Harassment in Military Justice

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More and more we get calls and questions about what harassment in the military is.

The cynic in me is inclined to answer that harassment is just about anything that anyone claims it is. Seriously.

At least that is the first blush at the answer.

I cannot count how many investigations I have reviewed where the investigating officer was appointed to inquire as to whether an allegation constituted actual harassment and failed to use any actual standards or definitions in policy. More and more, the “analysis” is devoid of any and merely caters to how a person claims that behavior made them feel.

There is no real truth-seeking into whether the claimed behavior even occurred. They seem to skip over this critical first step altogether.

Even assuming there is sufficient information to warrant a finding that the underlying behavior happened, there is an assumption that because the person claims to be offended that the behavior was, in fact, harassment.

Thankfully, there are standards. Mostly. I say mostly because many of the command policies about what constitutes harassment have become more and more vague. Take, for instance, the policy about what constitutes bullying… I’ll leave that specific topic for another day.

What I can say about what is harassment is that it is more than a one-time occurrence. Let’s repeat that for anyone who may care. A one-time event does not ordinarily constitute harassment under any legal definition. In fact, the Supreme Court set out a standard for equal opportunity work-place harassment as needing to be severe and pervasive.

A behavior’s severity goes to how egregious or serious it was. Did it shock the conscious or was it merely a vaguely bad idea.

A behavior’s pervasiveness goes to how often it occurred. Hint: once isn’t enough.

In military doctrine, they have described harassment as being repeated. See? There’s the part about it being pervasive, explained in a slightly clearer way.

Despite the requirement for a behavior to occur more than once, I have read countless investigations where an investigating officer made a derogatory finding that a one-time comment constituted harassment.

To be clear, can a one-time comment be a bad idea? Sure. Can a one-time comment be inappropriate? Absolutely. Can a one-off comment be offensive? Certainly. But that does not make a one-time comment constitute actual harassment.

The idea of what is harassment should evoke in the person events or actions that are harassing, which necessarily conjures the notion that it keeps happening or it keeps having a significant impact on the person. A one-time event generally won’t qualify.

When faced with examining derogatory findings about harassment, make sure that you are looking to the standard that the finding is claiming to have been violated.

Hint: it doesn’t stop with the individual’s personal belief and feelings

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