Addressing sexual harassment in the United States Military

Sexual harassment is often a precursor to sexual assault -- and sexual harassment has existed in the military for at least as long as women have.

Resistance to the integration of women into the Armed Forces emerged from the beginning. The Women's Army Auxiliary Corps was established in 1941. Other than nurses, WAACs were the first women to serve within the ranks of the United States Army. Opposition to the bill to establish the WAACs centered around southern congressmen. A congressional pamphlet relates a question asked by a representative: "Who will then do the cooking, the washing, the mending, the humble homey tasks to which every woman has devoted herself; who will nurture the children?"

During World War II, in a time of significant censorship, soldiers' mail was reviewed. The reviewing agency reported that 84 % of the letters mentioning WAACs were unfavorable. A law journal article states that male soldiers tended to question the morals of women in military service, and that "male folklore" held that WAACs were prostitutes assigned to "keep men happy."

The problem of sexual harassment is long-standing and efforts to stop it have been largely unsuccessful. This article will discuss the various responses of Congress, the military, the courts, and finally, the president to sexual harassment.

Problem: Retaliation for Reporting

Sexual harassment is rampant in the military, but exact numbers are unknown. Under-reporting is a huge problem, and fear of being retaliated against is assumed to be the primary reason.

Army Specialist Vanessa Guillen was murdered following prolonged sexual harassment. Afterward, one of the investigators said in a public briefing: "What we found was that there was a fear of retaliation -- all forms of retaliation, stigmatism, ostracism, derailing a career, assignments, work assignments and that sort of thing. There was a fear, a founded fear that the confidentiality of the reporting process would be compromised."

Military surveys indicate that 67 % of those who experienced unwanted sexual contact and reported it to the military faced retaliation. In most situations, if someone wants to report harassment in the military, they must formally involve the chain of command. Attaching one's name to a formal complaint that goes through the command structure presents a high risk of retaliation.

Problem: Title VII Doesn't Apply

Title VII of the Civil Rights Act of 1964 shields employees from discrimination in the workplace. As originally enacted, Title VII did not apply to the federal government. In 1972, Congress extended the protections of Title VII to federal as well as state and local employees in the Equal Employment Opportunity Act of 1972. 42 U.S.C. Sections 2000e-16. However, Title VII still does not cover uniformed military personnel. Jackson v. Modly, 949 F.3d 763 (2020).

Problem: Feres Frustrates Civil Cases

Many civil actions have been attempted by service members against the military, but none have been successful. The granddaddy case is Feres v. United States, 340 U.S. 135 (1950), and its much-loathed offspring, the "Feres doctrine." Issued shortly after Congress enacted the Federal Tort Claims Act, the U.S. Supreme Court in Feres held that, while the rest of the country could sue the government in tort, members of the military could not.

Sailors who claimed they were discriminated against in work assignments were unsuccessful when they claimed they had been denied their constitutional rights. Chappell v. Wallace, 462 U.S. 296 (1983). Former service members who had secretly been administered LSD by the Army were not successful. United States v. Stanley, 408 U.S. 669 (1987). In 2011, 28 military sexual assault victims filed a class action against Donald Rumsfeld and Robert Gates, alleging these former secretaries of defense fostered an environment that resulted in the plaintiffs becoming victims of sexual assault. Their claims were made for violation of their constitutional rights pursuant to Bivens v. Six Unknown Agents of the Federal Agents, 403 U.S. 388 (1971). A federal court dismissed it and the 4th U.S. Circuit Court of Appeals affirmed, stating "it is Congress, not the courts, that the Constitution has charged with that responsibility." Cioca v. Rumsfeld, 720 F.3d 505 (2015).

In one case, a woman in the National Guard was assaulted by a man who outranked her while on temporary duty. She did not report the incident. For the next eight years, the sergeant made constant sexual insinuations and invitations, which she did not report either out of fear of losing her job or damaging her reputation. When she did not answer his telephone calls, he had her transferred closer to him. One night he raped her. She brought an action for violation of her civil rights. A federal district court found her claims arose from injuries incident to military service and were barred by the Feres doctrine. Perez v. Puerto Rico Nat. Guard, 951 F.Supp. 279 (2013). Numerous other plaintiffs have had their cases against the military tossed.

There is an ongoing civil action in the Central District of California involving alleged sexual harassment and sexual assault. Spletstoser v. United States, 19-10076 (C.D. Cal., filed Nov. 25, 2019). Plaintiff was a colonel in the Army. After she began serving under a general in the Air Force, he allegedly began the advances. During a temporary duty assignment in Palo Alto, the general dismissed the rest of the team but requested the colonel remain in the hotel room with him. According to a court document, the general grabbed her hand and put it on his crotch. The colonel immediately left the room. About four months later, this time in Monterey, according to the opinion, the general sent the colonel a text message asking her to come to his hotel room to go over some work issues, and when she arrived, he was half-dressed and pulled her into his arms. The opinion relates similar and escalating conduct in Washington, D.C., Seoul, London, Halifax and Simi Valley. Prior to the colonel's repeated opposition to the sexual advancements and assaults, the general gave her extraordinary reviews, but became upset with her refusals and undertook to retaliate against her. He initiated proceedings and she was relieved from her position, allegedly at the general's request.

