“Turning Back the Clock on Rape”

In recent decades, women’s advocates and human rights activists have made huge progress on the issues of rape and sexual assault : in the United States and globally. Both crimes are now more powerfully defined in state and federal laws. In international law, where rape and sexual assault have long been classified as torture and war crimes, the world has begun to accept the importance of enforcement. In 1998, a tribunal convicted a paramilitary chief for watching one of his men rape a woman in Serbia. A year ago, the world rose up in outrage when United Nations peacekeepers raped women in Congo. [See also].

You’d think this was a settled issue. But it’s been opened up again in the bill on jailing, interrogating and trying terror suspects that President Bush is trying to ram through Congress in a pre-election rush. Both the White House and Senate versions contain provisions on rape and sexual assault that turn back the clock alarmingly. They are among the many flaws that must be fixed before Congress can responsibly pass this legislation.

Rape, sexual assault and sexual abuse are mentioned twice in the bill : once as crimes that could be prosecuted before military tribunals if committed by an”illegal enemy combatant,”and once as”grave breaches”of the Geneva Conventions that could be prosecuted as war crimes if committed by an American against a detainee. But in each case, the wording creates new and disturbing loopholes.

In the bill, rape is narrowly defined as forced or coerced genital or anal penetration. It utterly leaves out other acts, as well as the notion that sex without consent is also rape, as defined by numerous state laws and federal law. That is the more likely case in a prison, where a helpless inmate would be unlikely to resist the sexual overtures of a guard or interrogator.

The section on sexual abuse requires that the act include physical contact. Thus it might not include ordering a terrified female prisoner to strip and dance, which happened in Rwanda, or compelling a male prisoner to strip and wear women’s underwear on his head, or photographing naked prisoners piled together, both of which happened at Abu Ghraib.

Rhonda Copelon, a professor of law at the City University of New York who was an author of the international law on rape as a war crime, says the bill also could make it impossible to prosecute rape or sexual assault as torture, because the definition of torture in the legislation requires proof of specific intent to commit the crime. Motive is very hard to prove in cases of rape or sexual assault.

Experts on sexual violence fear that the intent is to absolve American soldiers and their commanders from prosecution for deeds that have occurred since Sept. 11. Ms. Copelon also points out that the United States has been trying for years to write a specific intent requirement into international law on torture. The co-authors of the bill, Senators John McCain and Lindsey Graham, did not respond to questions about the section.

But it does not really matter. This language simply needs to be changed, and Senators McCain and Graham should do it. If not, Democrats should insist on this among many other changes they should be demanding before agreeing to a vote on the prison measure.

The House versions of the bill, “The Military Commissions Act of 2006,” can be accessed here or here. The Senate version is here. A NYT editorial concerning the bill as a whole appears today, and is entitled, “Rushing Off A Cliff.” It notes in pertinent part:

The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

Marty Lederman has more about the bill generally at Balkinization, as does Steve Vladeck at the National Security Advisors blog, and Echidne of the Snakes.
–Ann Bartow