INSTITUTIONALIZING SEXUAL AGGRESSION IN THE MILITARY - Part 2

Stan Goff

The Law

The Uniform Code of Military Justice is a Congressionally-generated code of criminal law applicable to all members of the United States armed services, adopted in 1951. The U.S. Constitution itself gives Constitutional exceptions to the military that are embodied in this military law. Those under UCMJ jurisdiction are not entitled to hearings before a grand jury, for example. And many imprisonable violations under the UCMJ do not exist in the civilian world, like leaving your job without permission, lying to your boss, or saying certain things about your job or your employer in public. It also has some very elastic violations that would not withstand the kind of scrutiny a good civilian lawyer would challenge in a non-military courtroom – like “conduct unbecoming an officer,” actions “prejudicial to good order and discipline,” and conduct that “brings discredit upon the armed forces.” That last one was actually created during World War I to prosecute service members for unpaid debts, but is now applied more generally albeit selectively. These elastic clauses give military commanders an immensely powerful tool for control over subordinates, because these offenses can be pretty much applied to any human being who is not a candidate for canonization, if one’s life is placed under close enough scrutiny.

The UCMJ also has crimes of omission, of failure to act, like “Article 92: Failure to act. ‘Failure to act’ is punishable as a dereliction of duty. The elements of that offense are: (a) That the accused had certain duties; (b) That the accused knew or reasonably should have known of the duties; and (c ) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.”

This, of course, is what was used in the very limited prosecution of Tailhook, but it is also emblematic of the potential power the military has as an institution to redress problems if the command emphasis exists and is backed by institutional will. This is one reason that public pressure can, in some instances, be brought to bear with particular force in the military – as it has been with above average success in the ‘racial’ integration of the armed services. The military system has the power of law to issue directives, and not merely prohibitions. This is a very important distinction.

Article 134 of the UCMJ specifies, among other things, for sexual assault “(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner; (2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces.” Note that under military law, there is no such thing as spousal rape (or abuse, for that matter), and that the violation of sexual assault is not a violation against the individual woman (or on some instances, man), but a violation against “good order and discipline,” that is, the military as an institution. The US armed forces further specify that rape is not rape unless direct force is employed against the victim – implying that the failure to fight back, even if the victim fears that fighting back would result in serious bodily harm or even death, can nullify the charge of rape.

It is not clear yet whether the January 2005 changes that are standardizing definitions across all services, and which now include “lack of consent” in addition to force to define sexual “assault, applies to rape specifically, or if that specific charge – rape, as opposed to the more general sexual assault – still requires the element of force. No mention has been made of extending sexual assault protection to spouses in the DoD communiqués. The changes will include bypassing commanders to report to avoid collateral charges that are often leveled against the victims of rape and sexual assault, related to drinking, adultery, etc., but again this does not preclude the military continuing to level these countercharges once the rape or assault case is formally filed.

Military law, for now at least until OGC implements the changes, takes no account of mitigating factors from the victim’s standpoint – that is, the validity of consent when a woman is passed out from liquor, for example, or the inhering coercion in a confrontation with a member of one’s chain of command. Direct force is the standard until new rules are put into effect, and may still be the standard for the potential capital charge of “rape.”

The fact that rape, as defined by the military – someone “who commits an act of sexual intercourse with a female not his wife, by force and without consent” (note that male-male rape and spousal rape are non-existent in the military) – is punishable by death if so deemed by the court martial authority, adds to the reluctance to prosecute aggressively, not out of squeamishness about capital punishment, but because capital cases typically involve a long, and very public, appeals process that is often unwelcome in the armed forces.

Women (and occasionally men) who are victims of rape on military installations by other military members do not have recourse to civilian courts until they have completely exhausted every remedy within the military, which can take years, especially if the military drags its feet.

But the differences between military law and civilian law in the US are more than which has the more archaic definition of rape. Military law internalizes societal norms, whether legal, social, or both, and codifies them in a way designed to ensure either the efficacy of the institution or for bureaucratic self-protection (or both). These norms are still reflections of social standards in the society-at-large, incorporated into the body of one institution of the state.

Legislatures, that is, law-making bodies, are also state institutions, and they in turn operate within the parameters laid down by a Constitution. In order to reveal the paradoxical content of military law and the military as a social institution, it is necessary to contrast it with the liberal state as a whole, and with the concept of “law” in a liberal state. It is, therefore, necessary now to turn to the question of how law operates in a liberal state.

