In its February 2016 report, the Judicial Proceedings Panel (JPP) made recommendations for proposed amendments to Congress’s favorite UCMJ tinker-toy, Article 120. For analysis of the provisions regarding consent and “incapable of consenting”, see my previous post. This installment will discuss two additional troubling provisions regarding use of rank or authority.
RANK OR AUTHORITY
It is a sad and undeniable fact that certain members of our force abuse their rank for selfish or nefarious purposes. To address this concern, the JPP proposes to append Article 120(b)(1) with a new theory of liability which would allow prosecutors to demonstrate a putative victim was coerced “by using position rank, or authority to obtain compliance by the other person.” Unfortunately, this proposed change would create opportunity for abuse which is just as likely to erode good order and discipline.
For as long as human societies have organized themselves beyond subsistence agricultural families, we have had jobs and we have had bosses. For as long as there have been bosses, there have been those that use their authority inappropriately for any number of ends, including sexual gratification. In the case of the military, strict rank delineations and broad authority over the lives and well-being of subordinates create unique potential for abuse. Fortunately, 2016 is not the first time that the military or legislatures have considered this issue.
Where junior Soldiers, Sailors, Airmen or Marines feel harassed, unsafe, or otherwise mistreated by a superior, they are routinely encouraged to avail themselves of “open-door” policies or complaints through the Inspector General, Equal Opportunity program, Sexual Harassment/Assault Response & Prevention designees, Article 138, the so-called “nuclear option” of a Congressional Inquiry, and a host of other resources. As those who have held any position of leadership have doubtlessly encountered, these programs provide ample avenues to air grievances or remedy imbalances created by rank, to the point they often create their own opportunities for abuse in the event of personality conflicts or worse have gone awry. The abbreviation for Sexual Assault Response Coordinator or SARC has been coined as a verb, which is to say that unless a favorable action is taken for a person, she might “SARC” their male superior by filing a complaint of sexual harassment or a wrongful touching.
Experience and research have yet to reveal a situation in which an assailant went unpunished because exploitation of rank was not an enumerated theory under Article 120. In the first instance, Article 120(b)(1)(A) already provides a broad (and broadly interpreted) theory for instances in which a perpetrator commits a sexual act by “threatening or placing that other person in fear”. Prosecutors have no lack of success using this provision to encompass threats or fear which involve the use of rank, position, or authority.
Furthermore, offenders who seek to misuse their authority are regularly charged with Article 92 for “Inappropriate Relationships” which violate the proscriptions of service regulations. For example, Army Regulation prohibits “all relationships between Soldiers of different grade […] if they […] involve or appear to involve the improper use of grade or position for personal gain, [Or] are, or are perceived to be, exploitative or coercive in nature.” (AR 600-20 para 4-14). Each of the Services has its own corollary that are broadly inclusive and clearly encompass any sexual activity.
SLIPPERY SLOPE TOWARD STRICT LIABILITY
The potential danger in creating this explicit provision is that it infuses a new layer of subjectivity. In any situation involving individuals of different rank the proposed additional theory of liability will create an obvious and convenient encouragement to claim or assume that rank played a coercive role. In the case of Article 92 charges, it is disturbingly common that panel members look no further than rank disparity in resolving the question of coercion or perception. Military courtrooms frequently echo with the familiar refrain, “Of course it was wrong, it’s a SGT and a PFC!” No matter how explicitly panels could be implored to investigate whether there was actual intent to abuse one’s position, it is hard to get beyond the natural impulse to want to punish and label a defendant as a sexual offender for poor judgment engaging with anyone of a lower rank. A provision rendering rank disparity a sexual offense provides implicit license to assume that a putative victim felt coerced, regardless of the actions or intentions of a defendant. Such assumptions would be dangerous to import to Article 120, which is not only the death knell of a military career, but a permanent yolk for those convicted as a sex offender.
The reality of this amendment is that it does not account for scenarios in which ranks are the same, but one may be perceived to have positional authority. Unless and until we’re willing to take the (questionably constitutional) step of prohibiting all sexual activity between Servicemembers, we are accepting that relationships between our co-workers will always involve a complicated overlay of power dynamics. Unless there is a determinate situation in which the tools available to the prosecution prove insufficient, civilians should be wary of the unintended consequences of this sort of provision.
In the same subsection there is a qualifying recommendation against adopting a “strict liability” theory that would criminalize consensual sexual relationships between basic training instructors and trainees. The recommendation astutely points out the unwarranted disparity of creating such an offense with no analog in the civilian world, especially an offense requiring sex offender registration for any sexual conduct between two consenting adults. Still, despite this recognition of the harms presented by a strict liability theory, the JPP does not seem to recognize that its proposed rank-based theory of liability drives towards the same cliff.
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