Women, Sex, and the Military
by Dr. Jeffrey P. Whitman
With the end of the Cold War, the US military finds itself facing a number of institutional challenges. Some of these challenges were highlighted in the most recent Quadrennial Defense Review, and included such issues as defining the mission of the military in light of recent global changes, the weapon systems and force structure needed to accomplish that mission, and how to prioritize resource allocation between weapons acquisition and force structure. While perhaps not the most important challenge facing planners (particularly in light of the major issues raised by the Quadrennial Defense Review), the integration of women into the military continues to be a thorn in the side of the military leadership, capturing the biggest headlines and the most public debate. Furthermore, some of the questions raised and policies adopted in the process of integrating women could potentially produce major changes in how American society views and interacts with the military. Over time these changes, if not handled properly, could turn out to be detrimental to both the military and the society it serves, perhaps even overshadowing the allegedly weightier issues highlighted in the Quadrennial Defense Review. In any case, the integration of women is a topic not to be ignored.
None of the services seem immune to problems when it comes to integrating women into the ranks. The public clamor over the Air Force handling of the Lieutenant Kelly Flinn adultery case (she was the B-52 pilot who had an affair with the spouse of an enlisted woman and who allegedly lied about that affair) and the impact of that case on Air Force General Joseph Ralston's possible nomination as Chairman of the Joint Chiefs of Staff (effectively ending his nomination after he admitted having an affair while separated from his wife back in 1987) are only two of the most recent examples. Other more egregious cases to draw public attention and censure include the rapes and sexual harassment cases at the Army's Aberdeen Proving Grounds, and the Navy scandal over the Tailhook incident. Some might argue that these problems are evidence that women cannot and should not be fully integrated into the military. Their very presence could be construed as prejudicial to good order and discipline in the armed services, and therefore, they should not be allowed to serve, particularly in combat roles. This kind of radical solution, however, is no solution at all, and is reminiscent of similar (bad) arguments made against integrating African Americans into the armed services. Today women make up 13.6% of all uniformed military personnel (197,529 out of 1.44 million) and are able to serve in 80% of all jobs and 90% of all career fields in the military. Even if the argument against integrating women into the military was a good one, it is unfeasible to think the military could return to an all male force at this juncture. Furthermore, I see no support for such a move by the leadership, or by the public at large.
Given the continued presence of women throughout the US military I would like to engage in a philosophical analysis of sorts. Philosophy, particularly applied philosophy, can offer insight on issues such as the one before us by analyzing the concepts and values that frame a particular question. Such an analysis should clarify and define concepts where possible, recognize when such clarification is not possible, and sharpen our understanding of what values underlie a given question. This is the task I set before me here. In particular, I wish to examine the topics of adultery, sexual harassment, and fraternization, looking at how the military's policy on these issues should be understood and implemented and suggesting a direction for any future changes in these policies.
What I hope to show in my analysis is that the main underlying value at stake in all these controversies is "good order and discipline." Unfortunately, however, "good order and discipline" is a necessarily vague concept that is not easily sharpened. Therefore, in formulating standards and regulations governing relationships between men and women, drawing sharp boundaries for policy implementation which serve both the requirements of discipline and justice (two requirements which are not unrelated) becomes very difficult. The conclusion I will draw from this analysis is that the public and military leaders need to realize that there are no easy rules to apply here. Instead, military leadership needs to become increasingly sensitive to the particularities and the context of each case when adjudicating these questions, recognizing that whatever policies and regulations might be adopted, these policies will necessarily remain somewhat ambiguous and in need of careful interpretation. The regulations are no substitute for the careful ethical judgments of commanders. Pointing out the elastic nature of any rules that might be adopted as policy may seem, at first, as not a very helpful conclusion. Nonetheless, as I hope to show, it is the right (and philosophically supportable) conclusion to draw, and one which could have a very positive impact on the military at large, as well as on the society the military is sworn to defend. I begin by examining the current regulations and policies that govern military procedure in dealing with cases of adultery, sexual harassment, and fraternization.
