Sex and Consent in the Military

The U.S. military has been rocked by sexual assault and harassment scandals going back to Tailhook in the early 1990s. As a result, Congress has attempted to make the military a safer place for all by reforming military criminal law in piecemeal fashion while mandating a raft of prevention programs. The most significant recent criminal procedural reform—removing commanders’ prosecutorial authority regarding sexual assault and a small collection of other crimes—followed the #MeToo movement and shocking murder of Army soldier Vanessa Guillen.

Perhaps the most radical military reform measure in this arena is one that has flown largely under the radar…

Until now.

Like many jurisdictions around the country, the military has struggled with how to fairly define and prove consent to sex, and the lack thereof. In essence: “No” means no, but what does “yes” look like?

It’s been 10 years since I urged Congress to change military law to require affirmative consent to sex. Silence and passivity—particularly in circumstances of differences in military rank—should never be permitted to be construed as authorization to invade another person’s body. It was seemingly obvious that the military, with its obedience to orders-driven hierarchy, urgently needed to reverse the assumption that a woman walks around consenting to sex—the archaic default position of American rape law. (As summarized by the American Bar Association’s Commission on Domestic and Sexual Violence, “A history of sexual violence, and of the status of women as the sexual property of men, still informs the law governing sexual assault.”) Rather, the military needed updated laws and policies to reflect the reality that no one walks around automatically consenting to anything regarding their bodies.

It took a few years, but Congress finally flipped the script through statutory change buried in the voluminous 2017 National Defense Authorization Act (NDAA) (a change that went almost completely unremarked upon at the time). In short, because of this reform, the military, like numerous other criminal jurisdictions, now requires affirmative consent to sex. Related, the military also criminalizes purely nonconsensual sex as sexual assault—without rape’s historic separate requirement of proof of force (or threat of force) that was for centuries required in addition to lack of consent. 

As a result of the 2017 NDAA legislative reform, military consent to sex is now statutorily defined as “a freely given agreement to the conduct at issue by a competent person” determined by the totality of the circumstances. While “no” means no—the law states that “an expression of lack of consent through words or conduct means there is no consent,” military law also clarifies that (unlike the previous legal standard), “[l]ack of verbal or physical resistance does not constitute consent.” To put it bluntly, this new affirmative component of consent to sex in the military means that the lack of a “no” by itself can no longer equal “yes.” As the military’s highest appellate court has since concluded, “[t]he burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.”

This relatively new standard of affirmative consent, after more than five years on the books, played the leading role in a much publicized criminal prosecution of a high-ranking senior Air Force officer earlier this summer. The Air Force’s June court-martial of Maj. Gen. Phillip Stewart for two counts of sexual assault (in addition to several military offenses) was the highest-profile military prosecution ever of nonconsensual sex. It eclipsed the Air Force’s 2022 court-martial of another Air Force general, when then-Maj. Gen. William T. Cooley was convicted of forcibly kissing his civilian sister-in-law (the crime of “abusive sexual contact” under military criminal law).

In contrast to Cooley’s prosecution, the military charged Stewart with committing nonconsensual penetrative sex on a subordinate military officer after drinking alcohol with her. Stewart was acquitted of sexual assault and convicted of minor military crimes—the latter of which revealed disturbing misconduct given his rank and responsibility. Despite the sexual assault acquittal, Stewart’s court-martial is instructive for rape law and beyond, due to its application of the new affirmative consent standard. His prosecution highlights some of the challenges the military, and perhaps to some extent the rest of America, wrestles with in this highly charged arena.

In particular, June’s court-martial of a high-ranking Air Force leader exposes the vast potential for abuse of power that can facilitate military sexual assault. This dynamic stems from the military’s strict orders-driven hierarchy, the role of rank within it, and its deep gender disparities. Stewart’s case highlights the necessity of prosecuting all credible allegations of such abuse of power, given the system’s structural vulnerabilities. During her testimony in the Stewart prosecution, the victim specifically testified that she “felt trapped” by her superior officer. It cannot be overemphasized that rank can make it inordinately difficult to say “no” to one’s military boss, particularly as a woman in the “man’s world” that is, regrettably in 2024, still the Air Force officer ranks. The toxic potential that results from rank, hierarchy, and a male-dominated competitive culture is a powerful reason military criminal law now requires affirmative consent and not simply an absence of “no,” as explained further below.

