Rape by Military Personnel
Historical Incidence.Relatively little is known about the actual historical incidence of rape by American military personnel. No systematic compilations exist of rape incidence prior to World War II. However, individual records of rape prosecutions dating back to the earliest years of the republic can be found. George Washington's notes for 22 July 1780 indicate that a Thomas Brown of the Seventh Pennsylvania Regiment was sentenced to death for rape. The few historians who have commented on the subject suggest that the rape incidence during the Civil War was relatively low. Rape by non‐Americans during World War I has been written about frequently, yet rape by U.S. personnel in that war has not been explored in any comprehensive way.
For World War II, comprehensive statistics of prosecutions of American military personnel are available for the European theater of operations. Those statistics indicate that rape was extensive. Indeed, rape of French women was sufficiently pervasive to cause Gen. Dwight D. Eisenhower's headquarters to issue a directive to U.S. Army commanders announcing the general's “grave concern,” and instructing that speedy and appropriate punishments be administered.
Court‐martial statistics are available also for the Korean War and the Vietnam War. From 31 May 1951 through 30 May 1953, twenty‐three U.S. Army personnel in Korea were convicted of rape, and nine of assault with intent to rape. In Vietnam, from 1 January 1965 to 31 January 1973, twenty army personnel and one air force man were convicted of rape, and fourteen army personnel were convicted of attempted rape or assault with intent to commit rape. In Vietnam (1970–73), one navy serviceman and thirteen Marine Corpsmen were convicted of rape. According to many reports, however, these conviction numbers in no way reflect the actual number of incidents.
During the Persian Gulf War, twenty‐four female American military personnel were subjected to rape, attempted rape, or sexual assault by American military men, according to official records.
Comparing Military and Civilian Rape Rates.To place military rape rates in context, it is valuable to compare them with civilian rates. Comparisons of the crime rates of civilian and military populations during peacetime periods in 1986–92 reveal that contemporary peacetime rates of rape by American military personnel are actually lower (controlling for age and gender) than civilian rates. However, the data also indicate that peacetime military rape rates are diminished far less from civilian rates than are military rates for other violent offenses. This “rape differential” is also reflected in the World War II data: U.S. Army rape rates in Europe climbed to several times the U.S. civilian rates for that period, while military rates for other violent crimes were roughly equivalent to civilian rates. Thus, in both contexts studied, a rape differential exists: the ratio of military rape rates to civilian rape rates is substantially larger than the ratio of military rates to civilian rates for other violent crimes.
Legal Provisions.Rape by military personnel has been criminalized and carried serious penalties, including capital punishment, throughout American history. Rape was specifically prohibited in the English army as early as 1385. The American Continental army observed the customary prohibition and applied severe penalties, including the death penalty, for committing rape.
From 1950 to 1992, rape was defined by the Uniform Code of Military Justice as “an act of sexual intercourse with a female not [the accused's] wife, by force and without her consent.” In 1992, that definition was amended to include rape of a male and rape within marriage. Current military rules of evidence include a rape shield provision that excludes from evidence most testimony regarding the sexual history of the alleged victim.
Despite the clear, long‐standing prohibition of rape in military codes, there is anecdotal evidence of some continuing failure to enforce those laws. Witnesses at Senate hearings in 1992 testified that such failures are common. Legislation instituting centralized recordkeeping and oversight of military sexual misconduct cases to ensure consistent enforcement has been introduced in Congress in 1993 and 1994, but none has been adopted to date.
In addition to American domestic law criminalizing rape by military personnel, multiple provisions of international law prohibit rape by military personnel. Rape is incontrovertibly a war crime. Both the fourth Geneva Convention and Protocols I and II to the Geneva Conventions explicitly prohibit rape, and there is clear movement toward interpreting the Geneva Conventions' grave breach provisions to cover rape. When committed on a mass and systematic basis, rape can constitute a crime against humanity. Rape also can, under certain conditions, constitute a part of the crime of genocide. In addition to prohibiting rape under international laws of war, provisions of international human rights law, such as the International Covenant on Civil and Political Rights, also proscribe rape by military personnel or others when their acts are attributable to the state.
Historically, rape has not been a focus of international war crimes prosecutions. Scant attention was paid to rape in the international prosecutions after World War II. Rape was not mentioned in the Nuremberg Charter and was not prosecuted as a war crime at the Nuremberg Trials. It received some but still rather limited treatment at the International Military Tribunal for the Far East. The International Criminal Tribunals for the former Yugoslavia and for Rwanda are currently beginning their work; there have been indications that these tribunals will prosecute rape vigorously.
[See also Culture, War, and the Military; Society and War.]
Susan Brownmiller , Against Our Will: Men, Women, and Rape, 1975.
Peter Karsten , Law, Soldiers, and Combat, 1977.
George C. Rable , Civil Wars: Women and the Crisis of Southern Nationalism, 1989.
Theodor Meron , Rape as a Crime Under International Humanitarian Law, American Journal of International Law, 87 (1993), pp. 424–28.
Christine Chinkin , Peace and Force in International Law, in Reconceiving Reality: Women and International Law, ed. Dorinda G. Dallmeyer, 1993.
Madeline Morris , By Force of Arms: Rape, War, and Military Culture, Duke Law Journal, 45, 1996, pp. 651–781.
Madeline H. Morris