Current Regulations and Policies
The Uniform Code of Military Justice (UCMJ) is part of the United States Code (Chapter 47, Title 10) and contains the substantive laws governing the military justice system. Enacted by Congress, the UCMJ defines the prosecutable crimes for military personnel. Concerning the crime of adultery, the relevant law is found in Article 134, the General Article of the UCMJ. This article states,
Though not specifically mentioned in the chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
Adultery is perceived as an offense under this article. The offense, however, must be proven by the prosecution and shown to cause "prejudice to good order and discipline." Furthermore, in explaining this element of the offense, the Manual for Courts-Martial makes the following qualification.
"To the prejudice of good order and discipline" refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.
"Discredit" is defined as "to injure the reputation of" thus "making punishable conduct which has a tendency to bring the service into disrepute or which trends to lower it in public esteem." Nowhere in this article, however, (or anywhere else in the UCMJ) do we find direct mention of adultery.
The Manual for Courts-Martial (MCM) contains the specific offense of adultery. The MCM is in the form of an Executive Order from the President. Congress defines the crimes in the UCMJ; the President proscribes the procedural rules and punishments for violations of those crimes. In the case of Article 134, adultery is one of the specific crimes mentioned in the MCM as a violation of Article 134. There are three "elements" to the crime of adultery as defined by the MCM.
1. That the accused wrongfully had sexual intercourse with a certain person;
2. That, at the time, the accused or other person was married to someone else; and
3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
All three of these elements must be met for a conviction on charges of adultery.
At least two things are noteworthy concerning the military rules on adultery. First, adultery by itself is not criminal conduct, at least not given the standard definition of adultery as sexual relations with a married person other than one's lawful spouse. The further element necessary for classifying adulterous conduct as criminal is "prejudice of good order and discipline" or "of a nature to bring discredit." The other interesting point to note concerns the explanation of what counts as prejudicial to good order and discipline. Criminal conduct requires that "the prejudice is reasonably direct and palpable" rather than "indirect or remote."
Turning next to sexual harassment, there are a great many policies and regulations promulgated by the Department of Defense (DoD) as well as by the various services. At the DoD level the agency charged with addressing sexual harassment in the military is the Defense Equal Opportunity Management Institute (DEOMI). Their mission is to develop and support the military equal opportunity program and enforce the provisions of this program. More specifically, DEOMI has the task of promoting
an environment free from personal, social, or institutional barriers that prevent service members from rising to the highest level of responsibility possible. Service members shall be evaluated only on individual merit, fitness, and capability. Unlawful discrimination against persons or groups based on race, color, religion, sex, or national origin is contrary to good order and discipline and is counterproductive to combat readiness and mission accomplishment.
Concerning sexual harassment, DEOMI offers the following definition: "A form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" when submission or rejection to such requests is made a condition of one's "job, pay or career" . . . , "is used as a basis for career or employment decisions" . . . , or "creates an intimidating, hostile, or offensive working environment." On this last point, the DEOMI policy emphasizes that sexual harassment "need not result in concrete psychological harm to the individual, but rather need only be so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the work environment as hostile or offensive." The various services, in their own regulations and policies, use almost identical language in addressing sexual harassment.
The policy on seeking remedies for sexual harassment rests primarily with the chain of command. Commanders are expected to identify and correct discriminatory practices, as well as ensure that complaints "are taken seriously and acted upon as necessary." Despite the DoD preference that the chain of command be the primary channel for reporting and resolving complaints of sexual harassment, other channels are also available. Complaints may be directed to other agencies including the equal opportunity office, the inspector general, the chaplain's office, and the judge advocate general.
