The United States armed forces have a sexual assault problem. As in: How does a service member avoid sexual assault charges? Fortunately, Military Times' legal advice columnist has you covered: If you can claim you got mixed signals, you can beat the rap.
To be clear, that columnist—attorney and war veteran Matthew B. Tully—is just the messenger in his Wednesday column, "Ask the Lawyer: 'Mixed signals' may be defense against sex charge." Tully answers a direct question with a recent precedent from military law. It's just that the precedent is pretty disturbing.
First, the question:
Q. My partner was sending mixed signals and I thought our sexual contact was consensual. Now I'm facing a sex assault charge. What can I do?
Besides getting the National Review on your side? Besides searching deep inside your soul for why, when you recognized that the "signals" were "mixed," you drove on like a lumbering semitrailer through a yellow light? Fine. Tully's got an answer for you:
A. Sex involves a range of spoken and unspoken messages. People can express their interest in having sex verbally, through their actions, or both. Sometimes words may contradict actions.
When a man or woman sends mixed messages before or during sexual activity — and later accuses the other party of sexual assault in violation of Article 120 of the Uniform Code of Military Justice — the accused may be able to raise the issue of mistake-of-fact.
Tully makes clear that hey, you know what, just because she didn't kick and scratch and scream, that doesn't mean she consented to sex according to the UCMJ, the military's legal ur-text. But... thanks to U.S. v. Michael C. DiPaola, a 2008 case heard by the services' highest federal court, the standard for an "I got mixed signals" defense is shockingly low:
DiPaola was a Navy culinary specialist third class who was convicted of indecent assault, which was then an offense under Article 134. He had been involved in an on-again, off-again relationship with a female petty officer. One night, he visited her in her barracks and repeatedly said he wanted to have sex with her, and she repeatedly responded "no."
However, they later began kissing and moved to her bed, where she let him remove her shirt. DiPaola later pinned the petty officer down on the bed and again pressed her for sex, which she continued to refuse, and he later left her room.
"The conduct and conversations of the parties during the encounter, as informed by the 'mixed message' defense theme, provide 'some evidence' that could support an honest (subjective) and reasonable (objective) belief as to consent to some or all of the alleged acts," the [court] ruled.
The military's code of justice can be said to have some advantages over civilian laws, but this is not one of them.
Could there be reasonable circumstances in which a person doesn't unequivocally say "no" to sexual contact, but cooperates under duress? In the real world, of course, especially if the person is a woman and is intimidated or cowed into acquiescence. In the military courts, no, apparently.
Can we reasonably assume that if a woman refused to have sex when cajoled, perhaps she relented to lesser contact under duress? Not in the military, not after DiPaola, apparently.
Can we even get to a point where the standard is whether a sexual partner said "yes," rather than whether they said "no" clearly enough? Not in the military. But to be fair, the likelihood of that ever happening in civilian courts is pretty low, too.
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