UNLAWFULFRATERNIZATION

MILITARY LAW – WEEK 4

JAY CANHAM

Any over-familiarity that erodes the senior-subordinate relationship.

FRATERNIZATION

The crime of fraternization interferes with a unit’s ability to accomplish the mission.  Unduly familiar relationships between seniors and subordinates are:Contrary to military custom Do not respect the roles each party required

to play in obtaining mission accomplishment.Call into question the ability of the senior to

lead and to make impartial decisions.

UNLAWFUL FRATERNIZATION

Actual or apparent preferential treatment will destroy a unit by: Compromising the chain of command by

an erosion of respect for the senior leaders; and

By creating the appearance of favoritism, which in turn destroys morale.

Hindering the ability of a leader to perform by undermining his or her command authority and calling into question a senior’s objectivity; and

By creating situations in combat that could result in lives being placed at risk.

THE EFFECT FRATERNIZATION HAS ON A UNIT

“One-step” Method of Prosecution: Need only prove the relationship exists. Said

relationship is presumed to be prejudicial to good order and discipline.

Exception: Chief Petty Officer-Junior Enlisted

TRADITIONAL FRATERNIZATION: OFFICER AND ENLISTED

Officers and Officers or Enlisted and Enlisted.“Two-step” Method of Prosecution:1. Need to prove relationship existed; and 2. Need to prove an unduly familiar

relationship is actually prejudicial to good order and discipline.

MODERN FRATERNIZATION

Gender neutral: Does not have to involve intimate relationships between members of the opposite sex.

 Junior Member’s Accountability . Traditionally,

the senior was the one held accountable. Under current policies, the senior has primary responsibility for deterring fraternization, but both parties are now held accountable!

DYNAMICS OF FRATERNIZATION

Special Relationships. Commands have also defined unlawful fraternization in regards to their own special needs. Staff/Instructor-Student Relationships. Recruiters-Recruits/Applicants Service Members who are Married

DYNAMICS OF FRATERNIZATION

Prohibited Personal RelationshipsDating & Cohabitation &

Intimate/sexual relationships GamblingProhibited business relationshipsLoaning/borrowing money.Business PartnershipsCommercial Solicitation

FRATERNIZATION

Community functions Religious activities Unit based social functions “Right Arm Night”/ “Boss’s Night” Athletic events Routine, limited business transactions like:Landlord/Tenant relationships One-time transactions like the sale of a

vehicle or home.

“PROPER OR LAWFUL” FRATERNIZATION

1. Counseling and/or an oral/written reprimand; And/or

2. Order to cease improper relationship; And/or

3. Reassignment and/or adverse evaluation report; And/or

4. Non-judicial punishment (NJP) (Article 15, UCMJ); And/or

CONSEQUENCES OF FRATERNIZATION

5. Impose a bar to reenlistment; And/or 6. “Flagging” – puts a halt to all favorable

personnel actions for a Service-Member (i.e. promotion, awards, and schooling).

7. Administrative Separation. 8. Courts-Martial

CONSEQUENCES OF FRATERNIZATION

A violation of Article 92 (Failure to Obey Order or Regulation).

A violation of Article 134 (General Article – Fraternization)

A violation of Article 133– Conduct Unbecoming an Officer.

PROSECUTING FRATERNIZATION

Constitutional Challenges: Recall the United States Supreme Court opinion in Parker v. Levy, 417 U.S. 733 (1974), which recognized the military’s special need for discipline, against which certain personal liberties may pale.

Freedom of Association. This right is afforded less weight because of the negative impact fraternization has on discipline.

Vagueness. The existence of a long acknowledged custom, and the circumstances surrounding the misconduct, make the prohibition against fraternization specific.

PROSECUTING FRATERNIZATION

Equal Protection. Officers have always been held to a higher standard of conduct

Privacy. No right to privacy when it compromises discipline.

PROSECUTING FRATERNIZATION

Unlawful fraternization is a viable issue in today’s armed forces.

Unique among crimes in that the acts alone are not wrongful per se, but rather becomes a criminal offense because of the circumstances under which they are performed.

Fraternization is a significant leadership challenge for the CO.

SUMMATION

A CO is tasked with developing camaraderie and respect among the ranks while maintaining good order and discipline.

A balancing test of these competing interests requires both a common sense approach and positive leadership to avoid problems caused by unlawful fraternization .