The relative effectiveness (or ineffectiveness) of these policies is highlighted in the 1995 DoD Sexual Harassment Survey. In this survey, 19 percent of active-duty military personnel (55% of all women and 14% of all men) reported one or more incidents of sexual harassment while at work in the year prior to the survey, down from 22 percent (64% of all women and 17% of all men) in the 1988 survey. While this represents a decrease of nine percentage points for women and three percentage points for men, it is still the case that over half of all active-duty women experienced one or more incidents of sexual harassment during the year. Furthermore, when asked what response the organization had taken to their reported complaints, 39 percent of men and 15 percent of women indicated that no action was taken. Additionally, 23 percent of women and 16 percent of men believed their complaint was discounted or not taken seriously. For those service members who did not report an incident of sexual harassment, 20 percent of women and 10 percent of men did not think anything would be done about their complaint. Fear of negative consequences was also a factor, with 25 percent of women and 13 percent of men not reporting incidents because it would make their work situations unpleasant.
Three items seem noteworthy concerning current DoD policies on sexual harassment. First, and perhaps most obviously, there is much work left to do in promoting a workplace environment "free from personal, social, or institutional barriers," particularly as it impacts on integrating women into the services and eliminating incidents of sexual harassment. Second, there is the heavy reliance on the chain of command in addressing complaints of sexual harassment. While the chain of command seems the appropriate place for addressing sexual harassment issues, the survey data on the effectiveness of the chain of command in responding to complaints is no cause for celebration. Finally, as with criminal adultery, the underlying concern of these policies on equal opportunity and sexual harassment revolve around good order and discipline and the related concerns of combat readiness and mission accomplishment.
Examining the issue of fraternization brings us back to the Uniform Code of Military Justice. Fraternization, like adultery, is an offense under Article 134 of the UCMJ and is defined in the MCM using the following criteria:
1. Accused is an officer.
2. Accused fraternized on terms of military equality with enlisted members.
3. Accused knew the person to be an enlisted member.
4. Fraternization violated the custom of the service.
5. Fraternization was prejudice of good order and discipline or of a nature to bring discredit upon the armed forces.
The general need for rules governing fraternization stems from the military's recognition that overly familiar and unprofessional relationships between superiors and subordinates tend to undermine military authority. Such undermining of authority can have especially serious consequences during combat operations when superiors must make decisions that involve sending subordinates into potentially dangerous and deadly situations.
All Services also have regulations defining the custom of fraternization in their Service. Army Regulation 600-20 sees fraternization as a relationships between soldiers of different rank which "cause actual or perceived partiality or unfairness; involve the improper use of rank or position for personal gain; or create an actual or clearly predictable adverse impact on discipline, authority or morale." Air Force Instruction 36-2909 defines unprofessional relationships as those which "detract from the military authority of superiors or result in or create the appearance of favoritism, misuse of position, or . . . personal gain." The Navy's OPNAV Instruction 5370.2A prohibits "personal relationships between officers and enlisted members that are unduly familiar and do not respect differences in grade or rank."
What is interesting to note in these various regulations on fraternization is that not all acts of fraternization are punishable under Article 134 of the UCMJ. Article 134 focuses on officer-enlisted relationships; the accused must be an officer with an unprofessional relationship with an enlisted person. Unprofessional relationships are not so limited under the various regulations. A Colonel can wrongfully fraternize with a Captain, as can a Sergeant with a Private. These kinds of unprofessional relationships may result in adverse administrative action, even if such conduct is not punishable under the UCMJ.
At least two items are worth commenting on here. First, a fair amount of vagueness is inherent in all these regulations and policies on fraternization. Often the regulations explicitly recognize this vagueness, as when the Air Force regulation comments, "the rules regarding these [unprofessional] relationships must be somewhat elastic to accommodate differing conditions" (my emphasis). As an example of the need for accommodating differing conditions the Air Force, addressing the topic of officer/enlisted marriages, has this to say:
Officer/enlisted marriages are not always the result of fraternization. Some are created by commissioning of civilians married to enlisted members; others by commissioning an enlisted member married to another enlisted member . . . . Consequently, the fact that an officer is married to an enlisted member is not, by itself, evidence of misconduct.