In 2019, it was announced the general was nominated to become vice chairman of the Joint Chiefs of Staff. The colonel disclosed the general's conduct to the Air Force Office of Special Investigation. She was denied her request to personally appear and discuss her allegations. The general was confirmed as the second most senior officer in the United States military.

The colonel sued the general alleging seven state law claims. The general moved to dismiss the action under the Feres doctrine. A federal judge in California denied the motion, stating that "it is not conceivable that General Hyten's military duties would require him to sexually assault Plaintiff, or that such an assault would advance any conceivable military objective."

It has been five years since the alleged advances began. Both the colonel and the general are now retired. The legal action continues.

Criminal Actions and the UCMJ

Since 1997, Congress has required commanders to report and investigate all complaints alleging sexual harassment. Retaliation has been a UCMJ criminal offense since 2016. Unlike sexual assault, which is specifically punishable under the Uniform Code of Military Justice, sexual harassment -- until last month -- was not a named crime. However, it has been prosecuted either as a violation of a lawful general order or as maltreatment.

A few representative cases are presented here. In United States v. Carson, 55 M.J. 656 (2001), the accused was convicted by general court-martial of maltreatment of subordinates after exposing himself to female subordinates. He was given a bad-conduct discharge. In United States v. Jones (2003 WL 131691), the accused sexually harassed four female Marines. One of the four Marines said she was sitting during a break in field exercises when the accused threw sunflower seeds down her shirt. When she stood to shake them out, he made comments about the size or appearance of her breasts. The court found he created a hostile work environment. His pay was reduced and clemency was granted with regard to a bad-conduct discharge.

Both Congress and the military had been acting in response to allegations of sexual harassment -- then, the 2018 Annual Report on Sexual Assault in the Military was released. It made for grim reading. It included a recommendation to amend the UCMJ to include a stand-alone military crime of sexual harassment. Acting Secretary of Defense Patrick Shanahan issued an "Actions to Address and Prevent Sexual Assault in the Military" memorandum. Shanahan's memo directed the military departments to implement the recommendations in the report, stating "my resolve to eliminate these crimes is stronger than ever."

A recent journal article argues that sexual harassment, no matter how reprehensible, is not criminal conduct. The article says that criminalization is likely to undermine the military's efforts to prevent and punish sexual harassment by raising the stakes for the involved service members, thereby deterring reporting and imposing a high evidentiary standard. Kessler and Gearhart, "Sexual Harassment Is Not a Crime: Aligning the Uniform Code of Military Justice with Title VII," 6 U. Pa. J. L. & Pub. Affairs 413 (2021).

The UCMJ was amended as of January 1, 2022, with changes that will affect the law in some important ways, including the creation of a special trial counsel. The STC will have exclusive authority over some functions previously performed by commanders. But under the recent changes, overseeing sexual harassment charges would not be one of the functions the new STC will have authority over unless a charge of sexual harassment is connected to a charge over which the STC does have authority.

Charges of sexual harassment would remain under the administration of commanders. However, the new changes require commanders to forward any sexual harassment complaint to an independent investigator within 72 hours for an independent investigation outside the chain of command.

However, the recent UCMJ changes did not go far enough for President Joe Biden. On January 26, 2022, Biden signed Executive Order 14062, making sexual harassment a specific criminal offense under the UCMJ. Prior to this order, there was no specific charge for sexual harassment in the UCMJ. Instead, military prosecutors had to creatively try to bring the conduct under various sections of the UCMJ. With the new executive order, military prosecutors will now have a direct tool to respond to complaints in that troops can now be charged with sexual harassment under Article 134. Violation of Article 134 will subject military members to a misdemeanor conviction and up to one year in jail. No longer will commanders have the discretion to decide who is prosecuted.

Conclusion

Sexual harassment can be, and often is, the gateway to both sexual abuse and sexual violence. Most remedial routes to address sexual harassment available to civilians are largely unavailable to members of the armed forces.

There's no civil remedy.

Federal courts have obliged the military's claimed need to be independent from civil courts to preserve good order. In exchange for this independence, the military has promised its justice system will provide the basic protections of the civilian justice system. With regard to sexual harassment, however, the military has been unable to keep its promise.

The independent review committee for the 2009 mass shooting at Fort Hood found that "while Fort Hood afforded the highest priority to maintaining equipment, conducting field training and ensuring deployment capability, a series of command elements executed these duties in a manner that was at the expense of the health and safety of all soldiers, but particularly women at the brigade level and below." Perhaps that finding says it all.

We want our country to be ready and able to defend itself, but not at the expense of the physical and mental health of our soldiers. Sexual harassment in the military can't be tolerated any longer.

We'll be watching to see what happens with the ongoing civil trial and whether Biden's executive order will begin to turn matters around in order for military women to serve their country with dignity and self-esteem. 