By Stephen Carpenter, Jr., Civilian Military Defense Lawyer
I. Introduction To Sexual Harassment Claims During Military Investigations
In America’s history, instances of workplace sexual harassment have largely avoided criminal prosecution, but this will soon change. The recent revision of the Uniform Code of Military Justice (UCMJ), criminalizing sexual harassment, will profoundly alter the military in myriad ways. Indeed, as explained here to, federal prosecutors could weaponize the Military Extraterritorial Justice Act (MEJA) to conceivably hold civilian contractors criminally liable for “unwelcome” workplace behavior. Whether you’re in uniform or not, the same irreparable punishment will be meted out, welcome to the world of being a felon.
In May 1950, President Harry Truman created the UCMJ.[i] Nearly 70 years later, in response to the murder of U.S. Army Specialist Vanessa Guillen, Congress explicitly made “sexual harassment” a standalone crime under the UCMJ. Indeed, Congress routinely exercises “control over military discipline through the uniform code of military justice, which establishes an integrated system of investigation, trial and appeal that is separate from the criminal justice proceedings conducted in U.S. district courts.” United States v. Dowty, 48 M.J. 102 (1998) Specifically, Congress passed the National Defense Authorization Act whose “sexual harassment” provisions will take effect next Christmas.
II. New Article 134, UCMJ Crime and its Elements of Sexual Harassment
“Title VII does not serve as a vehicle for vindicating the petty slights suffered by the hypersensitive.” [ii] Indeed, in less than a year from now, on 27 December 2023, Soldiers and civilians alike will be faced with the troubling proposition of military investigations and going to jail for offensive misbehavior in the workplace.[iii] In this regard, Article 134, UCMJ lists the following elements of sexual harassment:
“(1) that the accused (defendant) knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
(2) that such conduct was unwelcome;
(3) that, under the circumstances, such conduct-
(A) would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of that person’s job, pay, career, benefits, or entitlements; or
(B) would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
(C) was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
(4) that, under the circumstances, the conduct of the accused was-
(A) to the prejudice of good order and discipline in the armed forces;
(B) of a nature to bring discredit upon the armed forces or (C) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.” [iv]
III. An Officer and Gentleman Code of Conduct
The legendarily quick-witted Groucho Marx once quipped “military justice is to justice, as military music is to music.” This colorful description evokes a certain military cadence, and a rigidity to the disobedience of it. In other words, the military has a set of core moralist values that are fundamentally distinct from civilians. Some may argue them old fashioned, borne of a bygone age when the internet did not exist. For example, the UCMJ criminalized “sodomy” before Lawrence v. Texas struck it down.[v] Even so, “adultery” remains a crime under Article 134, UCMJ. If convicted the adulterer faces a maximum period of 1-year in confinement, forfeiture of all pay and allowances, and a dishonorable discharge.[vi] The UCMJ also criminalizes “fraternization” or “dating” between officers and enlisted members. It is even broader than that, as enlisted members of different ranks are often also encouraged to not socially interact with each other. In its paternalistisch way, the DoD is highly sensitive to maintaining a force without the appearance of any interlocking examples of blatant social command favoritism. In fact, there are many landmines out there that could quickly end an otherwise promising career, or military investigations.
IV. The Ever-Expanding World of Sexual Harassment
Army commanders may be subject to court-martial should they fail to prevent “sexual harassment” within the ranks. In fact, if found guilty, the commander may face 2-years in prison for failing to obey a lawful general regulation under Article 92, UCMJ. AR 600-20, paragraph 4-14 is the general regulation that requires commanders (and unit) to police its members for any whisper of sexual harassment. As a result, Army leaders often proactively train Soldiers about what constitutes sexual harassment.
By illustration, Army Regulation 600-20, paragraph 7-7 broadly condemns #MeToo related “terms of endearment” to include arguably innocuous statements such as “honey” “sweetheart” “dear” “stud” or “hunk.” Id. Within this interpretational conundrum future JAG prosecutors may draw upon AR 600-20, paragraph 7-7, which liberally characterizes nonverbal “sexual harassment” as “inappropriately or excessively staring at someone too long” or “winking.”
Returning to the unimplemented crime, Article 134, UCMJ states that the ultimate characterization of whether conduct is “sexual in nature” is wholly “dependent upon the circumstances of the act or acts alleged and may include conduct that, without context, would not appear to be sexual in nature.” Under this totality of the circumstance’s theory an accused “must have actual knowledge that he or she is making a sexual advance or a demand or request for sexual favors or engaging in conduct of a sexual nature.”