The contrast between the military definition of rape, which is basically held over from a definition that was general in the 1950s before it came under challenge from women, and the commonly used definition of rape in civilian law serves to put the issue of rape and how it is perceived on a historical continuum.

Since rape is a state-level (as in Montana or Alabama-state) offense in civil law, we can not include very state’s rape laws as examples, and they do vary somewhat, including that a few states still do not classify forced sex between male and male to be rape. But for our purposes here, I will use our most populous state, California, whose laws are a good approximation of most rape law in the US.

California defines rape as “an act of sexual intercourse carried out:

1. “against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”

2. where the victim is unable to resist because of an intoxicating, narcotic, or anesthetic substance that the accused has responsibility for administering.

3. where the victim is unconscious of the nature of the act and the perpetrator knows it.

4. where the victim believes, due to the perpetrator’s intentional deceptive acts, that the perpetrator is her spouse.

5. where the perpetrator threatens to retaliate against the victim or any other person, and there is a reasonable possibility the perpetrator will execute the threat — “threatens to retaliate” means threatens to kidnap, imprison, inflict extreme pain, serious bodily injury, or death.

6. where the victim is incapable of giving consent, and the perpetrator reasonably should know this.

7. where the perpetrator threatens to use public authority to imprison, arrest, or deport the victim or another, and the victim reasonably believes the perpetrator is a public official.”

This definition of rape is certainly more comprehensive than the military’s more archaic one, but there are still some pretty big loopholes for offenders. First of all, if the assailant tries to have forcible intercourse, but fails to achieve “penetration,” the crime is no longer rape, but assault or attempted rape, a lesser crime regardless of intent. Yet the same intent that is ignored if penetration is disproved to reduce the severity of the charge becomes the most salient issue for the defense in a rape trial, because even if penetration occurred, and force or coercion were present, the defendant can force the prosecution to prove that he intended to rape and understood that “consent” was absent.

William Kennedy Smith beat his rape charge when his lawyer convinced the jury that while the victim was forced to have sex, Smith “misread” the “signals” and “reasonably” believed she had “consented.” I know that there are a lot of quotes therein, and that is because each of these categories is contestable in court – but only to the advantage of the defendant.

Because there are so many legal nuances inhering in the charge of rape, the probability of conviction or exoneration, whether a defendant is guilty or innocent, because prosecutors do not bring charges against defendants they believe will beat them (another issue for another venue), is the quality (and the price) of the defendant’s legal representation. Statistics show that being white and-or rich is a highly significant statistical advantage in court when rape charges are leveled… rich being far and away the greatest advantage.

This is where the subtleties come in, so I ask the reader’s attention and indulgence. Studying this was difficult for me, because I am accustomed to thinking of the law in the terms with which we are most familiar. But ideology is a structured set of beliefs as well as a way of knowing that renders anything inimical to it invisible, including the existence of ideology itself – which poses as common sense – and I have been habituated to seeing things in the ways determined by the unquestioned assumptions of the dominant ideology.

My children told me again and again, for example, that my failure to grasp fashion (which I enjoy ridiculing, which in turn annoys the hell out of them) was a failure to grasp sense. My own assumption here is that the reader is no more or less affected than I have been by the dominant ideology.

I will use some of the philosophical insights into liberal state law gleaned from reading two legal scholars – Dr. Catharine A. MacKinnon, law professor at the University of Michigan Law School, and Dr. Kimberle Crenshaw, law professor at the University of California at Los Angeles. I commend the work of both these activists and law professors to anyone interested in a deep critique of liberal law.

They begin with the question of the state itself. What is it? What is its nature? How do we characterize it? A lot of people have tackled this issue from a lot of angles: Locke, Marx, Weber, Dahl, Poulantzas, Gramsci, et al. All the foregoing were men, of course, and that’s why the two women I cited above are interesting in this discussion – because they have both examined the state from the standpoint of women, and both have addressed the issue of rape extensively in their work (which not surprisingly has made them lightning rods).

The liberal state is an institution of power, but it is not the sole source of power. It can send police to your door to arrest you if you violate the law, and they are legally entitled to use all necessary force, up to and including killing you, to ensure your compliance. It can send the armed forces to Iraq to occupy it, or order the bombing of an aspirin factory in Sudan, or sign allegedly-binding treaties with other states.

