Sexual harassment claims have rocked Hollywood in recent weeks, with more and more people sharing experiences of inappropriate advances by powerful elites like studio head Harvey Weinstein. While sexual assault is a crime everywhere in the United States, for the most part sexual harassment is not. In the United States military however, sexual harassment is a crime, with each Department having a punitive order prohibiting it. For the Navy though, a failure to timely update its sexual harassment policy may mean that the policy self-canceled, allowing Petty Officer Weinstein-like sexual harassment to go unpunished.
The Secretary of the Navy Instructions at Issue
The Secretary of the Navy properly published and promulgated the most recent Department of the Navy Policy on Sexual Harassment (SECNAVINST 5300.26D) on 3 January 2006. This important instruction serves “to provide a comprehensive Department of the Navy (DON) policy for all military and civilian personnel on the identification, prevention, and elimination of sexual harassment and to establish regulations to enforce that policy.” The Navy and Marine Corps have punished scores of Sailor and Marine harassers—through courts-martial, nonjudicial punishment, adverse administrative actions, and punitive or less than honorable discharges—for violations of this policy.
The problem is, on 28 October 2014, the Secretary of the Navy signed “The Secretary of the Navy Directives Policy” (SECNAVINST 5215.1E). Paragraph 4(e) of this policy stated that “[d]irectives reaching the 7-year anniversary that are not in the revision process are self-canceling on that date and continued use requires a full revision to the next available point number.” On 28 October 2014, SECNAVINST 5300.26D (Sexual Harassment policy) was over eight years old, was not in the revision phase, and has yet to undergo a revision or assignment to the next available point number. Therefore, on 28 October 2014, the Navy’s Sexual Harassment policy self-canceled and any adverse punitive or administrative action initiated pursuant to that policy by the Navy and Marine Corps for sexual harassment occurring after 28 October 2014 was unlawful.
Anatomy of an Article 92 Charge
For those unfamiliar with the military justice system, violations of punitive Secretary of the Navy Instructions (like the Sexual Harassment Policy) are charged as violations of Article 92 of the Uniform Code of Military Justice (UCMJ). Article 92 states that any person who “violates or fails to obey any lawful general order or regulation…shall be punished as a court-martial may direct.” The Manual for Courts-Martial goes on further to list the elements of this offense—that is, what must be proved beyond a reasonable doubt for a person to be convicted of the crime. In the case of an Article 92 violation for a failure to obey a lawful general order, the elements are:
(a) That there was in effect a certain lawful general order or regulation;
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the order or regulation.
What is interesting about lawful general orders is that the prosecution does not need to prove a knowledge element—that the accused was actually aware of the general order. In fact, many clients confide in their defense attorneys that they were completely unaware that the orders violation they were charged with was even an order, let alone a crime. For Article 92 violations, the prosecution need only prove that the order was in effect at the time and that it was properly published. This is usually done via the military judge taking judicial notice that the order was valid at the time of the offense. The signing of SECNAVINST 5215.1E (Directives Policy) on 28 October 2014 however, had the effect of canceling the Sexual Harassment Policy and therefore the first element of the Article 92 offense could not be met—there was no longer “in effect a certain lawful general order or regulation.” Without an active order in effect, the Article 92 charge would therefore be dismissed for failing to state an offense.
The Navy’s Position
In June 2017, a Marine gunnery sergeant was facing a general court-martial aboard Naval Staton Norfolk. One of the charges was Article 92, failure to obey a lawful general order by sexual harassing a female servicemember in violation of SECNAVINST 5300.26D. Leading up to the trial, a group of Navy defense attorneys realized the self-canceling orders issue and brought it to the judge’s attention during the guilty plea. Rather than taking judicial notice of the validity of the order (as judges typically do) the military judge adjourned the proceedings and ordered the prosecution to provide proof that the instruction had been under review at the time of the alleged offense. The prosecution returned later with a signed affidavit from the SECNAV Directives Program Manager stating that “although…SECNAV Directives Policy states the instruction is self-cancelling after 7 years, the subject instruction has not been officially cancelled.” She followed, stating the “approval of SECNAVINST 5215.1E was not intended to automatically cancel all instructions that had not been revised within six years.”
