a principled approach to criminalizing all sexual intercourse which is coercive and unwanted.

(n1) 10 U.S.C.A. Subsection 801-940 (West 1983 & Supp. 1995) [hereinafter UCMJ].

(n2) See, e.g., Commonwealth v. Burke, 105 Mass. 376 (1870) (citing Co. Lit. 123 b.2 Inst. 180).

(n3) 65 AM. JUR. 2d, Rape, Subsection 4-14 (1972 & Supp. 1995); See generally Christina M. Tchen, Rape Reform and a Statutory Consent Defense, 74 J. CRIM. L. 1518 (1983); Jennifer Trucano, Force, Consent, and Victims' Rights: How In Re M.T.S. Reinterprets Rape Statutes, 38 S.D.L. REV. 203 (1993).

(n4) Cheryl Siskin, No. The 'Resistance Not Required Statute' and 'Rape Shield Law' May Not Be Enough, 66 TEMP. L. REV. 531 (1993).

(n5) Id. at 537-39, n. 54.

(n6) Id . at 538.

(n7) Susan Estrich, Rape, 95 YALE L.J. 1087, 1090, n.5 (1986); Cynthia A. Wicktom, Note, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 GEO. WASH. L. REV. 399, 411-13 (1988).

(n8) See Sakthi Murthy, Rejecting Unreasonable Sexual Expectations: Limits on Using Rape Victim's Sexual History to Show Defendant's Mistaken Belief of Consent, 79 CALIF. L. REV. 541 (1991).

(n9) MODEL PENAL CODE, comments, pt. II (1980). For criticisms of the approach taken by the Code, see, e.g., Estrich, supra note 7, at 1134-47; Wicktom, supra note 7, at 414-17. The MODEL PENAL CODE divides rape into three separate crimes. Rape is defined as an act of sexual intercourse between a man and a woman, not his wife, when "he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone." Rape is viewed as a first degree felony only if the actor "inflicts serious bodily injury" or the victim was not a "voluntary social companion" who had a prior sexual relationship with the accused. Otherwise it is a second degree felony. "Gross Sexual Imposition," a third degree felony, occurs when a man "compels" a woman to submit to intercourse "by any threat that would prevent resistance by a woman of ordinary resolution." MODEL PENAL CODE at Subsection 213.1(1) & (2). Both Wicktom and Estrich maintain that the MODEL PENAL CODE does not eliminate the focus on the victim's conduct.

(n10) MICH. COMP. LAWS ANN. Subsection 750-520a-5201(West 1985). For discussions of the Michigan Model, see, e.g., Estrich, supra note 7, at 1147-60; Tchen, supra note 3, at 153738; Trucano, supra note 3, at 215-20; Wicktom, supra note 7, at 418-20. Michigan defines the "force or coercion" needed to establish "criminal sexual conduct" as follows: "[A]ctual physical force or physical violence" which "overcomes" the victim; threats or use of actual force, and the victim believes that the accused has the "present ability" to carry out those threats; threats of future retaliation (kidnapping, extortion, or physical punishment) by the accused against either the victim or another, and the victim believes that such threats can be carried out; unethical medical treatment; and effecting intercourse by "concealment or surprise." MICH. COMP. LAWS ANN. Section 750.520b.

(n11) Trucano, supra note 3, at 215.

(n12) WIS. STAT. ANN. Section 940.225 (West 1982).

(n13) See, e.g., State v. Baldwin, 304 N.W. 2d 742 (1981); State v. Bonds, 477 N.W. 2d 265 (1991).

(n14) See, e.g., Tchen, supra note 3, at 1543-45.

(n15) 415 Pa. Super. 505 (1992), aff'd in part, vacated inpart, 641 A.2d 1161 (1994).

(n16) 129 N.J. 422 (1992).

(n17) 129 N.J. a t 425-428.

(n18) Id.

(n19) Id. at 427.

(n20) Recent Case: Rape Law, 106 HARV. L. REV. 969, 969-70, 972-73 (1993). The trial judge concluded that "I think there was petting, heavy petting, and then before the young lady knew it, he was there, he had penetrated her." Id. at 969 n. 8. He also concluded, "[T]hey are both telling the truth." Id. at 973 n. 32.

(n21) State in Relation to. M.T.S., 588 A.2d 1282, 1285 (N.J. Super. Ct. App. Div. 1991).

(n22) 129 N.J. at 450.

(n23) Id. at 430-31.

(n24) Id. at 439-47. See also N.J. STAT. ANN. Section 2C: 14-2c(1) ("Sexual Assault" occurs when one sexually penetrates another by "force or coercion;" when the victim is physically helpless, mentally defective or handicapped; when the actor has supervisory or disciplinary power over a hospital patient or prisoner by "virtue of the actor's legal, professional, or occupational status;" the victim is between the ages of 16 and 18; the actor is related to the victim to the third degree; the actor is in the position of a parent, or is a parent, the actor has "supervisory or disciplinary power" over the victim; or the actor is at least four years older than a victim between the ages of 13 and 16.); Trucano, supra note 3.

(n25) 129 N.J. at 447.

(n26) Recent Case, supra note 20, at 973.

(n27) Id. at 972.

(n28) WISC. STAT. ANN. Section 940.225 (West 1982).