Not all that many years ago, to even raise the possibility of an officer/enlisted marriage would seem unthinkable to military careerists. With the increased integration of women into the armed services, these marriages have become much more commonplace. Even more frequent, however, are marriages between senior and junior officers or senior and junior enlisted members. And while these relationships are not prohibited under the UCMJ, often they do, on their face, appear to be relationships that may have began as instances of prohibited fraternization. How else could the Colonel have come to establish an intimate relationship with the Lieutenant that led to their marriage?
The second item I would note here is the ubiquitous presence of the "good order and discipline" clause. Maintaining good order and discipline and avoiding discredit to the service is the prevalent theme in the fraternization rules. As the Air Force states, "the underlying standard is . . . to avoid those relationships that negatively effect moral and discipline." And as I hope is becoming obvious by now, good order and discipline is the underlying standard for all for all the laws, regulations, and policies governing so called "unprofessional relationships" (adultery, sexual harassment, and fraternization.) This emphasis seems entirely appropriate. After all, discipline is, to quote General George Washington, the soul of the Army. Without discipline and respect for military authority, the combat readiness and effectiveness of the military (their raison d’être) is seriously compromised. If good order and discipline is the foundation upon which all these policies rest, it is this concept that merits our attention. In particular, what does it mean to cause "prejudice to good order and discipline?"
Prejudice to Good Order and Discipline
Part of the difficulty in answering the preceding question lies with the concept "good order and discipline" itself. It does not seem to be a concept amenable to rigorous definition. The first point to note, however, is the extrinsic nature of good order and discipline as a value. Military discipline is not valuable in and of itself. While inculcating the virtues of military discipline into one’s life can have a certain salutary effect on moral character, the moral value of these virtues is largely instrumental. Courage, perseverance in the face of hardship, respect for authority (to name just a few possible military virtues) are not intrinsically good. As Kant rightly points out, these virtues are more like "talents of the mind" or "qualities of temperament," and not of genuine moral worth. They may be useful traits to possess, but these same traits can be used for bad as easily as they can be used for good. A military force that embodies the values of good order and discipline, can be very effective in fighting either a morally just war and a morally unjust war.
Nonetheless, it is easy for military professionals to elevate good order and discipline to the level of an intrinsic value. A disorderly and undisciplined military force resembles a rabble at best, and a band of armed thugs at worst. Given the close connection between order, discipline and combat effectiveness, it seems only natural for military professionals to invest good order and discipline with some sort of absolute value (recall Washington’s observation that discipline is the soul of the Army). Conversely, any state of affairs that tends to prejudice order and discipline (as certain unprofessional relationships are apt to do) becomes intrinsically bad. Unfortunately life, even life in the military, cannot be reduced to such easy, black or white, principles.
If there is any absolute, intrinsic value in the military, it has to be combat effectiveness. The military exists to fight and win our nation’s wars. Any other good accomplished by the military is a happy side-effect of its pursuit of combat effectiveness. Good order and discipline, important as it is, merely serves as a means for attaining this end. To use Kantian terminology, the imperative to maintain order and discipline in the military is hypothetical. It is conditioned by some end, in this case, the end of combat effectiveness. Seen in this light, order and discipline loses whatever absolute value one might invest in it, but this loss comes with a gain that is particularly valuable in handling so-called unprofessional relationships. Military leaders gain a measure of flexibility in adjudicating issues of adultery, harassment, and fraternization that allows them to weigh and consider the impact of these various relationships on order and discipline, and ultimately, on combat effectiveness. The model for such a weighing of consequences resembles a utilitarian judgment more than a judgment based on absolute, Kantian type, principles. This kind of utilitarian flexibility, with its emphasis on the particularities of each case, is already embodied in many of the regulations (as I noted earlier), and becomes especially important as the make-up and attitudes of military personnel, and the nation they serve, change and evolve. For in the end, the degree to which so-called unprofessional relationships undermine order and discipline depends largely the attitudes of those persons affected by these relationships.