Words have meaning, and the words within the policy could not be more clear that instructions would self-cancel automatically. To represent, as the Directives Program Manager did, that SECNAVINST 5215.1E specifically states something, but it does not really mean what is states, creates a confusing conflict. If SECNAVINST 5215.1E does not mean what it says, do other SECNAVINST not mean what they say? The Special Assistant for Military Law within the Office of the Secretary of the Navy identified this cancelation issue and the confusion it created as late as 31 March 2017. In an email to the SECNAV Directives Program Manager she stated:
I think it would be very wise to amend the 5215.1E to exclude punitive instructions from the provision that automaticallycancels instructions after 7 years. The self-canceling provision puts sailors and marines in a confusing place–is an instruction still valid? Is an order still punitive?
The very purpose of published policies, directives, and orders is to eliminate “confusing places,” ensuring servicemembers understand what orders are in effect and what those orders require of servicemembers. On 15 September 2017, the new (current) Secretary of the Navy signed a change transmittal to SECNAVINST 5215.1E, “remov[ing] the self-canceling provision for a directive beyond its 7-year anniversary.” This serves as a tacit admission that, but for the removal of that self-canceling provision, directives actually did—contrary to the opinion of the SECNAV Programs Directives Manager—cancel automatically.
Unlawful Convictions of Sailor and Marine Harassers
In the aforementioned Marine gunnery sergeant case, the prosecution ultimately withdrew and dismissed the Article 92 charge for violating the SECNAV policy on sexual harassment. This indicates they too recognized the validity of the defense counsel’s contention that SECNAVINST 5300.26D self-canceled years earlier. The prosecution likely withdrew and dismissed the charges to prevent the military judge from doing so, which defense counsel could then point to as persuasive authority in all other cases involving violations of that order.
But how many others did not get their charges dismissed since SECNAVINST 5300.26D self-canceled on 28 October 2014? In FY16 alone, the Department of Navy enforced its Policy on Sexual Harassment through courts-martial, nonjudicial punishment, or other administrative means no less than three dozen times (see enclosure 2 to Department of Defense’s FY16 Annual Report on Sexual Assault in the Military). It appears that Sailors were convicted of Article 92 violations for violating the Policy on Sexual Harassment at some level of court-martial in at least six cases that year—with some of them even receiving bad conduct discharges. Of the others receiving “just” nonjudicial punishment for their violation of the SECNAVINST, many of them were subsequently administratively discharged from the Navy with less than honorable discharges based on their violation of the self-canceled policy. In order to receive an other than honorable characterization for commission of a serious offense, the Sailor or Marine must have committed an offense which is triable by a court-martial. Without a valid general order to violate, there is not an offense triable by court-martial meaning other-than-honorable discharges were awarded unlawfully.
Appellate relief may be on the way for those who received a punitive discharge or a year or more of confinement. That leaves dozens of Sailors and Marines with sub-jurisdictional punishments like NJP, adverse administrative entries, or other-than-honorable discharges. Sub-jurisdictional cases–those receiving less than a year confinement or no punitive discharge–do not receive appellate review. If the cases receiving appellate review result in favorable outcomes for the convicted Sailors and Marines, the Department of the Navy should consider forwarding the cases of the other Sailors and Marines to the Board for Corrections of Naval Records for appropriate consideration and relief.
Sexual harassment is a horrible thing. For the victims and for good order and discipline, overturning the convictions of harassers is also horrible. The Department of the Navy should consider these things so horrible that it revisited its Policy on Sexual Harassment at least once in the last decade. Consider how much has changed since the 2006 publication of the Policy on Sexual Harassment. Social media like Facebook, Snapchat, and Instagram have drastically changed the sexual harassment landscape as evidenced by last year’s Marines United scandal. In a time when the Department of Defense faces the ire of Congress over the treatment of women in the military, it is shocking that the Navy could stay asleep at the helm and fail to revise such an important instruction.
The core values of honor and courage sometimes require doing the right thing, even if it is unpopular. Honoring the oath to protect and defend the Constitution, to include the due process rights of the offenders convicted under the expired sexual harassment instruction is the legally correct thing to do in this case, but it will certainly be unpopular. How do you think the Navy will handle this issue?