Sexual assault is a current enforcement priority for the military following the recent killing of a service member by a fellow member against whom she had made several complaints of harassment that went ignored. This tragic case probably had more to do with the specifics of that case than it did a broader problem with the law or the policy, but the current approach has dramatically increased the number of cases and significantly lowered the severity of conduct that could be called “harassment” by commanders.
Substantiating a claim of sexual harassment has (and has always had) two prongs, a subjective prong (that the complainant’s perception of the conduct was offensive) and an objective prong (that a reasonable person would also find the conduct offensive). The analysis is provided below in very general terms, but this area of law has been well-settled for a very long time. The current enforcement posture frequently gets the law wrong because it focuses on the subjective prong and completely disregards the objective. Congress has directed the military to punish harassment more aggressively. Accordingly, leadership is relying more exclusively on the complaint to raise numbers and “solve” the problem. Adding to the bias is the recent addition of sexual harassment to the list of military sexual trauma that could be compensable through the Veterans Administration. Members are now incentivized to use harassment claims as a pretext to bolster their VA claim or take out a supervisor with whom they disagree. If accused, your reputation and accomplishments will be of little use in the face of an aggressive and motivated commander. I had a client accused of sexual harassment tell me that his supervisor said, “Everyone knows it is wrong, but we’re scared to say anything.”
If you’ve been accused of sexual harassment, you need an attorney who knows the law and is willing to challenge the government to follow the law.
Sexual Harassment in The Military
The law of harassment is well settled. Ironically, much of that law was created by government agencies defending claims of harassment by civilian employees. Their work in defending themselves set the bar to show harassment very high. Recently, the government has begun arguing against its own precedent by elevating and emphasizing the subjective prong of the analysis in military cases. The description below is a general one that encompasses the law followed by every government agency and the military. Despite nuances across the services, the basis is all grounded in the same statutory authority as interpreted by the same courts whose decisions apply to the military.
Sexual harassment is a series of acts that involve unwelcome, severe, pervasive, and/or repetitive acts that involve at least one of the following:
- Sexual advances are made toward a particular individual.
- Sexual requests are made toward a particular individual.
- Sexual demands are made towards a particular individual in exchange for benefits within their role.
Within the United States military, there are two types of sexual harassment:
- Sexual harassment that creates a hostile working environment.
- Sexual harassment that affects one’s current rank/position.
Just as an example, if an individual is in a working environment where they are subject to sexual advances and requests, so much so that they cannot accomplish their tasks, then their working environment is a hostile one.
Regarding the second type of sexual harassment, if an individual must perform sexual favors, of one sort or another, to maintain their role or move forward, then they are experiencing quid pro quo sexual harassment.
Someone who is accused and then found guilty, of sexual harassment can:
- Receive a bad conduct discharge.
- Lose some of their benefits.
- Have their rank reduced.
Other consequences can apply. No matter what, though, the repercussions are severe and will significantly affect one’s career within the United States military.
Proving Sexual Harassment in The Military
A wide variety of different types of proof can be, and often are, used to prove sexual harassment. Some of the most notable of these different types of proof are as follows:
- Testimony from witnesses who were present when the sexual harassment occurred.
- Text messages.
- Videos and/or photos.
- Social media posts.
- Email messages.
Every single one of the above can be brought forth to show that sexual harassment has occurred. Because the military is focusing on the subjective prong, access to the statements of “victims” and witnesses by the defense is critical. Military authorities generally feel that they are violating some non-existent privacy interest of those witnesses when they turn an investigation over to an accused, so they will generally fight to prevent that from happening. An experienced attorney can help get this important information. Success here is far from guaranteed, but we can help you tell your story even without a copy of the investigation.
Defending Yourself Against a Sexual Harassment Accusation
A wide variety of different defenses can be employed in order to demonstrate that an accused is not, in fact, guilty of the sexual harassment that they have been accused of.
Out of all the defenses that can be employed about accusations of sexual harassment, the following tend to be the most common and the most effective:
- Demonstrating that the alleged harassment did not occur through the use of evidence.
- Demonstrating that the alleged harassment was, in fact, a series of misinterpreted interactions or statements not intended to harass.
- Demonstrating that the alleged harassment was consented to by the alleged victim of sexual harassment.
- Demonstrating that the alleged harasser was unaware of the fact that their actions could have been considered sexual harassment.
Each of these defenses can be employed. But the best defense is the defense that the accused and their military lawyer determine to be most productive, given the facts of a particular case.
Speak With A Norfolk Military Defense Lawyer Today
A sexual harassment accusation is a very serious matter. Speak with a Norfolk military defense lawyer at The Griffin Law Firm today, and we will assist you in obtaining the best possible legal outcome.