Sunday, May 06, 2007

Resource alert

Dana Michael Hollywood, Creating a True Army of One: Four Proposals to Combat Sexual Harassment in Today's Army, 30 Harv. J.L. & Gender 151 (2007).

11 comments:

John O'Connor said...

Thanks for the cite. Wow, lots not to like in that article.

As an initial matter, I agree with the premise that sexual harrassment is a HORRIBLE problem in the armed forces. I think a lot of this stems from systemic factors: lots of "bosses" in the military, from corporals to generals who can exert influence over others; the very high percentage of men in the military ranks; the degree of responsibility given to soldiers without a lot of education and who may be from something of a backward social situation. In that sense, I wonder if the problem of sexual harrassment in the military is worse than in other male-dominated workplaces, such as factories. My sense is that it probably is worse in the military because of the chain of command and obedience factors.

But the solutions proposed are completely wrongheaded (I see the author is a 2006 law school grad so this was probably a seminar paper turned into an article, and the author is apparently so little acquainted with the military that she described herself as a "Judge Advocate General in the Army" -- but I digress).

The article doesn't really make the case that a separate criminal offense of "sexual harrassment" should be created under the UCMJ. It seems to me that Article 133, Article 134, and offenses such as maltreatment of subordinate cover the bases pretty well.

Most ludicrous is the idea that it would be a net positive FOR THE ARMY to have the government cast aside its Feres immunity and for Congress to amend Title VII to cover uniformed military personnel. I'm sure that's exactly what the government wants, to encourage soldiers to sue their superiors and the United States for sexual harrassment, and I can only imagine the effects such a change would have on good order and discipline.

While I agree that the military could use some real cultural change to address the problem of sexual harrassment in the armed forces, that change needs to happen from the top down, through leadership that appropriately treats sexual harrassment as intolerable, and not bootm up by encouraging soldiers to sue their corporates, lieutenants and captains.

John O'Connor said...

Typo alert: "corporates" should read "corporals." And "bootm" should read "bottom."

bill cassara said...

I can't find the article. Can it be linked without violating copyright rules?

John O'Connor said...

It's not on the journal's website at present, though the site does provide PDFs of its issue, so you might check back there in a few days. I pulled it up on Westlaw.

CAAFlog said...

From JO'C:

"(I see the author is a 2006 law school grad so this was probably a seminar paper turned into an article, and the author is apparently so little acquainted with the military that she described herself as a 'Judge Advocate General in the Army' -- but I digress)."

I assumed Dana Michael Hollywood was a guy. And doesn't the reference to "the beautiful, caring, intelligent women in my life" in the biographical footnote suggest the same?

2006 graduate of William & Mary's law school? It sounds like this was probably a seminar paper for Professor Lederer's class. Perhaps Hollywood was a classmate of Brian C. Hayes, whose article we previously discussed. Brian C. Hayes, Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007).

CAAFlog said...

I have confirmed that Mr. Hollywood is Mr. Hollywood.

John O'Connor said...

My apologies to Mr. Hollywood.

And, apologies to CAAFlog's analysis above, I don't know that men have a corner on the market for having beautiful, caring, and intelligent women in their lives.

I guess I assumed Mr. Hollywood was Ms. Hollywood because, while I know that Dana can be a man's name, I don't know any men named Dana. And I remember Dana Plato well from Diff'rent Strokes.

CAAFlog said...

"I don't know that men have a corner on the market for having beautiful, caring, and intelligent women in their lives."

True, JO'C, true. But I hope it isn't sexist to observe that that phraseology seems far more likely to be pecked onto a keyboard by a man than by a woman.

John O'Connor said...

I guess it's a blind spot with me since all of the women in my life are ugly, uncaring, and dumb.

Just kidding, honey.

Mike said...

Hey, Dana's a buddy of mine...

For what it's worth, he's about 40, has multiple other degrees than the J.D., joined the Army as an E-1, and has now worked his way up to be an O-3 in the Judge Advocate General's Corps. He's currently serving in the 2nd Division in Korea, for those of you who know what that means. So, he definitely has his "military experience" bona fides.

He also happens to be one of the smartest, hardest-working guys I know, and I'm a practicing attorney who went to a top-but-not-Ivy college and have a met a lot of folks.

Other than that, in the spirit of the marketplace of ideas, feel free to debate his article. You also ought to know, this was not an article he developed from a symposium -- this was his note, which he subsequently added to for publication.

Brian Hayes said...

I read with interest the comments on Captain Hollywood's note. Contrary to one poster's speculation, Dana was not a classmate of mine. Nor did I enroll in in Colonel Lederer's military justice seminar, so I can't comment on the origins of Dana's article. However, it appears Dana and I drew vastly different conclusions about the appropriate response to the perceived sexual harrassment "crisis" in the armed forces. Where he saw dramatic under-reaction to complaints of harrassment, I saw an extreme over-reaction -- witchhunts, to put it bluntly -- in the handling of Aberdeen, Tailhook, and the service academy scandals.

My article focused on the UCMJ's failure to prevent prosecutions based on the convening authority's self-interest. These are undeniably rare (as the article stated), but devastatingly unfair when they occur. In short, this is a genuine (although uncommon) problem for which the UCMJ provides no solution.

In contrast, a plethora of UCMJ articles are applicable to sexual harrassment. I am aware of no case in which a commander was unable to effectively punish an act of harrassment due to a statutory flaw. As a result, I see no mandate for change.

Second, as a former commander, I am categorically opposed to soldier-on-soldier litigation or to encouraging the handling of complaints outside the chain of command(except in the rarest of emergencies). These concepts are antithetical to good order and discipline. The "right to sue" and to pursue union-style grievances must be among the few rights that servicemen and -women surrender when they take the oath.

But this is only respectful disagreement with Captain Hollywood's conclusion. Dana was widely respected at William and Mary as both a scholar and a soldier. I expect that any careless references in the Harvard article are due to an editor unfamiliar with the military, and not any lack of Army "street cred" on the author's part.

Brian Hayes
MAJ, JA, USAR