Executive Branch

The Dangerous Cycle of Pentagon Sexual Assault and Harassment ‘Lowest Level’ Policy

Ashley Merryman
Wednesday, April 12, 2023, 8:16 AM

The Defense Department treats sexual harassment as a “human relations” issue, not a crime: It’s a decades-old, outdated policy that endangers service members—especially those at the military academies.

The United States Naval Academy in Annapolis, Maryland. (Chad Runge / U.S. Navy, https://flic.kr/p/Dbg6AC; Public Domain)

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On March 10, the Department of Defense issued its newest report on the prevalence of sexual assault and sexual harassment at the nation’s military academies. The report revealed that perpetration of sexual assault and harassment are at an all-time high and that there’s been little meaningful progress in preventing or prosecuting sexual misconduct. 

This should come as no surprise since Defense Department policy discourages the formal reporting of sexual harassment. It does so even though the department itself admits there’s a continuum of harm between sexual harassment and sexual assault—in other words, that the first leads to the second. Still other researchers have concluded that the department’s policy likely facilitates both crimes. 

While the policy endangers all service members, nowhere is it more destructive than at the military academies. It hangs over cadets’ heads like Damocles’ sword—threatening to destroy those who report wrongdoing faster than those who perpetrate the crime. Of this, there is no doubt. Because they’ve told us it does.

The core of the problem is that the Defense Department believes “sexual harassment is a human relations issue,” not a crime. (Notwithstanding the fact that perpetrators of sexual harassment may be charged with a crime under at least 15 articles of the Uniform Code of Military Justice or UCMJ. And that was true before the creation of the new UCMJ crime of sexual harassment.) Therefore, Pentagon policy is that almost all allegations of sexual harassment should be resolved without any formal complaint, investigation, or consequence.

To understand the full impact of this policy, consider the following: During the coronavirus pandemic, 245 Air Force cadets and 73 West Point cadets were accused of cheating on exams. Hundreds were disciplined, and 30 cadets were expelled for cheating. 

By contrast, approximately 1,136 young men and women at the military academies were sexually assaulted during the 2021-2022 academic year. Only 170 victims—the majority being teenagers—reported their assaults. Of the cases adjudicated within the reporting period, 11 perpetrators were charged with a crime. Four received administrative discharges, and about a dozen others were being investigated or disciplined for misconduct.  

Also that year, almost 4,000 cadets and midshipmen—63 percent of the academies’ women and 20 percent of the men—were victims of sexual harassment. According to the department’s analysis, there is more sexual harassment going on at academy units than at 95 percent of all military units surveyed. But only 40 complaints were made to officials, and this year’s report fails to identify even one disciplinary action taken against a perpetrator of harassment. Instead, the analysts explained, “[the Defense Department] encourages concerns of sexual harassment be resolved at the lowest appropriate level; therefore, most sexual harassment issues that are reported to a member of the chain of command will be worked within that chain of command and a complaint is not filed.”

Decoding the department’s language, the “lowest appropriate level” means that most harassment victims are told to take care of their victimization on their own, by directly confronting the perpetrators. 

When meeting with one’s harasser, the Navy’s policy admonishes victims, “[u]se common courtesy and ensure that the approach is not disrespectful. Consider writing down thoughts prior to approaching the alleged offender(s) involved.” 

Imagine if police told victims of any other crimes that it was up to them to confront the alleged offender(s). Your car was stolen? Go ask the thief to return it. Remember to be polite. 

From this perspective, it seems difficult to fathom how such a policy was adopted. However, it’s important to understand that the military academies follow the lead of the larger military and to consider when this policy was adopted and took root: 1988-1994.

During those years, three events took place that, had each happened on its own, would have had a huge effect on the military’s handling of sexual assault and sexual harassment. But they happened virtually at the same time, and the combination had an exponential impact. 