In yet another reference to social media, Article 134, UCMJ advises that verbal or nonverbal conduct which constitutes sexual harassment “can occur at any location.” [vii] In other words, it can occur via text, e-mail, or other digital methods without physical proximity, meaning that it “may be committed through online or other electronic means.” And finally, the sexual harassment victim’s “belief or perception need not be formed contemporaneously with the actions that gave rise to that belief of perception.” By implication then, whether something becomes a crime will be largely dependent upon what the alleged victim retrospectively thinks, which may be directly influenced by her friend’s post-comment opinion.
V. Broad Methods to Offend or Start Military Investigations
The proliferation of federal criminal sovereignty into foreign lands to punish “sexual harassment” could become pervasive as contractors are, will forever remain a part of the force. By way of example, civilian contractors comprised “fifty-two percent of the Department of Defense (DoD) workforce in Iraq and Afghanistan.”[viii] MEJA “expressly provides for concurrent jurisdiction with courts-martial.” MEJA “extends to civilians employed by or accompanying the Armed forces.” Tellingly, its overseas enforcement “likely includes non-United States citizens.” United States v. Brehm, 2011 U.S. Dist. LEXIS 33903 The enforcement of MEJA “must comport with due process.” United States v. Brehm, 691 F2.3d 647 (4th Cir. 2012)
The Fifth Amendment to the United States Constitution states:“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Of course, this due process standard may be used to secure fair treatment of an accused that finds herself confronted with a investigation, or administrative board.
VI. A Bob Marley Liberty – “No MEJA, No Crime…”
By way of background, Congress promulgated MEJA to directly confront the inept “inability of the United States to appropriately pursue the interests of justice and hold its citizens criminally accountable for offenses committed overseas.”[ix] Indeed, Robert Reed, Associate Deputy General Counsel, forthrightly remarked that the United States continued failure to hold such individuals responsible “undermined deterrence, lowered morale, and threatened good order and discipline in our military communities.”[x]
Policies aside, there are no specific criminal acts listed within MEJA. See, 18 U.S.C. Part I. It merely avers that it’s a crime for certain individuals to commit certain acts outside the United States “if the act or acts they committed would have been a crime inside the United States.”[xi] Moreover, to establish a crime under MEJA prosecutors must demonstrate that the contemplated crime is a felony, with a maximum confinement period that exceeds 1-year, and, once more, that it is a crime under some provision of the U.S. Code [under Title 10].” See, A Military Practitioner’s Guide to the Military Extraterritorial Jurisdiction Act in Contingency Operations.” Army Lawyer (4 December 2012)[xii]
VII. Lockheed Martin Hypothetical on Sexual Harassment
To flush out the analysis on sexual harassment a short hypothetical may help illustrate how MEJA could lead to the indictment of such a formidable corporate business giant like Lockheed Martin that currently reigns as the largest U.S. military contractor in receiving, if you will, a sizable check from Uncle Sam for approximately $40.2B each year.[xiii]
In this proposed scenario, a high-level company executive (Mr. X) is working overseas during a contingency operation and engages in flirtatious behavior toward a fellow-foreign female contractor. She rebukes his unwelcome advances. Unsatisfied with his expression of remorse, she alerts the company, which inexplicably fails to meaningfully address the issue. She is then subjected to retaliation by her female supervisor, who, by innuendo, encourages her “loosen up and just relax” or words to this effect. The victim then attempts to speak to a male JAG attorney on the forward operating base (FOB) but is turned away as she is statutorily ineligible for legal assistance. Nevertheless, the overly conscientious JAG lawyer alerts the military command stationed on the FOB.
Continuing ahead, the FOB’s commanding general appoints an investigating officer (IO) to investigate the matter. Regrettably, the IO does a poor job, and misconstrues the applicable laws, and thus inexplicably does not find sexual harassment occurred. In the IO’s profoundly jaundiced view, things were simply taken out of context. Lockheed Executives back in the United States are made privy to the exoneration, are no longer concerned, and thereafter remarkably promote Mr. X to overseeing the entire Afghan operation.
The female is thereafter transferred to another location, on another base inside the country, but she nonetheless still periodically sees Mr. X, and, each time, she feels demeaned by his long and lascivious looks at her. Until finally, the female quits her job, as she can no longer handle the stress, and contacts a lawyer back in the states. The D.C. lawyer that answers her call is geographically well-connected and thus garners a personal audience with lawyers at the Department of Justice (DoJ). The feds agree to investigate and members from an overseas legal attaché office are deployed.[xiv] Upon questioning, Mr. X is read his rights, which include the crime of sexual harassment under the UCMJ. Mr. X immediately invokes his right to counsel. Critically, four days later, the victim is found with a gunshot to the head. Foul play is suspected. After uncovering compelling evidence of his guilt, DoJ prosecutors indict Mr. X for both murder and sexual harassment. Finally, material facts are uncovered that several Lockheed Martin Executives engaged in a cover-up of the sexual harassment case by failing to institute any compliance program related to workplace harassment.