It makes the laws that we are then bound to follow, and even has courts to interpret the laws – because as we have seen these laws can never anticipate the complexity of real life nor the kinds of social pressures that emerge during the constant evolution of society – and this interpretive process in the courts is designed to ensure the stability of the state. This judicial motivation is an important point.

But there are obviously many other systems of power operating in society that are not state power. The power a boss exercises over an employee, the power a parent exercises over a child, the power (social and economic) that many men exercise over many women. (I already anticipate the argument that women actually exercise power over men, but that is adaptive, defensive, and negotiated power that is not borne out by or reflected in any empirical indices of actual social, economic, or political power.) The question of what the state is and does can not be answered without figuring out how the liberal state relates to these other forms of power.

When I refer to the state, I mean the organization that exercises political power within the nation-state, a geographically-defined political territory. The state is constituted by a government (not the same as a state, but a transient part of a state) that consists mainly of members of the dominant class(es), an administrative staff, generally organized as a bureaucracy, armed bodies designed to enforce laws and control populations internally and respond to “external threats” and-or militarily pursue its extra-territorial interests. The state has the power to make and interpret laws, force its citizens and residents to comply with those laws, and the power to collect taxes in order to reproduce itself as an organization.

A political regime, as I will use term further along, is not used a reference to a specific government – like the “Bush regime,” or “the Saudi regime.” Here it refers to the definition of regime as a set of agreed-upon principles, norms, rules and decision-making procedures, which govern the actions of the state. When I refer to the “liberal state,” that is a reference to a particular regime in this sense. When Peter Gowan described globalization, in the same way, he specified it as a Dollar-Wall Street Regime. It is not a reference to the actors, but to the norms.

Government is a constituent part of the state, specifically the people who are currently running the state. The Bush government is now in control of the US state. Government’s – even exceptionally reckless and incompetent ones – can change without disrupting the essential organizational stability of the state.

‘Civil society’ must be differentiated from both the ‘civilian sector,’ and society at large. “Civil society encompasses all social relations that are outside the state but that influence it… Civil society is not to be confused with the people. The people can be considered as all citizens having [abstractly –SG] equal rights; civil society is citizens organized and weighted according to the power of the groups and organizations they are part of. The state formally exerts its power over civil society and over the people. Actually civil society is the real source of power for the state, as it establishes the limits and conditions for the exercise of state power.”

For the purposes of this essay, when I say ‘civilian sector,’ this means any adult in the United States not subject to the Uniform Code of Military Justice.

MacKinnon writes that “Gender is a social system that divides power.” This is absolutely basic to understanding the law, rape, and how the military as an institution responds to rape. I can not spend the time in this article necessary to rebut notions of this sexual division of power being part of “nature,” and I can not trump the idea held by some that it is God’s will, because I can not threaten the eternal salvation of those who disagree with me. My premise is that social constructions of sexuality – of masculinity and femininity – appear as “sense,” the same way fashion appears to my children, but that they are interfused with systems of material power.

Gender is a social system of power division that has the notion of difference at its core. Here is one of those subtleties. In many societies, the state still puts this gender difference at the center of its legal edifice, but in ours, where the struggle by women for legal equality has gone on for some time, this question of difference has been challenged – not with absolute success, but with some significant changes – by the notion of equality in the abstract for all people, including women, who are assumed by the liberal state in many cases, to be the same as men… in fact, an abstract person, genderless in the eyes of the law.

There are several problems with this. First, the law of the abstractly equal person does not recognize a pre-existing history of material, social inequality. The old Anatole France quote that puts this in bold relief is, “The law, in its majestic equality, forbids rich as well as poor from sleeping under bridges, begging in the streets, and stealing bread.” So we are left, regarding gender, with legal abstract equality that refuses to see this
historically-evolved social inequality it overlays, and which existed “prior to operation of the law.”