First, there were increasing numbers of women working in the military—including at the academies—and sexual harassment was a continual problem. When a 1988 survey revealed widespread sexual harassment within both military and civilian workforces, the then-secretary of Defense issued the first department-wide definition of sexual harassment.

By July 1991, every service was required to combat sexual harassment through a range of programs, including policy statements and annual reports addressing the issue, training to identify and prevent it, and making “prompt, thorough investigation and resolution a priority in every sexual harassment complaint.”

But there was a conflict within these efforts. As much as officials decried harassment, there was also a steadfast belief that harassment was part of the military’s “culture,” to the extent that service women often accepted it as an inevitable part of military service—another form of a war wound. 

 To resolve the tension between sexual harassment as a crime and a human relations annoyance, the Pentagon came up with what must have seemed like a Solomonic answer. Egregious cases of sexual harassment could be prosecuted, but the majority of incidents were presumed to be minor, and these should be handled informally, “at the lowest level.” 

The “lowest level” policy was a familiar concept in the military. It requires that, even in a culture that manages every moment of its members’ days, service members should still work out minor problems on their own, without requisite procedures, and without supervisors. It’s also seen as an administrative necessity. Without it, even trivial arguments could have to go up the entire chain of command for adjudication. 

If telling someone to “knock it off” worked in other interpersonal contexts, it was presumed to work in this new one. 

Then came Tailhook ’91.

In October 1991, news reports began revealing the violence and lurid events that had transpired during Tailhook ’91, a military industry conference at which 83 women and seven men were sexually assaulted. A 1993 investigation concluded that 140 aviators had committed indecent exposure, assault, or lied to investigators under oath. 

Tailhook ’91 would have been shocking on its own, but it had even more impact since the first revelations came to light just two weeks after Anita Hill stunned the nation with allegations of sexual harassment against Clarence Thomas, then a nominee to the Supreme Court. And Hill’s testimony began a new national dialogue of sexual harassment that is still influential today. 

 The tension between the lowest level practice of letting most people off with a slap on the wrist and criminality was in full view during Tailhook. Ultimately, the then-secretary of the Navy resigned for his handling of the investigation, and dozens received administrative—often career-ending—punishments. But not one person was criminally prosecuted

Following a recommendation by a 1995 task force, the Pentagon reaffirmed that the lowest level approach was one of its primary tools for response to sexual harassment. 

But the evidence against the policy accumulated from the moment it began. In 1993, the Navy researchers conducted the first formal assessment of the policy and concluded that it had, at best, mixed results. Some confronted their harassers, but many were too afraid to do so. The main way they dealt with perpetrators was to hide from them. 

In 2014, Coast Guard prosecutor Bryan Blackmore argued in Military Law Review that the lowest level policy was damaging the service. It minimized sexual harassment’s destructive impact on the force. It was unworkable for prosecutors and confusing to Coast Guard members, since it was largely unclear when something was assault that should be reported and harassment that shouldn’t be. Blackmore advocated that the lowest level policy should be replaced with a clearer requirement that “[c]ommanding officers and officers in charge have a responsibility to investigate all allegations of sexual harassment and to take prompt and effective action.” 

Subsequent researchers have concluded that, even when the lowest level strategy works, it still fails. Because on the rare occasion when a target is willing to confront a perpetrator, it likely doesn’t end the harassment. Instead, the perpetrator moves on to new victims, and there is no record of their serial perpetration to stop them or even slow them down. 

At the academies—just as with the rest of the military—officials had been dealing with their own sexual harassment scandals and responded by adopting their own lowest level policies. 

For example, the Naval Academy built upon the larger Navy’s self-help ethos with this policy: “Although the preferred method of reporting … sexual harassment complaints is at the lowest appropriate level and via the chain of command, the Navy provides the following hotlines for confidential counseling….” Teenagers—thousands of miles away from home, cut off from family and friends—are told they shouldn’t bother calling an anonymous advice hotline for advice. They know the answer. They’re on their own. 