Finally, Mr. X had a presciently good lawyer that advised his client to relinquish his U.S. passport, which, for the sake of argument, took place immediately after the first incident of sexual harassment. The defense lawyer understood that MEJA could apply pursuant to 18 U.S.C. § 7(9), but that it was inapplicable unless the overseas offense was “committed by or against a national of the United States.” As a result, Department of Justice lawyers contact Department of Defense lawyers, to suggest the U.S. Army prosecute by court-martial.
VIII. Turning to the Court-martial – Jurisdiction of Civilian under UCMJ
Even before MEJA, civilian employees (but not companies) were narrowly subject to courts-martial during a “time of war.” Article 2(11), UCMJ Moreover “all persons serving with or accompanying an armed force in the field” were subject to the Code. Id. In United States v. Barney, 6 U.S.C.M.A. 776 (C.M.A. 1956) the Armed forces’ highest court eagerly welcomed the principle of court-martialing civilians because “the security of the nation may depend on their activities, and they should answer to their immediate protector for any transgression.” As such, Barney explained “it is just as necessary that they be governed by the demands of the military situation as the very troops they serve.” In failing to see MEJA on the horizon, Barney rejected any input by Congress—as it “could make offenses committed overseas by civilians punishable in federal district courts, but such an enactment would have little practical utility.” Id.
Despite this purported lack of “utility” in 2006 Congress historically expanded the jurisdictional net of Article 2(a)(1), UCMJ. This landmark amendment replaced the temporal requirement of “time of war” with “time of declared war or contingency operation.” As a result, “if a civilian is sufficiently integrated into the United States Armed Forces to qualify for court-martial jurisdiction under Article 2(a)(1), UCMJ, then that same person is sufficiently integrated, too, the Fifth and Sixth Amendment rights embedded in the UCMJ.” United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012) In affirming appellant’s conviction, the Ali conceptualized the event a “contingency operation” within 10 U.S.C. § 101(a)(13)(2000) and averred appellant was “serving with or accompanying an armed force” and that said civilian had “been in the field.” Id.
In sum, the Ali held these prerequisites satisfied, and thus Article 2(a)(1), UCMJ was deemed constitutional. This is a remarkable conclusion as Ali was a non-citizen, the alleged victims were non-citizens and the underlying abusive events occurred at Abu Gharib. In retrospect, Ali is perhaps a fine example of judges wanting to hold someone responsible for Abu Grab debacle at any price—as Ali effectively warns that any foreigner that “moved with a military operation” within theatre by military aircraft and vehicles may be court-martialed.
In this regard, in harking back to our hypothetical scenario, Ali tells us that Mr. X’s non-U.S. citizen status will not keep him from being subjected to being brought before a court-martial to face murder and sexual harassment charges, although as the next sections explain, this may not be without some silver linings. But before addressing how a foreign civilian would fair in a court-martial, one might first examine, in comparison, how Soldiers (or U.S. citizens) might fair in civilian federal court.
VIIII. Federal Judicial Turf War and the Bias Against Court-Martial
Federal prosecutors may seek to autonomously assert MEJA to hail retired or discharged servicemembers into district court. In one instance, the Sixth Circuit upheld jurisdiction holding “for an ex-serviceman to be subject to prosecution under MEJA, he must: (1) engage in conduct outside the United States; (2) that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States; (3) while a member of the Armed forces subject to UCMJ.” Nicely v. United States, 23 F.4th 1364 (2022) The Court also adopted two additional jurisdictional elements, directly from the language in MEJA, specifically holding (1) a person subject to the UCMJ may not be prosecuted under MEJA unless (1) he or she ceases to be subject to the UCMJ; or (2) an indictment or information charges that he or she committed the offense with one or more defendants, at least one of whom is not subject to the UCMJ.” Id.
Ultimately the Court in Green found MEJA jurisdiction attached because the appellant failed to satisfy the three elements necessary to be released from active duty, namely (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations.” Unites States v. Green, 654 F.3d 637 (2011) citing United States v. King, 27 M.J. 329 (C.M.A. 1989) As appellant wanted to dismiss the civilian MEJA prosecution, he claimed his discharge was invalid for failing to comply with, what the Court ultimately termed “non-essential parts of the clearing process.” As such, the court held appellant was in fact discharged from military service, thus the “decision to prosecute him under MEJA was based on the absence of any other forum in which he could be prosecuted.” Id.
