Arresting 'Tailhook': The Prosecution of Sexual Harassment in the Military

• Author: Lieutenant Commander J. Richard Chema
• Pages: 01

I Introduction

Over the past several years, the military has been rocked by allegations not only that pervasive sexual misconduct agamst women exists in the ranks, but also that the leadership condones or ignores various sexual abuses. Consider the following reported inmdents. "Tadhook." 1 rapes of female soldlers dunng Desert Shield and Desert Storm; institutionalized blas against female sexual asaault victims so pervasive that Air Force investigators use a "rape allegation checklist" as a way to minimize or discredit female service members' rape complaints; chaining of a female midshipman to a urinal at the Naval Academy. These and other alarming Incidents have focused attention on the way women are treated in the military like never before The revelation of dishonorable conduct engaged in by many naval officers against women at the Tailhook Convention in September 1991, the apparent

'Judge Advocate Generals Corps, United Slates Saw Presently assigned

BQ Command Judge Advocate, ONlce af Naval Intelhgence. Washmgtan. D C B A , 1978. Georgetown Unwersity. J D , 1981, the Ohm State Unmeralty College af Law LL M,

1993 Tha Judge Advocate Generah School. Unlted States Arms Former a~~~gnmenfiindude Appellate Cauncel, Offlei of the Judge Advocate General. Appellate Government Dmsmn. 1989-1992. Senior Tnal Counsel, u S Sai,al Legal Service Offlee, Naples, Ita]>. 1988-1989. Stan Judge Advocate, Naval Air Station, Sorth Island. 1985-1986 Thrr article E based on a written disierfatmn that the author svbmllted to satisfy. ~n part. the Master of Lawsdegree requirements far the 41at Judge Advocate Ofieer Graduate Courae

'In na~daw~non,

B "tadhook ii the grappling device used to help stop a fixed.wmg aircraft landing on an aircraft C B ~ T ~ T

The term waa adopted by the

Tadhook Asbocmhan as the name far ~tspmfesnonal organlxafmn dedleated to promoting naval siistion Because of the highly publicrmd scandal ~nvolvmg iexusl abuse by malm against females graving out of the Tailhook A3iooiatmn's convention which occurred ~n Las Vsgm% ~n September 1991. the term IS now B

shorthand description for the events mvolvlng that scandal Throughout this artrcle 11 will be vsed I" thst context

desire of Navy leadership to cover up the situation, and the failure of the Navy to resolve the scandal in a timely manner have created a public perception of widespread "sexual harass-ment"z in the armed farces, especially in the Navy. Public awareness of theae problema ~n the military has been heightened because they have followed immediately in the wake of the widely publicized confirmation heanngs far Supreme Court Justice Clarence Thama8.s

Apparently in response to the problems perceived to exist in dealing with women, the Navy recently revised its policy on "sexual harassment." On January 6, 1993, the Acting Secretary of the Navy published B regulation implementing a new sexual harassment policy for the naval services. This regulation' defines sexual harassment and makes violation of its prohibition of sexual harassment a punitive offense punishable under the Uniform Code of Military Justice (UCMJl.6 This regulation is the first instance of eriminalizing conduct as per se sexual harassment, as opposed to prosecuting the underlfmg conduct under various traditional criminal statutes.

This article examines whether substantive changes inmilitary law-like the Navy regulation-are necessary to deal adequately with the mistreatment of women in the military It examines conduct that commonly is referred to a8 sexual harassment and discusses how it can be prosecuted under current provisions of the UCMJ Additionally, the Navy regulation and other similar regulatory and statutory proposals,6 which aim

'The tern ''se~udharassment" commonly IS used 10 designate a wide range

of mislrtstment of women h'evertheless, the term has both B technical legal defimbon developed through employment discrimination law. and a more expanmve lay pereon's usage, which ineludes enminal assaultive eonduet

'Durmg the eonise of those hearmgs. Anita Hill slleged that she we8 s~xually harassed I" the work place by Justlee Thomsa

'DEP'T DP NAVY SECRETUIY OF THE NAW ~NSTR 5300 268. POLICY

Navy

and Manne persannel, as well as midshipmen sf the United Staten Naval Academy 01 1" the Reserve Oficer Training Carpa See grnriaily UCMJ art 2 11986)

June 1992, the Secretary ai the Navy reqvestrd that a separate statute mrohhime ~exuslharasimeni be drahd as a orooased amendment to the UCMJ Memoranim from H Lawrence Gsrrett 111, Sr;stary of the Navy 10 the Judge Advocate General of the Naw (June 12, 1992) (on file with author1 In reaponlo, a proposed change to the law WBI drafted To date, 11 has not been submitted to Congress Wlth tho continued negative publrrty over BDXYS~ harassment ID the b a y . end the apparent hnkage of thir maue to the highly ~ontr0vers3~1issue of

homosexuals I" the militani. iueh a ehanie La the UCMJ may be submitted

DEFT OF Am FORCE,h a FORCE REO 30.2, Saciu Amions PnooRlM I18

Apr 19861 IC2. 25 Sept 19921 Ihereinsfter AFR 30-21. slm purports to be a pumtiue mgulatmn This replatmn contsma, infer die, An Force pohe~ea