(n29) 415 Pa. Super. at 505.

(n30) Id. at 507-09.

(n31) Id.

(n32) Id. at 511-12.

(n33) Id. at 512-13. 18 PA. CONS. STAT. Section 3121 defines rape as an act of sexual intercourse by an individual with another not his spouse either by "forcible compulsion;" by "threat of forcible compulsion" which prevents resistance by one of "reasonable resolution;" of a victim who is unconscious; or of a victim "so mentally deranged or deficient that such person is incapable of consent." 18 PA. CONS. STAT. Section 3107 states, "The victim of a rape need not resist."

(n34) 415 Pa. Super. at 514.

(n35) 641 A.2d at 1164.

(n36) Id. (citing Commonwealth v. Mlinarch, 542 A.2d 1335 (1988)).

(n37) Id.

(n38) Id.

(n39)10 U.S.C.A, Section 920 (West 1983 & Supp. 1995). See also, MANUAL FOR COURTS-MARTIAL [hereinafter MCM], app. 2 (1995).

(n40) Article 120(a) states: "Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct." Article 120(b), entitled Carnal Knowledge, deals with sexual intercourse between an adult and female under the age of sixteen. Earlier versions provided: "Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without her consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct."

(n41) National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat. 2315,2506 (1992).

(n42) MCM, ch. XXVIII, para. 199(a) (1951).

(n43) MCM, para. 153b(2)(b) (1969).

(n44) MCM, ch. IV, para. 45(c) (1984).

(n45) 15 C.M.R. 268 (U.S.C.M.A. 1954).

(n46) Id. at 273.

(n47) Id.

(n48) See MCM, supra notes 43 and 44.

(n49) 15 C.M.R. at 268.

(n50) 16 M.J. 974 (A.F.C.M.R. 1983).

(n51) Id. at 976 (citing United States v. Jenkins, 16 C.M.R. 781 (A.F.B.R. 1954)).

(n52) 33 M.J. 7, 9-11 (C.M.A. 1991).

(n53) 24 M.J. 3 (C.M.A. 1987), cert. denied, 484 U.S. 827 (1987).

(n54) Id. at 4-5.

(n55) Id. at 6.

(n56) 31 M.J. 49 (C.M.A. 1990).

(n57) Id. at 50-51.

(n58) Id. at 55-56, app.

(n59) Id. at 52.

(n60) Id. at 52-54.

(n61) 31 M.J. 175 (C.M.A. 1990).

(n62) Id. at 176-77.

(n63) 29 M.J. 845, 849-51 (A.C.M.R. 1989).

(n64) Bonano-Torres, 31 M.J. at 178-79.

(n65) Id.

(n66) See also, United States v. Townsend, 34 M.J. 882, 884 (C.G.C.M.R. 1992). In Townsend, the accused's conviction for rape was overturned primarily because the victim did not manifest "resistance" but "froze" when her verbal protests went unheeded. As in BonanoTorres, the court used its factfinding powers under Art. 66, UCMJ, supra note 1.

(n67) 35 M.J. 432 (C.M.A. 1992), cert. denied, 113 S. Ct. 1948 (1993).

(n68) 32 M.J. 606, 607-08 (A.C.M.R. 1991).

(n69) Id. at 609.

(n70) Id. at 609-11.

(n71) Clark, 35 M.J. at 434-35.

(n72) Id. at 436.

(n73) Id. at 436-437 (Wiss, J. concurring in part and in result). 7424 M.J. at 3.

(n75) Clark, 35 M.J. at 437 (Sullivan, C.J., concurring in result).

(n76) Id. at 437-41 (Gierke, J., dissenting).

(n77) Id. at 436.

(n78) Id. at 434-35.

(n79) 40 M.J. 384 (C.M.A. 1994).

(n80) Webster, 37 M.J. 670, 671-72 (C.G.C.M.R. 1993).

(n81) Id. at 673-75. This panel of the Coast Guard Court of Military Review specifically declined to use the resistant-centered analysis found in Bonano-Torres and Townsend.

(n82) Id. at 675 n.8.

(n83) Id.(citing State in Interest of M. T.S., 609 A.2d at 1277).

(n84) 40 M.J. at 386-87. The Chief Judge's opinion was joined by Judges Gierke and Wiss.

(n85) Id.

(n86) Id. at 387 n.2 (citing Estrich, supra note 7, at 1107).

(n87) See also, Mary L. Hahn, Survey in Developments in North Carolina Law, 70 N.C.L. REV. 2027, 2029 (1992); Hahn discusses the reluctance of North Carolina courts to use an accused's failure to heed verbal protestations of a victim as legally sufficient to satisfy the "force" requirement.

(n88) 40 M.J. at 388 (Cox, J., concurring).

(n89) Id, (citing MCM, pt. IV, para 45c).

(n90) Id.


(n92) Webster, 37 M.J. at 674.



[*] Major Murphy (B.A., M.A., I.D., Duquesne University) is an Assistant Professor of Law, Department of Law, United States Air Force Academy, Colorado. He is a member of the Pennsylvania State Bar.

Copyright of Air Force Law Review is the property of Superintendent of Documents and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
Source: Air Force Law Review, 1996, Vol. 39, p19, 18p.
Item Number: 9606205351