SUMMATION

SEXUAL HARRASSMENT

Sexual harassment is a form of sexual discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

DEFINITION OF SEXUAL HARASSMENT

If a member of a command is being sexually harassed or pressured, it affects the ability of that service member to perform as part of a team.

This particular crime will impact unit readiness and mission accomplishment.

IMPACT OF SEXUAL HARASSMENT ON A MILITARY UNIT

1. Unlawful conduct as a condition of one’s job.

2. Unlawful conduct becomes a basis for career or employment decisions.Examples (1) and (2) above, are sometimes referred to as “Quid pro quo.” This is a Latin term meaning “this for that” and is understood as a “trade.”

3. Unlawful conduct creates a hostile environment

SEXUAL HARASSMENT AND AGGRAVATING CONDUCT IN THE MILITARY

Inappropriate and unacceptable behavior in the work environment and usually meets the following criteria: 1. It must be unwelcome2. Be sexual in nature3. Occur or impact the work environment

ESSENCE OF SEXUAL HARASSMENT

Deliberate actsRepeatedInvolves a specific targetWill adversely impact on work

productivity

CHARACTERISTICS OF SEXUAL HARASSMENT

“Workplace”: An expansive term for military members.

Continuous Conduct: Repetitive as opposed to a single incident of poor judgment.

Non-gender specific: Women can victimize men, and members of the same sex can victimize each other.

ISSUES SURROUNDING SEXUAL HARASSMENT

Peer Harassment: Not restricted to only superiors harassing subordinates.

Reprisals: Services regulations strictly prohibit reprisals against the victim.

False Complaints of Sexual Harassment: Taking disciplinary action against individuals who file false complaints.

ISSUES SURROUNDING SEXUAL HARASSMENT

Physical – Person is touched.Verbal – Conversations containing

sexual innuendoes.Nonverbal – Eye contact or gestures.Environmental – Objects displayed in

the workplace.

GENERAL METHODS OF SEXUAL HARASSMENT

1. The display of sexual material which include sexist cartoons, magazines or pictures;

2. Sexual jokes;3. Comments on appearance of a sexual

nature;4. Threats;5. Whistles or sexual gestures ranging from

subtle hints to direct propositions;6. Repeated requests for dates;7. Physical contact.

EXAMPLES OF SEXUAL HARASSMENT

Counseling Verbal or written warning Other methods …Transfer or

Administrative ProcessingNJP or Courts-Martial

ENFORCING SEXUAL HARASSMENT STANDARDS

Charge mandates:1. That the victim be subject to the

orders of the accused2. That the accused was cruel towards,

oppressed or maltreated that person

Article 93 was modified in 1984 to include sexual harassment

ARTICLE 93 OF THE UCMJ

Bribery or Graft….under Article 134 under the UCMJ.

Dereliction of Duty….Article 92 of the UCMJDisrespect ….under Article 91 of the UCMJ.Provoking Speech or Gestures….Article 117

of the UCMJExtortion….under Article 127 under the UCMJAssault:

Articles 90, 91, or 128 for various assaults; Article 120 for rape; Article 125 for sodomy; Article 134 for indecent acts or exposure;Article 134 for indecent assaults and adultery.

OTHER ARTICLES USED IN PROSECUTING SEXUAL HARRASSMENT

CO/Supervisors/Leaders: Have both the obligation and authority to prevent sexual harassment because Service Regulations in regards to sexual harassment can be summed up in three words: zero tolerance policy.

Educate & Monitor Establish an internal grievance procedure: Take all complaints seriouslyPromptly resolve complaints.Appoint extensively trained people to receive complaints.

Maintaining confidentiality to the extent possible .

PREVENTING SEXUAL HARASSMENT

Under sexual harassment guidelines, the victim is encouraged to inform the harasser. This is not a requirement. This guideline is also an attempt to resolve the

situation at the lowest level. The next step is to bring the issue to the

attention of the supervisor. Some services impose deadlines on the actual complaint in an effort to force timely reporting of a serious crime.

Once the proper supervisor is advised of the problem, the entire chain of command is put on “constructive” notice.

The supervisor has full authority and responsibility to fully investigate the situation.

ROLE OF THE VICTIM IN THE HARASSMENT

PROCESS

UNLAWFUL FRATERNIZATION

MILITARY LAW – WEEK 4

JAY CANHAM