SEXUAL H*R*SBMEIT

(6 Jan 19931 [hereinafter SECNAV I ~ s m

5300 2681

'The p~nitive reach ai the regulation exfenda to all active and ~ebema

directly at eriminalizing conduct as sexual harassment, are examined and compared with existing UCMJ provisions as vehicles for prosecuting conduct deemed to be sexual harassment.

Criminal prosecution of sex crimes and sexual harassment is an important aspect of an overall military policy against diecrimination and abuse of women in the armed forces. Choosing the correct approach, either the direct crirninalizatian of sexual harassment through efforts like the Navy regulation, or an aggressive reliance on traditional criminal statutes geared at the underlying criminal conduct of the alleged harasser, will be a major step towards resolving the mistreatment of women in the mditary.

11. What Is "Sexual Harassment?"

A. Employment Discrimination LawTitle VI1 of the Civil Rights Act of 1964 makes it "an

unlawful employment practice for any employer . . . to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such indindual'~ race, color, religion, sex, or national origin."'

This statute has led to the development of a vast body of employment discrimination law. One aspect of employment discrimination is sexual harassment. In 1980, the Equal Employment Opportunity Commission (EEOC) published guidelines defining sexual harassment. The guideiines currently include the

Unwelcome sexual advances, requests far sexual favors, and other verbal or Dhvsical conduct of a sexual nature

follow,ng:

prohibiting arbitraly discrimination based on age, color, national ongin, race, ethnic group. mhgion, or sex. Id. pars 6.3. Included a8 typea of arbitran disenmination are nae of diaparsglng terma. personal dmcrimmstm, and inatitutronsl diacnmmstian against any of ths above enumerated protected groups. In a change to this regulation on September 25, 1992, sexual harmment spseidcally 16 inclvdsd as a type of prohibited sex dmsnmination. Id pars 6.4b. see United States V. Kroop, 34 M.J 628. 635 n 2 (A.F C M.R.

19921 iimplylng that

sexual harassment e m be pmseculed B nolsbon of this srdsrl At thie time. few ~f any pmaecutioni have oecurred beeavie no reported cadel deal with the regulation on ~exnal haraisment or other mudenla of @ex diicrirnmatian Theorder was used ~n United Ststea Y. Way, No S28590 iAF.C.M.R. 20 Mar 19921, to prosecute racial prejndiee stemmmg from ~aymg ramal slur8 Although the opinion had littls legal aoslyaia, it did hold that the conlietion could not be matamed because the rigvlation WBB, inter elm, ''vague " Id dip op at 5 Both the Navy and An Farce regulations contain esaentislly the same dexual harassment prohibitions, m that their dafimtmns of sexus1 harassment are identiosl and both denw from employment diecnminatioa law

'42 US

C 8 2000s-2(aX1) i1988) (emphasis added1

constitute sexual harassment when (1) submission tosuch conduct is made either explicitly or implicitly aterm or condition of an mdwidual's employment, (2) submimion or rejection of such conduct by an Individualis used as a basis for employment decisions affectingsuch mdmdual, or (3) such conduct has the purpose or effect of unreasonably interfering with an mdmdual'swork performance or creating an Intimidating, hoatile,or offensive working environment.8The guidelmes identify the nature of the two general types of sexual harassment-qurd pro quo harassment and hostile en-vironment harassment Quid pro quo is the most easily reeognm able form of sexual harassment. It involves conditioning a subordinate's economic or other job benefits an the subordinate's w~llingness to furnish sexual favors to a superior If the victim fails to acquiesce to the superior'a sexual demands, quid pro quoharassers may retaliate with Some form of work place punishment.3

The second type of sexual harassment-hostile environment sexual harassment-is more subtle and pernicious. In this type of sexual harassment, the emotional or psycholopal well-being of the wctm is damaged from having to work in an environment that LS polluted with discrimination. Hostile environment sexual harassment falls within Title VI1 because Congress intended to eliminate employment discrimination in the broadest possible manner through enactment of the statute 10 The Supreme Court validated the Title VI1 cause of action for this theory of sexual harassment in Meritor Saomgs Bank u V~nson

11 Relying principally on the EEOC guidelines then ~n effect,l2 the Court rejected the contention that an economic or tangible loss was required under Title VI1 Instead, Title VI1 "affords employees the right to work in an environment free from discriminatory Intimidation, ridicule, and 1nsult."l3 Henceforth, a man or woman no longer...