Sexual Harassment is Not a Crime: Aligning the Uniform Code of Military Justice with Title VII

Abstract

Sexual harassment and sexual assault are ongoing problems in the military. The Department of Defense responded in 2019 with sweeping changes in how the military handles sexual misconduct, including a proposal to criminalize sexual harassment in the Uniform Code of Military Justice (UCMJ). This Article, co-authored by an expert on workplace sex discrimination and a former military officer, responds to this proposal. We argue that sexual harassment, however reprehensible, is not criminal conduct. Moreover, criminalization is likely to undermine the military’s efforts to prevent and punish sexual harassment by raising the stakes for the involved service members, thereby deterring reporting, and by imposing a high evidentiary standard. Building on these insights, we propose a set of reforms to the UCMJ aimed at aligning the military justice system with civil employment discrimination law. These proposals include assigning independent authority to investigate and discipline sexual harassment outside the chain of command, using administrative actions that employ a civil burden of proof to adjudicate sexual harassment complaints, and making compensatory damages available to service members for economic and psychological injuries caused by sexual harassment. The military maintains that preserving good order and discipline justifies its independence from the reach of civil courts and law. Federal courts have obliged by holding that Title VII does not cover uniformed military personnel. In exchange for this independence, the military justice system must provide the basic protections of the civilian justice system.