“I find that [the] appellant reasonably interpreted the victim’s silence, lack of physical resistance, and lack of positive verbal or physical response as consent, given the surrounding circumstances.”

That was the dissenting view written by one senior Army judge in a Feb. 23, 2022 memorandum opinion from the United States Court of Criminal Appeals. A sexual assault conviction could have been overturned because an Army judge decided that the victim’s complete silence and lack of response could reasonably be interpreted as consent.

In United States v. Private E1 A.S. Cruz the undisputed facts of the case describe an incident in which two soldiers, flying from their Military Entrance Processing Station to Basic Combat Training, sit next to each other on their flight. During this flight, the male soldier digitally penetrated the victim, which was the basis for the victim reporting a sexual assault when arriving at the BCT location. He was eventually convicted at a general court-martial of sexual assault in violation of Article 120 and sentenced to a dishonorable discharge and 22 months confinement.

While the case was not overturned on appeal by the majority of the three-judge panel, one senior judge’s dissenting opinion in this appeal case shows how silence is still being interpreted as consent in Army culture.

It is no secret that the Army has struggled with sexual harassment and sexual assault cases in recent years. The problems have culminated in multiple instances of congressional intervention. UCMJ Article 120, which covers sexual assault, saw updates in 2007, 2012, 2016 and 2019, while sexual harassment became its own UCMJ offense under Article 134 in 2022.

While this may be considered progress, it does not matter how much we change the rules on paper unless we also work to eliminate cultural issues within the Army. Those Army leaders who can not change through increased education on this topic should be removed.

The U.S. Army Pacific Sexual Harassment/Assault Response and Prevention team hosted a virtual forum entitled, “Teal Talk,” April 29 at Richardson Theater, Fort Shafter, Hawaii. The forum featured guest speaker Heath Phillips, a U.S. Navy Veteran and a survivor of sexual assaults in the military. (U.S. Army photo by Sgt. 1st Class Monik Phan)

In a recent article related to moderating digital spaces for Army members, a female moderator of the /r/Army subreddit explained how even on the anonymous forum, a lot of women are afraid to disclose their own experiences with the the Army’s Sexual Harassment/Assault Response and Prevention program, because of the reactions from men.

“It’s not something that can be moderated very well without engaging in full-on censorship, because that outlook is ingrained in military culture,” she explained.

In reading this recent appellate court opinion, I was reminded of her comment about how ingrained the negative attitude towards SHARP is in the Army as an institution. Army Regulation 600-20 covering Command Policy uses the Manual for Courts Martial definition of consent where it relates to sexual assault:

“As used in the context of sexual assault, consent is a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent.”

During the Army’s Sexual Assault Awareness and Prevention Month, the service further elaborated on the apparently still confounding question for troops, “What is NOT Consent?”

“Lack of verbal or physical resistance (or submission resulting from the use of force, threat of force, or placing another person in fear) does not constitute consent.”

Yet, the definitions of consent and what does not constitute consent appear to be interpreted differently by at least one judge presiding over decisions of military justice. In this incident, the victim talked about how she tried to “squirm” away, how she felt helpless and how she simply wanted to “get it over with and move on.” Every victim reacts in their own way when being assaulted and freezing in fear comes as no surprise.

In his written memorandum, the senior judge expressed his belief that there was no way the appellant could have penetrated the victim digitally without her consent because of the angles at which they were sitting, and that this act would have required her “active cooperation.”

The judge noted other factors that they said contributed to the reasonable belief that consent had been given, including that the two soldiers had followed each other on social media and that earlier in the day, the victim had called her attacker “handsome.” Since the assault occurred in a “public place,” the Judge also believed that the victim’s lack of response could have been interpreted as consent, because there were other passengers and flight attendants in the area who could have been alerted to the sexual acts.

If this original trial had been in front of this dissenting senior judge, the offender in this case could have walked free. We would have told a soldier who was sexually assaulted on her first day in the Army that her silence was considered consent. The victim reported this assault after sitting through her first SHARP briefing upon arrival at BCT. These programs and changes can have an impact on the force, but only if leaders buy in. While it is up to each of us to work on these cultural flaws daily, the Army must act to educate, inform or replace senior leaders who would hold us back from making progress.

To whoever in the Army still needs to hear it: silence is not consent.

Kinmuan is the pseudonym for an Army veteran-turned contractor who has been a moderator of the /r/Army community on Reddit for more than five years. He is a prior service military intelligence systems maintainer/integrator (33W/35T). He now works as a contractor in the defense industry and regularly advocates on topics related to soldier well being.

Editor’s note: This is an Op-Ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman, haltman@militarytimes.com.

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