HER LIFE TO PROTECT VIRTUE NOT ONLY WOULD REPRESENT A MISPLACED SENSE OF
VALUES BUT WOULD ALSO UNJUSTLY RAISE AN INFERENCE AND AN EYEBROW
WHENEVER A RAPE VICTIM LIVED TO TELL THE TALE."
In United States v. Webster, 40 MJ 384 (CMA 1994), the Court of Military Appeals stated "in United
States v. Bonano-Torres, 31 MJ 175, 179 (CMA 1990), this court expressly declined to adopt 'an
inflexible rule establishing resistance as a necessary element of' rape... In United States v. Watson, 31
MJ 49 (CMA 1990), this court similarly held that proof of a 'manifestation of lack of consent' does not
require 'some positive' action or response by the victim... (The Court) rejected a notion that the rape
victim had 'an independent, affirmative duty' to resist an attacker in order to prove the element of lack of
consent." The Court now looks at the "totality of the Circumstances" to determine consent or lack
thereof and the appropriate level or measure of resistance by the victim.
QUESTION: UNDER THE UCMJ, CAN A WOMAN RAPE A MAN?
ANSWER: PRIOR TO OCTOBER 1992 A WOMAN COULD ONLY BE CHARGED WITH RAPE
UNDER THE THEORY OF PRINCIPALS AS AN AIDER AND ABETTOR. THE PERPETRATOR
HAD TO BE A MAN AND THE VICTIM A WOMAN, NOT HIS WIFE. IF ANOTHER WOMAN
ENTICED THE VICTIM TO A REMOTE LOCATION TO BE RAPED BY A MAN, HELD DOWN
THE VICTIM WHILE THE MAN RAPED HER, OR STOOD WATCH FOR THE AUTHORITIES
DURING THE RAPE, THAT WOMAN COULD BE CONVICTED OF RAPE AS AN AIDER AND
ABETTOR. AFTER OCTOBER 1992, THAT WOMAN COULD STILL BE CONVICTED OF RAPE
ON THE PRINCIPAL THEORY. HOWEVER, A CHANGE IN ARTICLE 120, UCMJ, MADE RAPE
GENDER NEUTRAL. SEXUAL INTERCOURSE IS STILL REQUIRED. THEREFORE, THE
PERPETRATOR CAN BE MALE OR FEMALE AND THE VICTIM MUST STILL BE OF THE
OPPOSITE SEX. THE "HOMOSEXUAL RAPE" IS CHARGED AS FORCIBLE SODOMY.
QUESTION: UNDER THE UCMJ, CAN A HUSBAND RAPE HIS WIFE?
ANSWER: AFTER THE CONGRESSIONAL CHANGE TO ARTICLE 120, UCMJ, IT IS LEGALLY
POSSIBLE FOR A HUSBAND TO RAPE HIS WIFE. IF HE HAS SEXUAL INTERCOURSE WITH
HER BY FORCE AND WITHOUT HER CONSENT, HE CAN BE CONVICTED OF RAPING HER.
LIKEWISE, IF THE WIFE DOES THE SAME TO HER HUSBAND, SHE CAN BE CONVICTED OF
RAPE.
B. Carnal Knowledge (Article 120(b), UCMJ). Carnal knowledge is having sexual intercourse
with a child under the age of 16, who is not the accused's lawful spouse, under circumstances not
amounting to rape. It is commonly referred to as "statutory rape". As a matter of law, a child under the
age of 16 is deemed incapable of giving valid consent, so consent is not an issue. As in rape, any
penetration, however slight, is sufficient to complete the offense. In 1996, Congress amended the
UCMJ to make carnal knowledge gender neutral.
Prior to 1996, there was no defense to the crime of carnal knowledge; it was a strict liability
crime. It was the fact of the sexual intercourse with a child and not the accused knowledge of the child's
age which fixed criminal liability. Consequently, the accused could be prosecuted for having
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