In this regard we find a changing attitude, both within the military and outside of it, on what constitutes an unprofessional relationship, the kind of relationship which poses a threat to order and discipline. For example, evolving theories of leadership have seen the military go from a very authoritarian, top-down, rigid leadership model, to a more flexible model that emphasizes delegating power and authority for decision making to the lowest level of command possible. Such a flexible leadership model can tend to engender increased familiarity between leaders and subordinates as the gap narrows between those who make decisions and issue orders, and those who must follow the orders. This increased familiarity may foster personal relationships that some might construe as unprofessional and prejudicial to good order and discipline.
Additionally the military has experienced a very real and positive change in the make-up of the active duty force. Today every active duty member is a volunteer; there is no conscription. Also, with continuing cutbacks in the size of the force, the military can be very selective in who it recruits and who it retains. As a result, today's military is (by all accounts) smarter, more physically fit, and more committed to the military ethos of subordinating oneself to the goals of the group (even at great personal cost) than ever before. They expect and deserve quality leadership--mature, wise leadership that does not rely on a simple, formulaic understanding of good order and discipline.
And finally, the demographics of the armed services has changed with minorities (especially African and Hispanic Americans) and women making up an increasing percentage of the total force. Along with this ethnic, racial, and gender diversity, the "military family" has changed as well, reflecting changes in American society. No longer does only father wear the uniform while the military wife stays at home to raise the children (often alone while her husband is deployed far from home). It is more and more common to see two income families, with the military member being the wife, rather than the husband. Also, with more women in uniform, we are seeing increasing numbers of dual military career families with the attendant stresses, as well as rewards. Unfortunately, divorce and adultery (the latter as usually understood and not as defined in the MCM) is not uncommon (if it ever really was among the military), and the number of single parent households among military members is on the rise.
All this diversity and change in the make up of the military presents opportunities as well as challenges. To appreciate the challenges facing military leaders in developing and implementing policies and regulations for governing relationships in the context of today's armed services, particularly as they relate to integrating women, just consider a few scenarios.
1. A separated, but not yet divorced, sergeant first class (E7) meets a corporal (E4) at an off-base dance club and they start dating. They are in the same unit but different sections, and rarely have contact on the job. Furthermore, no one but a few close friends know they are dating. Their relationship is just getting serious when the First Sergeant of their unit is reassigned, and the sergeant first class takes over as the acting First Sergeant. The result is that the corporal is now in the direct chain of command of the sergeant.
2. A divorced lieutenant-colonel meets and starts dating a lieutenant while they are both attending different service schools at the same post. They marry and are jointly assigned to a large installation in different units. Eventually both are promoted (to colonel and captain respectively) and the captain gets a choice command assignment working directly for a lieutenant-colonel friend of the colonel spouse.
3. A lieutenant in the process of a divorce seeks the advice of the unit's First Sergeant. The two become close and, after the lieutenant's divorce is final, begin a "secret" relationship with each other. Although neither technically works for the other, they see each other on a daily basis on the job. Despite being very careful to keep their relationship a secret, there are rumors throughout the unit about their constant companionship off duty. Eventually they marry each other after the First Sergeant retires from military service.
4. A sergeant starts dating the spouse of a junior enlisted soldier (whose marriage is failing) while the soldier is on a six month deployment. When the soldier returns home, the spouse files divorce papers. The sergeant, having received reassignment orders, amicably ends the relationship with the divorcing spouse.
Each one of these relationships poses, to a greater or lesser degree, a threat to the good order and discipline of the units to which these people are assigned. While I have not mentioned gender in any of the scenarios, for this discussion, I am assuming they all involve heterosexual relationships. Even if interpreted in the most favorable light possible for the persons involved, each of these scenarios gives the appearance of impropriety, and on this point the regulations are pretty clear. Unprofessional relationships are proscribed even if they do not actually involve the misuse of one's position, but merely "reasonably create the appearance" that they do.
