(concurring in part, dissenting in part).
I concur with Judge Edwards’ opinion except for the factual conclusion concerning rape and the action with respect to the sentence. As pointed out by Judge Edwards, our responsibilities under Article 66, UCMJ, require each judge to be convinced beyond a reasonable doubt of guilt before a conviction may be affirmed. After weighing the evidence in the record and making allowances for not having observed the witnesses personally, I am not convinced beyond a reasonable doubt that certain essential elements of rape have been proven.
Force and lack of consent are necessary to establish this crime. Incorporated into the Uniform Code of Military Justice at the outset, these statutory elements have not been modified. Societal changes and case decisions may have prompted differing views on how these elements are manifested, but they still must be proven beyond a reasonable doubt in order to convict a person of the military offense of rape.
The new concepts of “date rape” and “acquaintance rape,” as described by Judge Edwards, have had their effect on various state legislatures and courts, but the Uniform Code of Military Justice remains *685unaffected by these latest civilian developments. Helpful as the state opinions on this subject seem to be to my brothers, I find them inapt until such time as Congress sees fit to modify the Uniform Code of Military Justice in the same manner as the states.
Various degrees of seriousness could be provided for in the Uniform Code of Military Justice with lowered proof requirements for the less serious sexual crimes, particularly with regard to proof of force and physical resistance. Until those amendments are made, however, rape, with a statutorily authorized penalty of death, continues to be an offense that can be treated as seriously as first degree murder. I do not believe the accused is guilty of a crime of that magnitude.
■ The relatively light sentence adjudged by the court members appears to reflect the same view. They, nevertheless, convicted Appellant of rape after hearing evidence that during the period leading up to the act of penetration, the alleged victim did not attempt to hit or otherwise physically repel Appellant, did not scream, and did not attempt to flee. Moreover, Appellant made no threats of any kind and Petty Officer T was never afraid that he might harm her. There was also evidence that on a subsequent occasion, under almost identical circumstances, Petty Officer T, by demonstrating her will not to have intercourse with Appellant, was able to walk him to the kitchen and out the door.
The Manual for Courts-Martial, 1984 provides that:
If a woman in possession of her mental and physical faculties fails to make her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that she did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the female is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a woman gave her consent, or whether she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm.
Paragraph 45c(l)(b), Part IV, Manual for Courts-Martial, 1984.
The Manual provision discusses resistance only in terms of its reflecting consent or non-consent. The case of U.S. v. Bonano-Torres, 31 M.J. 175 (C.M.A.1990), ties resistance also to the question of force. The Court of Military Appeals made it clear in that case that it had no disagreement with the Army Court of Military Review’s legal conclusion that, “resistance is central to finding the element of force.” Id. at 178. The Court also found no legal error in the Army Court’s refusal to apply the doctrine of constructive force, upon its finding as fact that the alleged victim was both physically and psychologically capable of resisting the accused’s sexual advances, that the, accused did not use threats of bodily harm, and that the circumstances were not otherwise such that resistance would be futile. Id. at 179-180.
Applying the principles from the Manual for Courts-Martial and U.S. v. Bonano-Torres, supra, to the evidence of record, I find factually, first, that the requisite element of force has not been proven beyond a reasonable doubt. Secondly, on the question of consent, I find that, notwithstanding Petty Officer T’s verbal protestations, she did not physically resist Appellant’s advances, once she found herself sitting on the kitchen counter.
In possession of her mental and physical faculties, Petty Officer T failed, in my view, to take such measures as were called for under the circumstances to make her lack of consent reasonably manifest. Moreover, her failure to resist was not because of a fear of death or grievous bodily harm.
I infer from these facts that at some point Petty Officer T consented to the act of intercourse, either because she changed her mind or because she simply wanted to get rid of Appellant, in the same manner as *686the alleged victim in U.S. v. Bonano-Torres. In either event, the finding of guilty may not be affirmed.
My conclusions are reinforced by the evidence that on a subsequent occasion Petty Officer T was capable of foreclosing Appellant’s advances. Failure to take similar steps on the night of the alleged rape confirms my assessment of the facts. I would set aside the finding of guilty of rape and dismiss that offense. I concur with Judge Edwards with respect to the remaining offenses, but I would return the record for a rehearing on sentence in view of the dismissal of the four orders violations and of the rape offense.
