Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment in the Military.
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Abstract
In 2022, for the first time in American history, Congress enacted legislation criminalizing hostile work environment sexual harassment. More serious types of sexual harassment have long been criminal under the Uniform Code of Military Justice, but hostile work environment harassment is a civil wrong, not a crime, and should not have been made into one.
Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (now listed under Article 134, UCMJ (Sexual Harassment), is both unconstitutional and counterproductive. It violates the Fifth Amendment for vagueness by failing to provide fair notice of what is prohibited, and the First Amendment for overbreadth by punishing a substantial amount of protected free speech. The new punitive article will, perhaps counterintuitively, exacerbate the problem of sexual harassment by: (1) creating disproportionately severe punishment for the offender; (2) increasing antagonism between the offender and offended party; and (3) raising the evidentiary burden of proof for complaints. Treating sexual harassment as a crime rather than inappropriate workplace conduct raises the stakes beyond that which is conducive to actual learning, healing, and, ultimately in this context, effective warfighting.
Accordingly, Congress should repeal Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (Section 539D of the FY22 NDAA) and the President should cancel Executive Order 14062. The Services should also eliminate hostile work environment sexual harassment entirely from the criminal context by removing the punitive language from their regulations in favor of restorative justice, as well as administrative discipline and separation. This is the only way for the United States to make lasting progress toward reducing the problem of sexual harassment in the military.
The most pressing problem with criminal law today is that we have too much of it.[1]
Introduction
In 2005, Saturday Night Live performed a sketch satirizing a sexual harassment training video in which attractive and unattractive males—Tom Brady and Fred Armisen, respectively—say the same inappropriate things to their female co-workers but elicit opposite responses: a welcome agreement to go to lunch and a sexual harassment lawsuit.[2] The final frame listed the following steps to avoid sexual harassment claims: “1. Be Handsome, 2. Be Attractive, 3. Don’t be Unattractive.”[3]
Today, no one would deny that sexual harassment is a problem and should be taken seriously, but the sketch illustrates how relatively minor sexual harassment claims are fundamentally subjective.[4] Such a nebulous and inconsistent standard of conduct has no place in criminal law. Nonetheless, on May 1, 2019, the Acting Secretary of Defense, Patrick M. Shanahan, issued a Memorandum directing the Department to “tak[e] steps to seek a stand-alone military crime of sexual harassment.”[5] Shortly thereafter, in light of the Specialist Vanessa Guillén tragedy—in which a young soldier was sexually harassed, went missing, and was later found murdered—members of the Senate and House of Representatives introduced similar bills purporting to enact a law to criminalize military sexual harassment.[6] In 2021, Congress passed the National Defense Authorization Act for Fiscal Year 2022 (“FY22 NDAA”), specifically criminalizing hostile work environment sexual harassment for the first time in the history of the United States.[7]
Sexual harassment consists of two categories of behavior: (1) abuse of power, known as “quid pro quo” harassment; and (2) conduct that creates an intimidating, hostile, or offensive working environment.[8] The latter is often referred to as “hostile work environment” harassment.[9] Exploitative conduct like quid pro quo sexual harassment has long been criminalized under the Uniform Code of Military Justice (“UCMJ”), and Section 539D of the FY22 NDAA does not change or replace any of the existing articles in the UCMJ that cover that type of conduct. This Article focuses on the innovation of hostile work environment harassment as a crime.[10]
This behavior, while inappropriate, is not a crime by nature and should not have been made into one. Section 539D of the FY22 NDAA, and its implementing document Executive Order 14062, are unconstitutionally vague and overbroad.[11] Moreover, criminalization is an ineffective means to address hostile work environment sexual harassment.[12] Accordingly, Congress should repeal Section 539D, and the President should cancel the Executive Order.[13] Furthermore, the Services should eliminate hostile work environment sexual harassment entirely from the criminal context by removing the punitive language from their regulations in favor of implementing restorative justice and administrative discipline and separation.
To understand the inception and evolution of sexual harassment as a civil wrong and how it came to be a crime for Service members, Part I tracks the historical context of this area of the law. Part II demonstrates that the new punitive article is both unconstitutional and counterproductive. Part III suggests some legal and practical ways to address sexual harassment without the “blunt tool of the criminal law.”[14]
[1] Douglas Husak, Overcriminalization: The Limits of the Criminal Law 3 (2007).
[2] Saturday Night Live, Sexual Harassment and You - Saturday Night Live, YouTube (Oct. 24, 2013), https://www. youtube.com/watch?v=PxuUkYiaUc8 (showing each male character saying, “Hi Lisa, you look pretty hot today. Maybe we should go to lunch sometime,” while Brady’s character goes further and touches Lisa’s breast).
[3] Id.
[4] Hugo Schwyzer, It’s Okay to Call a Guy Creepy, The Atlantic (June 27, 2013), https://www.theatlantic.com/ sexes/archive/2013/06/its-okay-to-call-a-guy-creepy/277256.
[5] Secretary of Defense, Actions to Address and Prevent Sexual Assault in the Military 1 (2019).
[6] Christopher Swecker et al., Fort Hood Indep. Rev. Comm., Report of the Fort Hood Independent Review Committee 5–10 (2020), https://www.army.mil/e2/downloads/rv7/forthoodreview/2020-12-03_FHIRC_report_ redacted.pdf; I Am Vanessa Guillén Act, S. 4600, 116th Cong. § 3 (2020); I Am Vanessa Guillén Act of 2020, H.R. 8270, 116th Cong. § 3 (2020).
[7] National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 539D, 135 Stat. 1541 (2021). There are not even serious calls to make hostile work environment sexual harassment a crime in any other jurisdiction. See, e.g., Sally Kohn, Sexual Harassment Should be Treated as a Hate Crime, Wash. Post (Dec. 11, 2017, 6:00 AM) https://www.washingtonpost.com/news/posteverything/wp/2017/12/11/sexual-harassment-should-be-treated-as-a-hate-crime/ (“I don’t mean this in the formal, legal sense.”).
[8] Dianne Avery, Overview of the Law of Sexual Harassment and Related Claims, in Litigating the Sexual Harassment Case 3 (Matthew B. Schiff & Linda C. Kramer eds., 2d ed. 2000) (noting the Supreme Court’s use of the terms “quid pro quo” and “hostile working environment” in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)); Vicki Schultz, The Sanitized Workplace, 112 Yale L.J. 2061, 2077 (2003); Augustus B. Cochran III, Sexual Harassment and the Law 55–127 (2004).
[9] Avery, supra note 8, at 3.
[10] See, e.g., UCMJ arts. 92 (1950), 93 (1950), 93a (2019), 120 (2017), 128 (2018), 133 (2021), 134 (2019); National Defense Authorization Act for Fiscal Year 2022 § 539D. The preemption doctrine requires that conduct covered by Articles 80 through 132 UCMJ, be charged thereunder, not under Article 134. Manual for Courts-Martial, United States pt. IV, ¶ 91.c(5) (2019) [hereinafter MCM 2019]; United States v. Avery, 79 M.J. 363, 366 (C.A.A.F. 2019).
[11] See Part IIIA.
[12] See Part IIIB.
[13] National Defense Authorization Act for Fiscal Year 2022 § 539D; Exec. Order No. 14062, 87 Fed. Reg. 4763, 4784–85 (Jan. 31, 2022) (amending MCM 2019, supra note 10, at pt. IV, ¶ 107).
[14] Avlana K. Eisenberg, Criminal Infliction of Emotional Distress, 113 Mich. L. Rev. 607, 613 (2015).