Women in the US were regarded as chattel in the 19th Century, prevented from full control over themselves and their property by marriage coverture well into the 20th Century, denied the right to vote until after World War I, didn’t achieve legal control over their own reproductive capacity until the 1960s (this is now under attack again), and tried for ten years to get a simple equality amendment for women into the Constitution for ten years, finally failing ratification in 1982. On average, women still make only three quarters of what men do in the US. (These numbers become dramatically more stratified when race is introduced into the calculations.) My point is, without running out ten pages of statistics that consistently demonstrate inequality of social power between men and women, the social reality of perceived difference and material inequality is reflected inaccurately by the liberal state’s legal assumption (in selective instances) of abstract sameness and equality. As in all forms of Jeffersonian liberalism, including libertarianism, it is ahistorical.

This is, in fact, a characteristic of the American liberal state since its inception. The US Constitution is written in such a way that it reflected existing conditions as natural, and largely described the systems of power in which the state was prohibited to intervene. Male power was assumed. White power was assumed. Propertied power was assumed. Every incursion against those power systems by the state itself was propelled not from within the state, but from without, by social movements.

MacKinnon calls this the neutral, or negative, state.

“Unlike the ways in which men systematically enslave, violate, dehumanize, and exterminate other men [as in Southwest Asia now, for example –SG], men’s forms of dominance over women have been accomplished socially as well as economically prior to the operation of law, without express state acts, often in intimate contexts, as everyday life.” (italics mine)

(Image by Valerie Patterson)

Since state power is erected upon pre-existing (“prior to the law”) social power, just as we can call the US liberal state a capitalist state, we can call it male. (We can also call it white nationalist, about which I will write more, further down.) The ‘neutral’ state professes neutrality, objectivity. It claims to be a neutral arbiter of abstract equality, and thus sidesteps the issue of concrete inequality – assuming it out of existence. The negative state is the liberal state that says what the state shall not do – no laws shall be made abridging this freedom or that freedom – which can then only meaningfully apply to those who already have the material means to exercise these freedoms meaningfully.

The liberal state’s legal episteme is neutral in its reflection of actual inequality, reflecting that concrete inequality back into society and renaming it abstract equality.

If the liberal state is prohibited from intervention in affairs declared private (the basis for tacit state support for domestic abuse until well into the 20th Century – “a man’s home is his castle,” etc.), and if the private, or civil sphere is the sphere in which male power is most directly exercised, then the state simply forecloses a political solution to that system of unequal power, and therein supports it. This is the contradiction in the liberal state and the liberal conception of law that allows white men to sue for “reverse discrimination,” and that equates corporate campaign spending during elections with “free speech.” Actually existing power inequality is accepted by the state as a background, as part of nature, in which it can not, will not, interfere.

Law in the liberal American state is also precedential, based on precedent. It explicitly reflects existing conditions, then naturalizes them. The institutionally same Supreme Court can render the Dred Scott decision in 1857, then turn around and render Brown v. Board of Education in 1954. In each case, the court reflected the social realities of shifting power, as they were at the moment. Civilian law in the United States is interpreted by precedent… in effect, by the status quo. And the interpretive motivation for the judiciary is not transcendent truth, but stability of the state.

The paradox for women has been that feminists “caught between giving more power to the state in each attempt to claim it for women [have left] unchecked power in the society to men,” because the liberal state resists intervention into social power structures, like gender, and reflects those same structures, pretending now that this is an exercise of juridical ‘objectivity,’ in precedent. Just as in other cases of power struggle, the shift created outside the law by social movements has preceded (the root word of precedent) the juridical reflection of these changes in law.

Abounding in metaphysical subtleties!

“Those who have freedoms like equality, liberty, privacy, and speech socially and economically keep them legally, free of government intrusion. No one who does not already have them socially or economically is granted them legally.” In fact, a demand for them legally will generate a reaction that the disempowered group is seeing “special rights,” the claim deployed against gay rights advocates.

“Philosophically, this posture is expressed in the repeated constitutional invocation of the superiority of ‘negative’ freedom – staying out, letting be – over positive legal affirmations. Negative liberty gives one the right to be ‘left to do what [he] is able to do or be, without interference from other persons.’ The state that pursues this value promotes freedom when it does not intervene in the status quo… For women, this has meant that civil society, the domain in which women are distinctively subordinated and deprived of power, has been placed beyond the reach of legal guarantees. Women are oppressed socially, prior to the law, without express state acts, often in intimate contexts. The negative state cannot address their situation in any but an equal society – the one in which it is needed least.” (MacKinnon)

“That’s some catch, that Catch-22.”