Assuming, arguendo, that the federal government intercedes to “politically” block the prosecution of Lockheed executives by military courts, precedent appears to discount the role of military courts. Again, as Gosa v. Mayden explained “while the jurisdiction of general courts-martial extends to all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with the civil courts.” 413 U.S. 673 (1973)
In sum, judicial opinions are decidedly mixed on whether military retirees may be subject to court-martial remains firmly split between two circuits. In a nutshell, federal civilian courts have held Article 2(a)(6) of the UCMJ —which expands court-martial jurisdiction to include military retirees—is unconstitutional. See, e.g., Nicely v. United States, 23 F.4th 1364 (2022) see also Larrabee v. Braithwaite, 502 F.Supp. 2d 322 (2020)(overturning military retiree’s conviction by court-martial for sexual assault committed after he retired from the U.S. Marine Corps and was transferred to the Fleet Marine Corps Reserve)
In stark contrast to Larrabee, federal military courts take the position that the prosecution of retirees is legally palatable. By way of example, CAAF held “Court-martial jurisdiction over members of the Fleet Reserve does not violate the Constitution, nor does subjecting members of the Fleet Reserve and not retired reservists to UCMJ jurisdiction violate equal protection.” United States v. Begani, 81 M.J. 273, 2021 WL 2639319, at *1 (C.A.A.F. 2021) In a Begani overview of what is really at play here, if a former military member is receiving monthly retirement checks, he is no longer a civilian, as he, as a pensioner, is continually accruing the benefit of military service. Despite this cogent premise, the United States Court of Appeals for the Federal Circuit emphatically distinguished Begani because CAAF “did not consider or otherwise address the question of whether retired military officers acting as civilian employees of a military organization can serve on military correction boards.” Nicely v. United States, 23 F.4th 1364 (2022) “And, even if it [CAAF] had, it would not bind this court.” Id.
X. The Value of the Bill of Particulars – The Accused is on Notice of What?
In United States v. Naik a Indian national worked on a United States military base in Afghanistan for an American contractor called Global Sourcing Solutions which was headquartered in the United Arab Emirates. The prime contractor —AC First LLC— was also a U.S. company. Appellant allegedly committed sexual assault, was thereafter indicted under MEJA, and moved to dismiss the case because MEJA was “facially unconstitutional and unconstitutional when applied to him.”[xv] The Naik court conceded that “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Bouie v. City of Columbia, 378 U.S. 351 (1964) however it then denied relief as appellant’s “employment contract put him on notice that he was subject to U.S. law, “to include the Uniform Code of Military Justice.” As such, Naik held appellant could “reasonably anticipate being hailed into U.S. court.” The take-away is that contractual provisions appears sufficient to convict and imprison foreigners.
An element of the new sexual harassment offense, termed “general article”, will prohibit “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” Id. For one’s edification, these are commonly termed the two “terminal elements.” Id. In addressing what constitutes “conduct that prejudices good order and discipline” one court has stated that such “misconduct must be activity against “good order which affects the condition of tranquility, security, and good government of military service.” United States v. Snyder, 1 C.M.A. 423 (1952) This definition appears an unhelpful tautology.
Under the Sixth Amendment, the “defendant shall enjoy the right to be informed of the nature and cause of the accusation.” In the seminal case of Parker v. Levy, the U.S. Supreme Court expounded upon the “right of notice” and the vagaries and dangers of being statutorily vague. Parker held “void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” 417 U.S. 753 (1974) Nearly 20-years after Parker, CAAF, in United States v. Boyett, 42 M.J. 150 (C.A.A.F. 1994) addressed whether appellant, as an Air force officer, had adequate notice of his potential criminality related to fraternization with an enlisted member. Boyett decided he did “as his pre-commissioning education emphasized that there was a custom against officers “dating” enlisted persons regardless of a supervisory relationship.” Id. Perhaps most notably for our purposed here, Boyett also cited the language in the specification on fraternization, Article 134, UCMJ, which avers “the gist of the offense is a violation of the custom of the armed forces against fraternization.” As an aside, the maximum punishment for fraternization is dismissal from the service, and 2 years in confinement.
Unlike fraternization, there is assuredly no custom related to sexual harassment. In the words of its guidance, the so-called “terms of endearment” to include comments like “honey” “sweetheart” “dear” “stud” or “hunk are clearly too vague. Under the law of statutory interpretation “it is elemental that if words used in the statute convey a clear and definite meaning, a court has no right to look for or impose a different meaning.” United States v. Graham, 16 M.J. 460 (C.M.A. 1983) It is simply ok to say “honey” to a female, as it is to a male, in the southern United States.
