For those who are weary of struggling to understand the complexities of military sexual assault law (Article 120 UCMJ) in its various iterations, I suggest you take a break to delve into the theoretical underpinnings of the feminist movement that led to the 2007 and 2012 versions of the law. Professor Aya Gruber the University of Colorado School of Law had brought us "A 'Neo-feminist' Assessment of Rape and Domestic Violence Law," 15 J. Gender Race & Just. 583 (Spring 2012). Her neo-feminist stance is that what was once an inherently liberal movement -- feminism -- somehow lost its essence when it chose to eradicate the sexualization of women through "prohibitory law."
Gruber sketches a brief history of feminism in relation to rape and domestic violence. At first, the movement saw the "key to women's empowerment in the sexual arena was ensuring that sex was consensual." This approach succeeded in removing from rape law the requirement of corroboration and resistance
requirements. But eliminating these "prosecution barriers" was only minimally helpful. Even with the barriers removed from rape statutes, reformers discovered social norms were essentially replacing them as unwritten requirements. This is a lesson we have been teaching here at TJAGLCS for the last two years : "cultural cognition" -- the non-legal social beliefs of the community -- cause the police, prosecutors and jurors to discount rape reports that are are missing physical resistance/injury or independent corroboration.
In reaction to the failure of society to shake these cultural beliefs (or rape myths), "dominance" feminists (who Gruber claims see the root of inequality as "a ubiquitous power struggle between men and women in all aspects of life) allied themselves with a criminal justice system that was authoritarian and excessively powerful in order to advande equality. This led to measures which, while improving the lot for victims of rape, also were overtly designed to assist the prosecution. (MRE 412, 413, 414 & 514 come to mind). The extreme version of these liberal/authoritarian reforms are affirmative consent statutes which make sex criminal in the absence of an "affirmative expression of consent." Gruber correctly sites New Jersey's rape statute for this proposition. New Jersey represents not a movement, however, but a unique outlier in rape law. No other state (to my knowledge) shares this definition of rape.
Gruber sees the historical feminist approach as misguided. Her "neo-feminist" critique claims that many of the criminal law reforms have actually dis-empowered women by removing their freedom of action. In the domestic violence arena, this is represented by mandatory arrest laws and mandatory prosecution policies that patronizingly ignore the wishes of the victim.
In the rape arena, Gruber asserts that the emphasis on the dangers to women in the world of sexual activity "threatens to stifle women's sexual agency and expression. . . ." By insisting that affirmative consent is necessary to sex, we run the risk that any woman who does not act within society's conditioned expectation of "chaste behavior" is somehow not worthy of protection. This reinforces society's existing prejudices concerning mode of dress, alcohol consumption and "loose" conduct.
[I have not commented on Gruber's other underlying message: that the criminal justice system is designed for the oppression of minority and poor citizens. Someone else can tackle that one.]
I disagree with much of Professor Gruber's historical analysis and many of her conclusions. But her uncommon approach to rape reform efforts requires us to think beyond some accepted assumptions about rape law that are rarely illuminated. It is not an easy read, but it is intellectually challenging and perhaps enlightening.