Yet in each of these scenarios, one can imagine (perhaps naively) that no significant harm comes to unit discipline, respect for military authority, or morale. With the possible exception of the last scenario, however, the commander of the soldiers in each of these cases has grounds to accuse these soldiers of violating the regulations on fraternization, and perhaps even charging some of them with criminal acts under Article 134 of the UCMJ. While I am not prepared to say how each of these cases should be handled by a commander (for one thing I have only sketched out the barest details of each—there are many more facts we would want to know in each case) I present these scenarios to indicate the complexity and difficulty of the issue before us. Namely, what policies can the military adopt to handle these kinds of situations so that good order and discipline is not sacrificed?
A Negative Answer
Let us begin by discussing what should not be done in adjudicating proper from improper relationships. The controlling theme here is to focus narrowly. In other words, when examining whether or not a given relationship is unprofessional/improper, we should use a fairly narrow definition of good order and discipline to determine whether the relationship under question is in fact prejudicial. Again, military leaders need to recognize the instrumental value (as opposed to absolute value) of good order and discipline. Good order and discipline are means to combat effectiveness, and commanders’ attention should remain narrowly focused on breaches that clearly affect their units’ combat effectiveness. As was noted earlier, the MCM supports such a narrow focus when offering an explanation of what should count as prejudicial:
Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article  does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. (My emphasis.)
Clearly the intent is to avoid a kind of "witch hunt" mentality when commanders are confronted with possible unprofessional relationships. Not all improper acts--even if some may perceive these acts as morally improper in accordance with some personally held moral norm--directly prejudice good order and discipline. Secretary of Defense William Cohen seemed to echo this point in a recent statement concerning the case of General Joseph Ralston.
. . . leaders of our armed forces are expected to be a source of moral leadership for our forces and our Nation. The credibility to exercise moral leadership within the military does not come from notions of perfection. It comes from the maturity, wisdom, and courage to learn from our human errors.
Moral sainthood is not a requirement for honorable military service. Personal moral shortcomings that do not directly affect military order and discipline should not be subject to criminal or adverse administrative action. Again, a kind of utilitarian weighing of harms and benefits seems appropriate here. Actions which have little or no impact on a military unit’s combat effectiveness, should not be subject to official censure.
Furthermore, going beyond a rather narrow understanding of what acts and relationships prejudice good order and discipline can have other deleterious effects. For one thing, overly rigid and expansive policies may compromise generally accepted notions of justice. As much as the entrance level training process of the military may try to squash certain pre-military service habits and tendencies, the fact remains that soldiers, sailors, marines, and aviators are human beings with the full range of human needs and desires. In a gender integrated military, personal relationships between men and women (and sometimes intimate relationships) are a fact of life. Denying this reality and trying to stamp them out everywhere is to make military life more than just Spartan. Such a life would be almost monastic. Service members are expected and are willing to give up a great deal while on active duty, but it is unrealistic to hold them to a high and inflexible moral standard only a saint could aspire to. Lacking a direct and palpable prejudicial effect on order and discipline, close, personal (even intimate) relationships between service members of different ranks should not automatically be proscribed.
Additionally, the range of personal relationships that develop among military personnel vary as widely as the individuals who make up the uniformed services. No two cases are exactly alike, and in order to treat fairly and justly the individuals involved in these relationship, the full and particular circumstances need to be taken into account. No policy or regulation, however detailed it might be, can cover all the possible circumstances. Hence the need for a utilitarian model of judgment, one with flexible, "elastic" rules that thoughtful commanders can apply judiciously to the wide range of circumstances they may encounter. Justice, that is a justice which goes beyond the minimal conception of procedural justice, requires this kind of flexibility and attention to individual circumstances.
