Why US military prosecutes alleged rapes of women in UK as ‘sexual assaults’

American service personnel accused of rape on British soil are being charged with lesser offences by their military courts, a discrepancy that experts say is deepening the traumatic impact on survivors long after verdicts are passed.

There are more than ۱۲,۰۰۰ personnel stationed in US military bases across the UK, most of them in England. Although UK law enforcement has primary jurisdiction over crimes that occur when personnel are off duty, local police often choose to cede authority to the American military.

When that happens, British victims are thrust into an unfamiliar world, where their alleged attackers are tried at courts martial, often by a panel of American military personnel stationed at the same base.

Victims of sexual attacks by military personnel that would meet a common definition of rape are also finding that their attackers are instead being prosecuted for lesser offences, which carry more lenient sentences.

Under the set of laws that govern US forces, known as the Uniform Code of Military Justice (UCMJ), the crime of rape carries a narrower definition to that adopted by the British courts, meaning many cases are charged instead as sexual assault.

British law defines rape as when someone puts their penis in another person’s vagina, anus or mouth without their consent and carries a maximum life sentence. Whether or not a victim was intoxicated is not relevant; the law centres on whether the alleged victim consented to the sexual act.

In contrast, under article ۱۲۰ of the UCMJ, a rape charge requires the prosecution to prove that the defendant, without consent, used force or administered an intoxicant. In cases where the victim was drinking alcohol voluntarily, or is not proven to have been overwhelmed by force, the case is charged as sexual assault, with a maximum penalty of ۲۰ years.

“It’s concerning if the occupation of the accused pulls a survivor into a justice system that she doesn’t know very much about, or understand, and isn’t one that she feels she has got a voice in,” said Kelly Johnson, a senior criminology lecturer at the University of Glasgow whose research examines policing responses to sexual violence.

“A process might say it’s complying with its own formal rules, and still be experienced by survivors as alienating, degrading, and fundamentally unfair.”

In the case of Capt Jacob Wulfson, an American fighter pilot, prosecutors accused him of drugging and strangling Sarah Steele, a British academic, during a date in his apartment in December ۲۰۲۳, before penetrating her vagina with his penis without her consent.

The charge for the non-consensual penetration was sexual assault and “aggravated sexual contact” – a crime that does not even appear in UK statutes.

An all-male panel of airmen found Wulfson not guilty of the sexual assault charge, but guilty of strangulation. They sentenced him to be confined to a corrections facility for six months.

Steele said: “Words have power. Legal terminology isn’t just a technical exercise, it shapes how victims are understood. I respect that the law uses precise definitions, but the language carried a profound emotional weight for me.”

She recalled “having to explain what the legal label meant and what it didn’t mean. Having to repeatedly explain that distinction has been exhausting and, frankly, retraumatising.”

In another case, Tyrion Davis, an American airman, was tried in a court martial in June ۲۰۲۲ after two British women, including his wife, accused him of rape. The official charge sheet said that he was convicted on one charge of sexual assault – described as penetrating the victim’s vagina with his penis without consent – but acquitted of ۱۰ further counts of sexual assault and abusive sexual contact, and two counts of assault.

Experts working with survivors of sexual violence say that a perception that the crime on the charge sheet reflects their lived experience can be integral to how a victim is able to process their experience.

Katrin Hohl, a professor of criminology and criminal justice at the University of London, said: “The way other people respond to what happened to you, the way other people label it and frame it and see it has profound consequences for your ability to move forward. If the criminal justice system treats you in a way that denies you validation, it doesn’t just not help you recover, it actually adds further trauma.”

An earlier version of the UCMJ’s article ۱۲۰ defined crimes of sexual violence more loosely, but a new definition adopted in ۲۰۰۷, and refined several times since then, instituted the narrower definition of rape.

Critics of article ۱۲۰ say it fails victims because it was not developed in consultation with victims’ rights groups and individuals specialising in the field of sexual assault.

“I think the intention came from a good place,” said Don Christensen, who served as chief prosecutor for the US air force between ۲۰۱۰ and ۲۰۱۴. “They modelled some of these changes on some state laws, but they didn’t really, to my understanding, talk to many of us who were prosecuting cases to ask us what the problems were.”

Rachel VanLandingham, a law professor and former US air force judge advocate involved in efforts to reform military law, said the broader problem with prosecuting sexual offences under the UCMJ was a structural one.

“They pick the charges and then they get to pick the jury members, which is completely structurally unfair, but the system was never designed to be fair. It was designed to be a commander’s tool for strict discipline,” she said.

For victims, the consequences of having their experiences funnelled through such an opaque and militarised process can be devastating. “When victims don’t feel like they’re taken seriously, they’re not treated with respect and dignity, they’re not heard, that causes retraumatisation or what’s known as a secondary victimisation,” said Johnson, of the University of Glasgow. “Some victims say this is more profoundly damaging and harmful than the initial experience.”