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| Prof. Rachel E. VanLandingham |
Long after Justice Brandeis made the point in
New State Ice Co. v. Liebmann, it is a commonplace to consider the 50 states as laboratories for legislative innovation. Comes now
this proposal from Prof.
Rachel E. VanLandingham (vice president of the National Institute of Military Justice (NIMJ), but writing only for herself) that the U.S. armed forces should consider adopting California's requirement for "affirmative, conscious and voluntary" consent in sexual assault cases. She explains:
Part of the problem is written into the Uniform Code of Military Justice (UCMJ). Right now, in the military, silence might 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.
Article 120 has been amended repeatedly. Should it be amended again? If so, should Congress follow California's lead in tightening up the law on consent?
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