The Historical Roots and Future Directions for Military Law and Policies on Rape and Sexual Assault

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Abstract

The time in which rape has been a crime tried in the military criminal justice system is remarkably short. For much of the nation’s history, military members accused of common law crimes were tried in civilian courts established under Article III of the Constitution. The exception was during periods when the nation was at war. A continuous jurisprudence of military rape law did not begin until the late 1980s. Since that time, an avalanche of sexual assault scandals, legislation, task forces, and commissions have driven the issue to the forefront of public interest. While change was glacially slow for decades, the last 10 years have brought about some of the most dramatic changes in military justice since the Uniform Code of Military Justice (UCMJ) was established in 1950—changes driven almost entirely by the sexual assault debate. Congressionally chartered advisory committees like the Defense Task Force on Sexual Assault in the Armed Forces, the Response Systems to Adult Sexual Assault Crimes Panel, and the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel have recommended many of the reforms to law and policy now in place regarding the military’s response to sexual assault allegations. Nonetheless, several key reforms are still waiting, including improved collection of sexual assault data and program performance metrics and a more precise definition in Department of Defense policy of what conduct constitutes sexual assault.

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