Rape MCM 45 (b)(1) – Rape in the Military

Elements of Rape

military-defense-lawyersTinker_AFB_Boeing_E-3_Sentry_090512-F-7550B-902Rape is causing another person to engage in a “sexual act”

  • by use of force
  • or by causing grievous bodily harm
  • or by using threats of or creating fear of death, grievous bodily harm or kidnapping
  • or by rendering another unconscious
  • or by administering an intoxicant or other drug

A “sexual act” is any contact between the penis and the vulva however slight; or the penetration of the genital opening of another by hand, finger or an object with the intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. MCM 45a(t)(1) Note that the first part of the definition of penetration excludes same gender conduct. The second part of the definition requires proof of specific intent.

Force” is compelling submission or overcoming resistance by use of a dangerous weapon or object, causing another to believe that one has such a weapon, or physical violence or restraint that causes the other to be unable to avoid or escape the sexual contact. MCM 45a(t)(5). Note that the latter part of the definition may fuse the concept of consent into the crime, although it is technically an affirmative defense.

 “Grievous bodily harm” is serious bodily harm like a broken bone. MCM 45a(t)(3)

“Threatening” or placing someone in fear means a communication or action sufficient to cause a reasonable fear that the victim or another will be subjected to the threatened act. MCM 45a(t)(6)