Of course, “terms of endearment” may arguably offend, but the likeliness of a criminal conviction should not rest upon the geographic venue of the court. For example, in testing this theory, this author recently travelled to Fayetteville, North Carolina, Home of Ft. Bragg, for a court-martial, where folks repeatedly said “honey” to one another. In stark contrast, as I also deliberately witnessed, this same word was used toward a young female Soldier stationed in Vilseck, Germany who thereafter became deeply irate with me, scolding me in public. In this sense, the subject of some universal custom discussed in Graham seems pipe dream in the context of terms of endearment, where the geographic region, attractiveness of the utterer, and the need to lighten the mood sometimes, even by referring sexual matters, as can be made funny, have coalesced to completely eviscerate any reliable notion of fair notice.
IX. Confronting Sexual Harassment Claims during Military Investigations, Boards and Courts-martial The Takeaway
On December 27, 2023, we, as citizens, will collectively witness a new and sweeping change spread across military justice as it criminalizes “sexual harassment” under Article 134,UCMJ. To date there is no criminal caselaw analyzing what explicit behaviors could constitute “sexual harassment.” Nonetheless, defense lawyers must answer the charges by emphasizing that the “reasonable person” is the applicable standard, and hope prosecutors do not rush the focus on the alleged victim being offended. In this sense, it appears the associated military trainings that folks attend, to include future military jury members, will determine whether your client is found guilty or not. Put plainly, such trainings will seek to establish the “reasonableness standard.”
Perhaps even more important. the ultimate courtroom outcomes may turn on the debate between the defense and prosecution about the most fundamental (if not amorphous and reoccurring) element in military jurisprudence—whether the offending officer’s conduct brought “prejudice to good order and discipline” or otherwise “discredited the armed forces.”
Ultimately, no matter which side of the aisle one sits, federal crimes should not be wholly dependent on the “subjective” perception of the perceiver, but that is precisely where the armed forces seems to be trending. The fact that a uniformed member can be technically sent to confinement for more than a year for violating Article 134, UCMJ for saying the word “honey” is arguably absurd, no matter how often one was trained to never utter it.
[i] See, Federal Criminal Practice: A Military Justice Primer, Stephen Carpenter, Jr., Washington State Bar News, (September 2005).
[ii] Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 EPD ¶ 34, 766 (E.D. Wis. 1984
[iii] Even before NDAA 2022, “sexual harassment” has been a violation of a “punitive” general regulation under Article 92, UCMJ. See, Army Regulation (AR) 600-20, paragraph 7-7. Even so, to date, “sexual harassment” offenses have been infrequently charged. This is perhaps this lack of prosecutorial vigor, which is arguably the intent behind the creation of this new Article 134, UCMJ offense. In fact, the NDAA will create a body of “independent” investigators to spearhead this reinvigorated effort in tackling “sexual harassment.” Within this context, the broad language defining “sexual harassment” will ultimately play the pivotal role in the future careers of countless servicemembers.
[iv] The U.S. Equal Opportunity Employment Commission defines sexual harassment as:
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
[v] Lawrence v. Texas, 539 U.S. 558 (2003)
[vi] Manual for Courts-martial United States, page IV 144-145 (2019)
[vii] Article 134, UCMJ
[viii] “A Military Practitioner’s Guide to the Military Extraterritorial Jurisdiction Act in Contingency Operations.” Army Lawyer, 4 December 2012
[ix] A Military Practitioner’s Guide to the Military Extraterritorial Jurisdiction Act in Contingency Operations.” Army Lawyer, 4 December 2012
[x] Hearing on H.R. 3380, 106th Cong. 17 (2000)
[xi] Major Aimee M. Bateman, A Military Practitioner’s Guide to MEJA in Contingency Operations, The Army Lawyer, (December 2012)
[xii] MEJA also empowers civilian prosecutors to bring cases into U.S. district courts involving contractors in a foreign country. See, United States v. Drotleff, 497 Fed. Appx. 357 (U.S. citizen contractors convicted in U.S. court for involuntary manslaughter for incident in Afghanistan.
[xiii]https://www.google.com/search?q=largest+military+contractors&rlz=1C1SQJL_enUS814US814&oq=largest+military+contractors+&aqs=chrome.0.0i512l3j0i22i30j0i15i22i30j0i22i30l5.7102j0j15&sourceid=chrome&ie=UTF-8
[xiv] There are “63 legal attaché offices — commonly known as legats — and more than two dozen smaller sub-offices in key cities around the globe, providing coverage for more than 180 countries.”[xiv]
[xv] United States v. Naik, 2020 U.S. Dist. LEXIS 16684