From the time the Japanese attacked Pearl Harbor on December 7, 1941, until the end of World War II in 1945, 43 US soldiers were executed for committing the crime of rape. Following the war, U.S. troops occupied the conquered nations, and by February 22, 1946, the number of soldiers executed for rape had risen to 51. (This does not include those soldiers executed for committing the dual crimes of rape and murder.) At the time, article of war 92 made mandatory a sentence of either death or imprisonment for life for this offense, a far more severe penalty than mandated by European nations.*
Two troubling, but related, phenomena combined to cause some, and more likely numerous, innocent soldiers to be unjustly punished for rapes they did not commit during the War and in its immediate aftermath:
First: The Severity of the Punishment for Rape was Believed to Have Encouraged False Rape Claims
Article of War 92 made mandatory a sentence of either death or imprisonment for life for soldiers convicted of this offense. The House Committee on Military Affairs issued a disturbing report in June 1946 called Investigations of the National War Effort. The Report noted: "Armies of other nations in Europe and probably elsewhere never give a sentence of more than 10 years for this offense (the British Army gives 6 months to 2 years) and when the peoples abroad have seen us hang our own soldiers for it they have been asking curious questions about American freedom."
The severe punishment for rape was known among the conquered German people. The Associated Press reported in May 1945 that evidence showed at least some false rape accusers were aware that rape was a hanging offense for American soldiers.
The departing German army prompted at least three women to falsely accuse American soldiers of rape in an effort to harass American troops. False rape claims were used as weapons of war.
Moreover, the House Report Investigations of the National War Effort noted: "Bringing charges of rape against American soldiers became a sort of racket among some portions of the populace in the European theater. . . ." The severe penalty for committing rape, the House Report explained, might have "contributed to a practice in Europe of bringing the charge in order to extort money from American soldiers . . .."**
Second: The Military Was Less Interested in Justice than in Public Relations
The House Report Investigations of the National War Effort raised troubling indications that numerous innocent soldiers were wrongly convicted of rape, and some of these might have been sent to the gallows.
When it came to charges of rape, military justice erred on the side of severity in the interest of setting examples and in maintaining the U.S. Army's good name among the local populace where the army served. The House Report explained: ". . . it is believed that numerous convictions of innocent soldiers took place because courts too amiably accepted dubious identifications in the interest of discipline in general or of maintaining the good name of the army among liberated or conquered people."
"Military law, like our other law," the Report explained, "is supposed to proceed on the presumption that the accused is innocent until his guilt is proved beyond reasonable doubt. This is explicitly stated in the manual. In practice, however, the reverse is often the case. . . . ."
A startling case that illustrates the injustices was the famous trial involving Lt. Sidney Shapiro. A woman claimed she was raped near a Nebraska army base in 1943, and that she bit her assailant in the hand before he got away. Military police later spotted a man with a bandage over a laceration on his hand, so, on that basis alone, they charged him with assault with intent to rape. Second Lt. Sidney Shapiro was ordered to defend the accused man in the court martial. Shapiro decided he needed to attack the accuser’s identification.
At the opening of the court martial proceedings, Shapiro kept the accused soldier outside the room, and substituted in his place another soldier who had no connection with the case. Under oath, the accuser solemnly identified the impostor as her assailant, and so did two other government witnesses. Not until the prosecution had finished its case did Lieutenant Shapiro tell the court what he had done. A mistrial was declared.
A few days later, a second trial was held, this time with the true defendant in the courtroom. The same accuser and the same government witnesses who just a few days earlier had wrongly identified under oath an impostor as the guilty man now swore that this man was the perpetrator.
The result? The court had no difficulty accepting the witnesses’ testimony the second time around, and the man was convicted and sentenced to 5 years imprisonment.
For his part, Lt. Shapiro was kicked out of the Air Force -- relieved of his commission. Why? For delaying a court martial proceeding. The fact that this "delay" exposed the blatant injustice of convicting the man accused was lost on the military. Only after the war had ended did President Truman pardon Shapiro.
*On the American penchant for punishing rape with death: during the oral argument of the Kennedy v. Louisiana, 2008 U.S. LEXIS 5262 (June 25, 2008), Justice Ruth Bader Ginsburg noted that the historical imposition of the death penalty in rape cases stems from a tradition "when a woman was regarded as as good as dead once she was raped; and the crime was thought to be an offense against her husband or her father as much as it was to her." Importantly, treating rape as akin to murder, and thus warranting the death penalty, did "no kindness to women," she noted.
**Rape was, of course, a serious problem during the war, but it was widely believed that American soldiers were not the chief offenders. During the brutal Battle of Manila, which ended the three year Japanese occupation of the Philippines, Japanese soldiers and officers rounded up 400 young Filipino women and selected 25 based on their beauty to be used as unwilling human sexual playthings. The women were taken to a hotel where the soldiers passed them from room to room and forced them to endure night-long rape-fests; some of the women were subjected to 15 separate rapes. The women were stripped, slapped, and kicked and could be heard screaming for mercy. Soldiers threatened to murder members of the women's families if they refused to submit. Some of the victims were as young as 12-years-old.
Moreover, during the Russian occupation of Vienna immediately after the war, there were reports of Russian soldiers raping Austrian women to "get even" for what Germans had done to their homes and women. One soldier admitted to raping an Austrian woman, even though it meant execution by the American army. "My wife was raped and killed in the advance on Stalingrad," he explained.