This is the third post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article that focuses on the Coast Guard’s sexual harassment policies while discussing a topic that is broadly applicable to all of the military services, Coast Guard Lieutenant Commander Bryan R. Blackmore suggests that:

The sexual-violence continuum provides a clear, straightforward conceptual model in which service members can understand the nature of sexual violence and how sexual harassment and sexual assault fit within the overarching construct of sexual violence. Rather than solely focusing on sexual harassment as a discrimination issue, the Coast Guard should view sexual harassment as offensive conduct within a continuum of sexual violence. In particular, by viewing sexual harassment as part of a continuum of sexual violence, it provides a framework from which the service can view all behaviors that enable, or serve as a precursor, to sexual assault.

Bryan R. Blackmore, Sexual Assault Prevention: Reframing the Coast Guard Perspective to Address the Lowest Level of the Sexual Violence Continuum—Sexual Harassment, 221 Mil. L. Rev. 75, 105-106 (Fall 2014) (available here).

Seeing an “artificial distinction between sexual harassment and sexual assault” in Coast Guard policy, the author finds that “Coast Guard policy is drafted in a manner to view sexual harassment as discrimination and sexual assault as criminal conduct. This oversimplification of the nature of sexual harassment minimizes the fact that sexual harassment is also misconduct, and it can be criminal conduct as well.” Blackmore, supra, at 116.

The article’s focus is sexual harassment (the lower end of a sexual-violence continuum), while military justice is more often focused on sexual assault (the higher end of such a continuum). But I think there’s a large grey area in the middle where conduct traditionally viewed as sexual harassment is chargeable as sexual assault under the UCMJ. In particular, the current version of Article 120 defines the term “threatening or placing in fear” (an element of numerous sexual offenses) as:

(7) Threatening or placing that other person in fear.—The term “threatening or placing that other person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.

Article 120(g)(7), 10 U.S.C. § 920(g)(7) (2012) (emphasis added). This definition is a significant expansion of language found in the prior version of Article 120 (enacted in 2006):

(A) In general. The term “threatening or placing that other person in fear” under paragraph (1)(A) of subsection (c) (aggravated sexual assault), or under subsection (h) (abusive sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.
(B) Inclusions. Such lesser degree of harm includes—
(i) physical injury to another person or to another person’s property; or
(ii) a threat—
(I) to accuse any person of a crime;
(II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule; or
(III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3260-3261 (2006) (repealed by Pub. L. 112–81, § 541, 125 Stat. 1298, 1404 (2011)).

Both statutes criminalize the abuse of military position to enable sexual activity (what might be seen in the civilian context as quid pro quo sexual harassment), with the current statute reaching to conduct that doesn’t involve the abuse of authority.

Ultimately though, the article’s focus is more narrow. The author addresses the Coast Guard’s separate approach to sexual harassment and sexual assault, suggesting structural change:

Currently, the Coast Guard’s unity of effort in combating sexual assault is not maximized due to the separation of sexual harassment and sexual assault prevention efforts. To truly have a unity of effort, the Coast Guard must integrate these two efforts. This requires removing sole responsibility for sexual harassment prevention efforts from the Civil Rights Directorate and combining efforts with the Coast Guard’s SAPR Program Office. Given the relationship between sexual harassment and sexual assault, sexual harassment must be directly addressed to “create a culture intolerant of sexual assault or behaviors that enable it.” From a strategic perspective, the culture change and unity of effort required must start from the top of the organization. Accordingly, the Coast Guard must realign its organization to integrate sexual harassment and sexual assault prevention efforts.

Blackmore, supra, at 119.

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