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Criminal Law Practitioner

Adam J. Crane

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.

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