In the 1990s, Government Accountability Office (GAO) researchers at the academies concluded that sexual harassment was rampant and most went unreported because the cadets and midshipmen were taught to resolve complaints at the lowest level. Those who did otherwise were considered “crybabies” by the student and officer chains of command.

From 2005 to 2019, Defense Department researchers conducted biannual focus groups with cadets and midshipmen. Again and again, the cadets and midshipmen (and academy faculty and staff) expressly referred to the lowest level policy as a reason they didn’t report sexual harassment and sexual assault. Technically, the lowest level policy only applies to sexual harassment, not sexual assault. But the services define sexual harassment as including unwanted physical contact, so confused cadets and midshipmen often apply it to sexual assault as well.

As a Coast Guard Academy faculty member once explained, “We … train [cadets] from a very early stage not to use the formal systems here … do it all informally. Talk to them. Find an alternative thing that doesn’t get documented. Never [do] anything that gets documented.” 

One freshman told Defense Department researchers in 2019, “They always tell us, ‘Handle it on the lowest level possible.’ So instead of maybe reporting [sexual assault], you talk to your friends and maybe you have your friends talk to the perpetrator.”

At the Naval Academy, midshipmen reported that they feared if they didn’t “keep it at the lowest level” and reported an assault, academy leadership would punish them for generating bad publicity and classmates would punish them for hurting the perpetrator’s career. 

At West Point and the Air Force Academy, cadets have implied that they would likely never report anything short of rape. And the pressure to resolve everything at the lowest level was so intense that the researchers expressed concern that the policy was limiting the cadets’ ability to even perceive the gravity of these incidents.

A 2023 study in Personnel Psychology validated that concern. In that paper, Cornell University scholars found that when people work in environments high in sexual harassment, they become less able to recognize even blatant incidents of sexual harassment as such. And, in a conclusion that should give every military leader pause, this blindness persisted after they left their early jobs and “has the potential to endure throughout their career trajectory.” 

In other words, cadets who dismiss the dangers of sexual harassment while at school may never understand its seriousness—for their entire careers as military leaders. 

In 2021, RAND, the Independent Review Commission on Sexual Assault in the Military, and the GAO each concluded that the lowest level policy was related to the perpetration of sexual misconduct, but none made the obvious recommendation: 

End the policy. 

From 1993 to 2011, the policy of “Don’t Ask, Don’t Tell” was created, lauded, castigated, and died, but when it comes to sexual harassment, the military has yet to update its thinking.

It’s time. The lowest level policy can and should end throughout the military. At least, start at the academies. 

Getting rid of the lowest level directive doesn’t mean every stupid joke results in a full investigation. It means that, as Blackmore wrote almost a decade ago, military officials should listen to allegations seriously and deal with them appropriately. It means teenagers shouldn’t bear the primary responsibility for ending their victimization. It means college students shouldn’t be the arbiters of sexual misconduct. 

It means leaders lead. 

As it stands now, military leadership may claim there is “zero tolerance” for sexual harassment, but as long as the lowest level policy is in place—as long as a cadet is more likely to be expelled for cheating than for committing a UCMJ crime—then it is tolerated.

If that’s the case, how will anything change—either at the academies or when these young officers are charged with leadership positions of their own?

Ashley Merryman is an author and attorney. With Po Bronson, she’s written two New York Times bestsellers, NurtureShock and Top Dog: The Science of Winning and Losing, bylines for many national publications, and The Sherwood Report, her newsletter on the science of leadership. From 2018-2020, she served at the Pentagon, first, as the Special Advisor on Diversity and Inclusion to the Chief of Naval Operations, and then as Special Advisor for the Department of the Navy’s Sexual Assault Prevention and Response Office. Merryman is currently a Non-Resident Senior Fellow at the Joint Special Operations University. The views expressed in this piece do not reflect that of the Defense Department or the Joint Special Operations University.

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