APPENDIX A
© Memorandum U.S. Department of Transportation Office of the Secretary of Transportation
Subject' APPOINTMENT OF APPELLATE MILITARY JUDGES TO THJ*¡ COAST GUARD COURT OF MILITARY REVI Dale' January 15, 1993
Reply tc Altn. of:
To- Chief Judge, U.S. Coast Guard Court of Military Review
1. The assignment of appellate military judges to the Coast Guard Court of Military Review, as reflected in the General Counsel's memo of April 20, 1992, is adopted this date as judicial appointments of my own. Those judges presently assigned and appointed by me are:
Chief Judge Joseph H. Baum
Judges Alfred F. Bridgman, Jr. Michael C. Grace John A. Bastek Terrance M. Edwards
The judicial duties and powers of these judges will be as prescribed under the Uniform Code of Military Justice.
*687APPENDIX B
U.S. Department of Transportation United States Coast Guard Memorandum
STATUS OF COAST GUARD COURT OF MILITARY Subject REVIEW AND PREVIOUSLY DECIDED CASES IN LIGHT OF V.S. V. WEISS Dato: 8 January 1993
From: Chief Judge, Coast Guard Court of Military Review aw ) Reply to: G — L—3 Attn.of: BAUM; 7-0045
To: Chief Counsel
1. As I indicated yesterday, all the judges on the Coast Guard Court of Military Review are in agreement as to the potential effect of U.S. v. Weiss, _ M.J. _ (C.M.A. Dkt. No. 67,869 December 21, 1992) on the Court and on cases already decided that are not final. Our conclusions are:
A. When the first Coast Guard case with the Appointments Clause issue is decided by the U.S. Court of Military Appeals, four judges will hold that the Constitution's Appointments Clause applies to appointment of court of military review judges and that the General Counsel's assignment of civilians to the Coast Guard Court of Military Review, as Judge Advocate General, while comporting with Article 66, Uniform Code of Military Justice (UCMJ), violates the Constitution i.e., that portion of Article 66 which purports to authorize assignment of civilians to a court of military review by the Judge Advocate General is unconstitutional. The views of the four Court of Military Appeals judges on this matter have already been made clear in U.S. v. Weiss, supra, a Navy-Marine Court of Military Review case with the Appointments Clause issue, but not involving any civilian judges — only active duty commissioned officers. The positions of those judges are as follows:
(1) Chief Judge Sullivan and Judge Wiss have stated that the terms of the Appointments Clause must be met when court of military review judges are appointed and that those terms are not satisfied by the Judge Advocate General's appointment of court of military review judges, military or civilian.
(2) Judge Gierke, with Judge Cox concurring without comment, holds that the appointment of court of military review judges must comport with the Constitution's Appointments Clause and that assignment of active duty commissioned officers to a court of military review by the Judge Advocate
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General does not violate the Constitution's Appointments Clause because all commissioned officers are appointed by the President in accord with the Constitution and that "appellate military judges need not be reappointed to perform judicial duties because judicial duties are 'germane' to the offices already held by them as legally trained commissioned officers of their respective armed forces." U.S. v. Weiss, supra, slip op. at 27. This rationale, of course, does not apply to civilians. Judge Gierke, with Judge Cox concurring, has sent the following clear signal that civilian appointments by the Judge Advocate General will be held unconstitutional:
In appellant's case we need not decide whether Congress inadvertently exceeded their authority by vesting the powers of an "Officer of the United States" in civilians who had not been appointed in accordance with the Appointments Clause, because no civilians participated in the appellate review of his case. We regard the provision for civilian members of boards of review and their successors, the courts of military review, as severable from the remainder of Article 66(a). Congress had two purposes in enacting Article 66(a). The primary purpose was to make boards of review mandatory for all services. The secondary purpose was to accommodate the Coast Guard by authorizing civilian members on boards of review. Where a statute attempts to accomplish two or more objects, it may be valid as to one and invalid as to others, so long as its purpose can be accomplished by the valid part and is not dependent upon or conditioned by the invalid part. Sutherland Stat. Const. § 44.07 at 503-04 (4th Ed. 1986 Revision).
U.S. v. Weiss, supra, slip op. at 26-27.
