Rationalizing Rape: How Military Appellate Courts Get to Yes

This study examines how military appellate courts rationalize overturning sexual assault convictions through qualitative analysis of opinions finding factual insufficiency. Drawing from cases between 2017-2020, concerning patterns are identified in judicial reasoning that reflect persistent rape myth acceptance despite decades of statutory reform. The analysis reveals that courts frequently question victim credibility based on delayed reporting, counterintuitive victim behavior, and continued contact with perpetrators - factors that trauma research has shown to be common among sexual assault survivors. Of particular concern is courts' treatment of incapacitation cases, where judges often acknowledge significant victim impairment yet find ways to question consent capacity. The findings suggest that recent statutory changes limiting appellate courts' factual sufficiency review authority may be insufficient to address underlying attitudinal barriers to fair adjudication of sexual assault cases. We propose reforms to judicial selection, education, and oversight processes, while acknowledging significant practical and legal challenges to implementation. The study contributes to growing literature on institutional responses to sexual assault by illuminating how rape myths manifest in appellate reasoning. These findings have important implications for military justice reform and broader understanding of how gender bias influences judicial decision-making. Future research comparing military and civilian appellate approaches could provide valuable insights for both systems.