At trial, Stewart claimed the sex acts in question were consensual, and therefore the case exclusively concerned whether he obtained affirmative consent. Given that sexual assault is not a strict liability crime (rightly so), the government had to prove beyond a reasonable doubt that Stewart was at least negligent regarding the presence of agreement to sex. In other words, prosecutors had to prove that he knew or should have known that his subordinate never affirmatively consented to sex. Stewart claimed that “his alleged victim never said ‘no’ to his advances and didn’t take any action that suggested to him she wasn’t okay with having sex with him.” Given that the reformed law requires affirmative consent, not affirmative nonconsent, the Air Force was well within the realm of reasonable prosecutorial discretion to send this case to trial. It was right to let a jury of military officers determine whether any of the victim’s actions could have reasonably indicated (even if that was not her intent) that she consented to having sex, versus the senior-ranking Stewart merely reading the victim’s lack of verbal or physical “no” as a “yes.”

To fully understand how lack of affirmative consent can lead to a criminal conviction, one must also appreciate that military criminal law allows that Stewart could have been mistaken about the victim’s lack of consent, as long as jurors find such a mistake honest and reasonable (that is, reasonable for a sober person). This seems to have been what Stewart’s jury of eight three-star generals concluded after approximately eight hours of deliberation and testimony review, based on evidence revealing that Stewart told the victim’s husband during a pretext phone call that it was his “impression” that the sex was consensual, “otherwise we wouldn’t have done it.” During cross-examination, the defense counsel elicited that the victim did not say the word “no” and highlighted the victim’s physical conduct that the jury likely construed as reasonably allowing Stewart to believe that he had obtained her consent. (For example, according to the defense, the victim seemingly helped Stewart undress her, as “she ‘probably’ lifted her arms when he took her clothes off.”

Yet the victim in the Stewart court-martial stressed that she was “in shock” and that the encounter “didn’t feel like a choice.” She also told the jury that “I never wanted this. I never wanted this.” 

It may seem odd that Stewart’s accuser, a career Air Force officer and pilot trained to lead, didn’t loudly and firmly say “no” to her superior officer trying to have sex with her. I admit, with some shame, that my initial gut reaction upon reading accounts of this prosecution was to wonder why the victim didn’t immediately tell Stewart to go to hell and then leave the room. Then I quickly considered that, in addition to the effects of alcohol, scientific studies have long demonstrated the varied ways people react in conditions of surprise and stress to include passivity—this is also described as “frozen fright.”

And, quite pertinent here, context matters. The ingrained solicitude to rank, coupled with obedience to orders that is the backbone of military life, that is indoctrinated in all military members can make it quite difficult to shout “no” to a senior officer—particularly to generals with near plenary power over subordinates’ careers. This solicitous acquiescence to higher rank is perhaps even more ingrained in women coming through the Air Force officer ranks in the past 30 years, as this victim and I both did: women who had to make ourselves small, who had to put up with an extraordinary amount of bias and harassment, who had to work incredibly hard to fit in and go along with more than most of our male colleagues because of numerous gender-based barriers to our service in the male fighter-pilot culture of the Air Force officer ranks.

Regarding American criminal law, both in the military and outside it: It can be difficult to understand, particularly in nonforcible sexual assault cases, that two things can be true at the same time. There can be a victim who had sex perpetrated upon them without their consent and an accused who is innocent because they were reasonably mistaken about having the victim’s permission to engage in sex. In other words, while there is no crime, there still is a victim. It seems quite likely, to anyone who followed the Stewart case and the testimony closely, that this is the situation the major general created. The victim never, it seems from the testimony, consented to having sex with her boss, as she repeatedly stated under oath. She was and is a pilot, an honorable career Air Force officer who could herself be criminally prosecuted for false official statements; she had, reasonably speaking, nothing to gain by a false accusation, and indeed much to lose. Yet at the same time, at least from the jury’s point of view, Maj. Gen. Stewart reasonably construed that she did indeed consent, mistaken as that construction seemingly was—a “reasonable” and honest mistake per the the jury’s interpretation of the accuser’s conduct (regarding which her lack of a verbal or physical “no” naturally spoke volumes, despite the law’s caveats that such omission does not equal consent).

