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Part of the problem is written into the Uniform Code of Military Justice (UCMJ). Right now, in the military, silence may in fact equal consent. According to Article 120, the “totality of the circumstances” must be considered when sexual assault is reported. Silence and lack of resistance equal consent, unless a victim’s silence or passivity can be attributed to intentional acts by the defendant.

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That is, a young service member who freezes because they are shocked at being groped or penetrated, or goes limp because they are afraid their drill instructor will flunk them out of basic training (though he hasn’t said so), can be construed as consenting to such unwanted contact.

Furthermore, even if a jury doesn’t buy that this passivity actually equals consent, the statute allows the defense to argue that they reasonably mistook the victim’s silence as consent.

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California ensures that such a mistake can never be construed as reasonable: “[l]ack of protest or resistance does not mean consent, nor does silence mean consent.” Period.

The military needs to jettison its “silence may sometimes represent consent” definition in favor of a clear affirmative consent standard like California’s. It also needs the California law’s reminder that “[i]t is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.”

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Such clarifications are critically needed in the military environment to counteract the often powerful dynamics of rank, loyalty and teamwork which contribute to an inherently coercive atmosphere; an atmosphere in which silence should never be a default for consent to sex.

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These changes (which need to be approved by Congress) will reverberate well beyond the courtroom. They will help change attitudes via education. The military actually uses the UCMJ’s statutory definition of consent —typically word for awkward word — to train and educate today’s young service members as to what is acceptable behavior regarding sex. The deeply disturbing prevalence of sexual assault on our military bases and college campuses demands that expectations regarding sexual behavior shouldn’t be left to popular music and the media.