Is Saying a Fellow Servicemember (Not to Her Face) Is a "Slut" a Crime in the Military?

From U.S. v. Truitt, decided earlier this month by the U.S. Coast Guard Court of Criminal Appeals, in an opinion by Judge Kurt Brubaker, joined by Chief Judge Lane McClelland and Judge Herbert Claiborne Pell:

In this case, we examine the boundaries of the Coast Guard's punitive order prohibiting sexual harassment. Appellant was the leading petty officer of Coast Guard Sector San Francisco's machinery technician shop. She was in a locker room with Machinery Technician Second Class (MK2) TC, who had recently joined the shop. The two were alone, chatting as they changed clothes. While talking about people within the shop, Appellant referred to Seaman (SN) SA, a junior enlisted member of the shop, as "[a] sector slut." MK2 TC testified she found the comment offensive and was "shocked," but said nothing until, about three weeks later, she relayed the comment to SN SA.

During a meeting with junior enlisted members of the shop, Appellant asked whether they felt they could trust her. SN SA said she did not because she heard what Appellant had called her. After the meeting, Appellant said, "You know I didn't mean it. You're like a little sister to me." …

A military judge, sitting as a special court-martial, convicted Appellant of … violating ALCOAST Commandant's Notice (ACN) 003/20, dated 7 January 2020, by sexually harassing SN SA. [Discussion of other charges, related to unrelated misconduct, omitted. -EV] …

ACN 003/20 provides:

Definition: sexual harassment is unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature, when:

1. Submission to such conduct is made either implicitly or explicitly a term or condition of employment;
2. Submission to or rejection of such conduct is used as a basis for employment decisions; or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. This definition also includes unwelcome display or communication of sexually offensive materials. Physical proximity is not required. Conduct may occur telephonically, virtually, or by way of other electronic means.

At issue here is whether Appellant's comment to MK2 TC was "other conduct of a sexual nature" that "unreasonably interfere[d] with [SN SA]'s work performance or create[d] an intimidating, hostile, or offensive working environment." … ACN 003/20's language defining "sexual harassment" is obviously transplanted from the Equal Employment Opportunity Commission's (EEOC) Guidelines on Discrimination Because of Sex, which states:

Harassment on the basis of sex is a violation of section 703 of title VII.⁴ Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment….

Under [sexual harassment precedents], contrary to Appellant's assertion, the use of a sexual epithet such as "slut" may constitute "other conduct of a sexual nature." See, e.g., Forrest v. Brinker Int'l Payroll Co., LP (1st Cir. 2007) ("A raft of case law … establishes that the use of sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,' 'whore,' and 'bitch,' … has been consistently held to constitute harassment based upon sex."); Andrews v. City of Philadelphia (3d Cir. 1990) ("[T]he pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment."). Nor … does the use of such an epithet need to be accompanied by conduct implying sexual desire ….

However, to rise to the level of unlawful harassment, such conduct "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." … The evidence establishes a single instance of using the word "slut" to describe a junior enlisted servicemember in a one-on-one locker room conversation with a fellow petty officer.

We assuredly do not condone this behavior. Labeling someone in this sexually demeaning manner, as the Government aptly put it in oral argument, is offensive, contrary to administrative policy, and could, in the right circumstances, rise to the level of criminal sexual harassment under the order. Those circumstances, however, are absent here. This was a single instance of uttering an offensive epithet to a third person….