Criminalizing Sexual Harassment in the Military: A Double-Edged Sword?
The issue of sexual harassment and assault in the military has long been a topic of intense debate, reform efforts, and legislative focus. In recent years, Senator Martha McSally of Arizona has emerged as a vocal advocate proposing significant changes to the military justice system, specifically aiming to criminalize sexual harassment, hold commanders strictly accountable, and amplify funding for prosecution teams. But what do these proposals really mean for service members, commanders, and the military culture at large? In this blog post, we delve into key insights from a recent episode of the Military Law and News Network featuring court-martial defense attorneys Michael Waddington and Timothy Belecki. We’ll explore the potential impacts, challenges, and unintended consequences of these proposed reforms.
The Landscape of Sexual Harassment in the Military
Sexual harassment is generally understood as unwanted sexual advances or conduct that creates an intimidating, hostile, or offensive environment. In the military, where discipline, cohesion, and trust are paramount, addressing such behavior is critical. Traditionally, sexual harassment has been treated as a violation of military regulations or civil employment law rather than a criminal offense. However, Senator McSally’s proposals aim to elevate sexual harassment to a federal felony crime within the military justice system.
1. Criminalizing Sexual Harassment: Good Intentions, Complex Realities
What is being proposed? Senator McSally wants to transform sexual harassment from a regulatory violation into a separate criminal offense, punishable under the Uniform Code of Military Justice (UCMJ). This means that even relatively low-level offenses, such as inappropriate comments or behaviors that previously might have resulted in administrative actions or counseling, could potentially lead to felony charges.
Concerns from defense attorneys: Michael Waddington and Timothy Belecki caution that criminalizing sexual harassment could lead to a Pandora’s box of issues. For example, casual remarks or jokes that some may find offensive—like complimenting a colleague’s appearance or sharing a humorous but edgy joke—could be weaponized, resulting in criminal prosecution. This shift risks fostering a culture of fear where service members may hesitate to communicate openly or engage in routine banter, especially in close-knit units such as infantry or mechanics where rough humor is common.
Moreover, the subjective nature of what constitutes harassment could lead to inconsistency and abuse. Waddington highlights scenarios where historical comments or actions, such as playing a song with explicit lyrics, might be retroactively criminalized, devastating careers and lives over incidents that were previously handled administratively.
The broader implications: While the goal of eradicating sexual harassment is laudable, turning it into a criminal matter risks over-penalizing conduct that could be addressed effectively through workplace policies and administrative discipline. This could blur the lines between civil employment issues and criminal offenses, potentially overwhelming the military justice system and creating an adversarial environment detrimental to unit cohesion.
2. Holding Commanders Accountable: Balancing Responsibility and Command Authority
Another pillar of Senator McSally’s reform agenda is to hold commanders strictly responsible for addressing sexual harassment and assault within their units. This includes proposals to deny promotions to commanders who fail to aggressively prosecute such cases.
Unlawful Command Influence? Defense attorneys raise concerns that this approach could constitute unlawful command influence—a serious issue where commanders exert improper pressure on judicial or investigative processes. Commanders are entrusted with broad discretion and autonomy to lead their units, make operational decisions, and maintain discipline.
Mandating prosecution or tying career advancement to specific case outcomes could undermine commanders’ independence, forcing them into decisions driven by career considerations rather than justice or mission needs. It may also encourage overzealous prosecutions or mishandling of cases to avoid negative career repercussions.
Commanders’ perspectives: Many commanders genuinely want to do the right thing and foster safe environments but feel constrained by the competing pressures of mission readiness, legal complexities, and political scrutiny. The current environment already subjects commanders to intense oversight, and these proposals could exacerbate fears and uncertainty, potentially hampering effective leadership.
3. Increasing Funding for Prosecution Teams: The “Jedi Warriors” Approach
Senator McSally also advocates for significantly increased funding to create elite prosecution teams specialized in sexual crimes within the military. The intent is to enhance the effectiveness and efficiency of prosecuting sexual offenses, ensuring victims receive justice.
Potential benefits: Specialized prosecution teams with extensive training and resources could improve case outcomes, provide better support to victims, and deter offenders. Given the historical challenges in prosecuting sexual crimes in the military, this approach reflects a commitment to strengthening accountability.
Potential drawbacks: However, without parallel reforms addressing defense rights, investigative fairness, and command climate, increased prosecution aggressiveness could lead to imbalances. Additionally, funding alone doesn’t guarantee cultural change or prevent misuse of prosecutorial power.
Contextualizing the Debate: Cultural and Legal Nuances
The military operates within a unique cultural and operational framework. Unlike civilian workplaces, military units function as tightly knit teams often living and working in close quarters, under stress, and with a strong emphasis on hierarchy and discipline. This environment can amplify both the harms of sexual misconduct and the complexities of addressing it.
Furthermore, the legal framework of the UCMJ differs from civilian law, with commanders playing a pivotal role in initiating and overseeing prosecutions. Balancing the rights of the accused, the needs of victims, and the integrity of the military mission is a delicate task.
Efforts to reform military justice must carefully weigh the benefits of stricter penalties and accountability against the risks of over-criminalization, command overreach, and unintended consequences that could undermine morale and fairness.
Conclusion: Toward Balanced and Effective Reforms
Sexual harassment and assault in the military are serious problems that demand comprehensive solutions. Senator Martha McSally’s proposals highlight an urgent desire to reform and strengthen the military justice system’s response. However, as defense attorneys Michael Waddington and Timothy Belecki articulate, criminalizing sexual harassment and imposing strict punitive measures on commanders may carry significant risks, including potential abuses, chilling effects on military culture, and unlawful command influence.
Effective reform requires a nuanced approach that preserves commanders’ ability to lead, protects service members’ rights, and fosters a culture of respect without resorting to overly broad criminalization. Enhancing training, improving reporting mechanisms, supporting victims, and ensuring fair, unbiased investigations and prosecutions remain critical components of this endeavor.
As the debate continues, stakeholders must engage in open dialogue, balancing justice, discipline, and the unique demands of military service to create a safer and more just environment for all service members.
For more insights on military law and sexual harassment defense, visit UCMJDefense.com and follow the Military Law and News Network Facebook page.