QUESTION: WHAT IF THE VICTIM IS UNCONSCIOUS OR LACKS THE PHYSICAL OR
MENTAL FACILITIES TO RESIST?
ANSWER: PHYSICAL RESISTANCE WILL NOT BE REQUIRED TO SHOW LACK OF CONSENT
WHERE THE VICTIM IS INCOMPETENT, UNCONSCIOUS, OR SLEEPING. UNITED STATES
V. ROBERTSON, 33 CMR 828 (AFBR 1963). IN SUCH CASES, THE ACT IS RAPE BECAUSE
THE VICTIM WAS INCAPABLE OF GIVING CONSENT. SIMILARLY, THE ACQUIESCENCE
OF A CHILD OF TENDER YEARS WILL NOT CONSTITUTE CONSENT AS THE CHILD IS
INCAPABLE OF GIVING VALID CONSENT. UNITED STATES V. HUFF, 4 MJ 816 (ACMR
1978). PROOF OF RAPE OF A DAUGHTER BY HER FATHER MAY NOT REQUIRE PHYSICAL
RESISTANCE IF INTERCOURSE IS ACCOMPLISHED AS THE RESULT OF LONG,
CONTINUED PARENTAL DURESS. UNITED STATES V. DEJONCE, 16 MJ 974 (AFCMR 1983)
AND US V. PALMER, 33 MJ 7 (CMA 1991).
The Court of Military Appeals upheld a rape conviction applying a similar concept to the
issue of force and without consent. In US vs. Clark, 35 MJ 432 (C.M.A. 1992), the accused, a Sergeant
First Class mess sergeant, was in charge of the victim, a newly assigned female private who had just
arrived at the mess hall from AIT. While on duty, he ordered her to accompany him to a storage shed
behind the mess hall to get some supplies. Once in the shed, the accused closed the door and positioned
himself between the private and the door. He approached her asking for sex. She backed up to the wall
while saying "no" to his request. Thereafter, he had sexual intercourse with her over her verbal protests.
The Court gave great weight to the accused's senior NCO status and the victim's status as his subordinate
and a junior soldier right out of AIT in holding the victim had reasonably resisted the accused's attack.
Therefore, the Court found the sexual intercourse was by force and without the victim's consent. His
rape conviction was upheld. You should note that not all cases involving differences in rank between
the accused and the victim will automatically establish reasonable resistance. But this is one factor the
courts will analyze.
If the victim is in possession of mental and physical faculties and fails to make lack of
consent reasonably manifest by taking such measures of resistance as are called for by the
circumstances, the inference may be drawn that the victim did consent.
QUESTION: IS CONSENT INFERRED WHERE THE VICTIM FAILS TO RESIST BECAUSE OF
THE THREAT OF PHYSICAL HARM?
ANSWER: CONSENT CANNOT BE INFERRED IN SITUATIONS WHERE RESISTANCE WOULD
HAVE BEEN FUTILE OR WHERE RESISTANCE IS OVERCOME BY THREATS OF DEATH OR
GREAT BODILY HARM. PART IV, MCM 1984, PARA 45(c) (1) (b). ALL THE SURROUNDING
CIRCUMSTANCES MUST BE CONSIDERED IN DETERMINING WHETHER A VICTIM GAVE
CONSENT, OR FAILED OR STOPPED RESISTING ONLY BECAUSE THE VICTIM
REASONABLY FEARED DEATH OR THE INFLICTION OF GRIEVOUS BODILY HARM.
CONSTRUCTIVE FORCE AND IMPLIED THREATS SUFFICIENT FOR A FINDING OF RAPE
CAN EXIST WHERE THE VICTIM IS OUTNUMBERED BY ATTACKERS, THE VICTIM
NOTICES THAT THE ATTACKERS HAVE READY ACCESS TO A WEAPON, AND THE
ATTACK TAKES PLACE IN A DESOLATE LOCATION. UNITED STATES V. LEWIS, 6 MJ 581
(ACMR 1978). IN SUCH A SITUATION, LACK OF PHYSICAL RESISTANCE MAY BE
JUSTIFIED BECAUSE "TO DEMAND THAT A VICTIM SACRIFICE HIS OR