While this analysis comes straight from my criminal law professor/scholar briefcase, there’s more to this story. Stewart’s acquittal does not seem to be the right call in this case since it’s quite difficult to characterize his “mistake” about the victim’s consent as reasonable—he was a married general officer drinking alcohol with and sexually propositioning his direct military subordinate. His defense mightily struggled to explain why he thought he had consent to have sex with his subordinate, despite never asking for such consent; victim-shaming was evident as the defense maligned the victim by calling her a hard-drinking “party girl.”

It is not too much to ask that juries, through their interpretation of reasonableness, demand that Stewart and others in such structurally exploitative situations secure more objective indicia of consent than wishful thinking and lack of an explicit “no.” Shouldn’t the general have asked his junior officer outright whether she wanted to sleep with him? That seems reasonable given the stark power differential present between the two. The affirmative consent standard applied in this context demands something more of the general officer than that his military subordinate seemed to be going with the flow by not protesting her superior officer’s sexual advances.

There is a caveat to this reasoning, however: Criminal law appropriately requires that the jury be convinced beyond a reasonable doubt that Stewart’s mistake (and other defendants’ mistakes in similar cases) was unreasonable given the circumstances. This is necessarily a high and valuable hurdle to clear, and it is one that favors acquitting the factually guilty in order to protect the innocent. Yet the discerning public should recognize that while reasonableness is an integral and vital concept in criminal law, it notoriously also is an avenue for overt and cognitive biases, while allowing for lack of understanding of how victims respond in sexual assault situations. Applied here, for example: To a juror unversed in how victims may respond to sex crimes, and lacking full appreciation of the power of rank plus gender disparities, it may seem unreasonable for a female victim not to protest sexual advances by a male superior officer—hence making, for the juror, the accused assaulter’s mistake as to consent “reasonable.”

What’s more, the Air Force’s prosecutorial skill should be questioned, given the relative lack of Air Force litigation experience compared to lawyers at the Department of Justice and most local prosecutors (courts-martial have been in steep decline for years). So in addition to the appropriately heavy burden of proof making convictions challenging, the Air Force’s own recent track record, in the few sexual assault cases it has handled recently, heavily stacked the odds against Stewart’s conviction—and emphasizes the relative lack of prosecutorial expertise it has in these types of cases. In fiscal year 2023, the Air Force received 957 unrestricted reports of sexual assault; of those, it prosecuted 61 and secured only 21 convictions. Bottom line: These are tough cases requiring depths of prosecutorial experience the Air Force does not possess; how could it, given the relative paucity of cases it tries? Further, rather than superficial conclusions that too many weak cases are going to trial for political reasons (in reality, only 0.06 percent of these cases go to trial), perhaps the challenge to effectively try and prosecute these cases lies with deficient prosecutorial expertise in addition to flawed conceptions of reasonableness by the members of the armed forces who serve on military juries.

So while most of the interested public will likely focus on the fact that Maj. Gen. Stewart was found not guilty of sexually assaulting his subordinate officer, the fact that he was prosecuted is itself hugely significant as it reflects the sea change in military law regarding affirmative consent. Through this court-martial, in which an officer’s claims against her general officer boss were taken seriously, the Air Force seemingly demonstrated that it understands and supports the law’s affirmative consent standard and those it is designed to protect.

It’s about time to understand that the lack of a “no” does not mean “yes.” It’s also long past time that senior and junior leaders of U.S. Armed Forces behave in the professional, noncriminal manner that those they lead, and the nation, deserve—and that those who do not are held to account.