B. Given the expected Court of Military Appeals holding with respect to civilian judges, the assignment of both Judge Bridgman and myself to the Coast Guard Court of Military Review by the General Counsel will be declared constitutionally invalid, since we are civilian Coast Guard attorneys, unless both Judge Gierke and Judge Cox adopt the views expressed in U.S. v. Kovac, 36 M.J. 521
*689STATUS OF COAST GUARD COURT OF MILITARY 8 January 1993 REVIEW AND PREVIOUSLY DECIDED CASES IN LIGHT OF U.S. V. WEISS
(C.G.C.M.R. 1992) that Judge Bridgman and I, as retired commissioned officers, fall within the rationale expressed in U.S. v. Weiss, supra, and do not need to be reappointed. If both Judges Gierke and Cox reach that conclusion, our Court, as presently constituted, will be upheld because Judge Crawford, who finds the Constitution's Appointments Clause inapplicable, will concur in the result. On the other hand, if either Judge Cox or Judge Gierke concludes that retired commissioned officers fall outside the Weiss rationale, a three-judge majority — Chief Judge Sullivan, Judge Wiss and either Judge Gierke or Judge Cox--will disqualify Judge Bridgman and myself. We are not particularly sanguine about the prospects of the Kovac view being adopted because to date there has been no indication that there will be vigorous appellate advocacy of this position. To our knowledge, no supplemental briefs have been filed strongly advancing this position with the Court of Military Appeals nor has oral argument been requested by the Government in any of the Coast Guard cases. In fact, it is our understanding that the Weiss decision has not prompted the filing of any briefs with the Court of Military Appeals or requests for leave to file supplemental pleadings in light of that opinion.
C. If the Court of Military Appeals decision on this matter is adverse to the Coast Guard, there are at least 17 cases that have been decided by the Coast Guard Court of Military Review that will be directly affected, without a ruling of retroactive applicability. Those 17 cases, which are not final under Article 76, UCMJ, are three-judge panel decisions in which I participated. U.S. v. Elliott, 15 M.J. 347 (C.M.A. 1983) held that a panel cannot lawfully operate during a time when it has less than three members. Accordingly, at a minimum, those 17 Coast Guard Court of Military Review decisions will be invalidated and the record returned for another review by this Court. Our Court at that point will be composed of three active duty commissioned officers with other primary duties,' who, without devoting full-time to Court work, will be hard pressed to meet their Article 66, UCMJ responsibilities along with their other duties.
D. For these reasons, all the judges on this Court believe it is imperative that the Secretary of Transportation, in his capacity as a cabinet level head of department, reappoint the present judges to their judicial offices immediately so that they will be able to
*690STATUS OF COAST GUARD COURT OF MILITARY 8 January 1993 REVIEW AND PREVIOUSLY DECIDED CASES IN LIGHT OF Ü.S. V. WEISS
handle the current and future Coast Guard docket as a court constitutionally valid beyond any doubt. The attached memo will accomplish that result pursuant to the Secretary's Congressionally authorized appointment authority under 49 U.S.C. § 323(a), which states: "The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers." The Secretary's action will thus meet the requirements of that portion of Article II, § 2, cl. 2 of the Constitution which states: "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." No advice and consent of the Senate is required. .
2. If Secretary Card does not sign this memo before he leaves office, we contemplate that there will be an extended staffing period before the new Secretary is prepared to take such action. In that event, if the Court of Military Appeals decision is adverse, as expected, the work of this Court will be brought to a standstill.
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Enel: (1) Secretary, Department of Transportation Memo
*691Memorandum U.S. Department of Transportation Office of the Secretary of Transportation
APPOINTMENT OF APPELLATE MILITARY JUDGES Subject: TO THE COAST GUARD COURT OF MILITARY Date: REVIEW
The Secretary Reply to Attn, of:
Chief Judge, U.S. Coast Guard Court of Military Review
To:
1. The assignment of appellate military judges to the Coast Guard Court of Military Review, as reflected in the General Counsel's memo of April 20, 1992, is adopted this date as judicial appointments of my own. Those judges presently assigned and appointed by me are:
Chief Judge Joseph H. Baum
Judges Alfred F. Bridgman, Jr. Michael C. Grace John A. Bastek Terrance M. Edwards
The judicial duties and powers of these judges will be as prescribed under the Uniform Code of Military Justice.