Not only do justice considerations support a narrow interpretation of prejudice, but so do some larger considerations involving both the good of the military and the nation. Few would dispute the need for the military to invoke a different set of standards governing professional relationships than are generally found in the civilian world. The nature of the military's mission, often involving inconvenience and hardship, and sometimes injury and death, demands a high level of confidence in the leadership and unhesitating obedience to orders. For these reasons, certain kinds of relationships (as I will delineate later) generally cannot be permitted in the military that may be permitted in civilian life. The problem arises when a type of relationship, generally accepted in civilian life (or at least tolerated), is not permitted in the military, despite the lack of a clear connection between that relationship and the good functioning of the military. Such a situation can feed into a rising alienation of the military from the public it serves.
In a democratic society, such an alienation can be especially pernicious. As Alexis de Tocqueville has pointed out, there is a natural antipathy between the citizens of a democracy and a professional military force. Citizens in a democratic nation are not generally comfortable with a large professional military. In the United States today, the armed services--entirely volunteer, largely unseen by the public at large (except when rocked by some sexual scandal), and increasingly oriented to career service in the profession of arms--are in danger of seeing themselves as a socially separate (and morally superior?) segment of society. As retired Admiral Stanley Arthur recently remarked,
Today the armed forces are no longer representative of the people they serve. More and more enlisted as well as officers are beginning to feel that they are special, better than the society they serve. This is not healthy in an armed services serving a democracy.
A military society which enforces rigid rules of behavior regarding workplace relationships that are at odds with what society at large finds acceptable, particularly when those rules find little justification in terms of the military's mission, is in danger of losing the confidence and support of the very people it is sworn to protect and defend. Such a military cannot long survive in a democratic country.
A healthy military in a democratic society recognizes itself as a part of that society. Such a military is neither above the laws of the society it serves, nor is it morally better than the society it serves. Such a military recognizes that the people serving in the armed services are citizens, as well as soldiers, and treats them with the respect and justice due all citizens. Yes, the demands of the military's mission may necessitate holding service members to a different, perhaps higher, standard of behavior in certain contexts, but these standards should not go beyond what the military mission requires. Having argued for the need to focus narrowly on what constitutes a relationship prejudicial to good order and discipline, the main question of this analysis remains open. Exactly how far can and should the military go in governing relationships between servicemen and women in order to insure good order and discipline in the services?
Good Ethical Judgment
In a military organization, adjudicating issues of adultery, sexual harassment, and fraternization often involve making difficult ethical judgments. These judgments are made all the more complex by the personal, and sometimes intimate, nature of the behaviors and actions under question. When faced with such a difficult ethical question, it is sometimes easy for those making the judgments to take refuge in one of two equally harmful approaches. The first approach involves an over-reliance on general, abstract principles, e.g., a facile and simplistic application of consequentialist or deontological ethical theory. While such abstract theories and principles serve a purpose, rarely can these principles adequately address all situations. For example, truth-telling is a fine principle until one faces Kant's inquiring murderer. Likewise, producing the greatest good for the greatest number seems attractive until attaining this end requires the suffering of innocents. This same lesson can be applied to the ethical issues concerning us here.
For example, zero tolerance for personal or sexual relationships between service members of different ranks may seem like an attractive policy. Such a policy has a number of merits; it is simple, easy to apply, and not subject to possible exceptions. Despite these merits, however, such a policy probably would not have the desired effect on order and discipline. The problem with any such broad, inflexible policies is that it fails to recognize the human scale of our ethical lives. While broad policies and abstract principles can provide us with general guidelines for ethical behavior, most of us do not live our lives at that level. We live particular lives, embedded in a particular history and context. In making moral judgments, we cannot entirely ignore this human aspect of our lives and still live a good human life. This is a point both Aristotle and Hume seem to have in mind in their writings on ethics, and on this point they seem correct.
If a myopic adherence to broad policies and abstract principles is the first harmful refuge for military leaders and policy makers, the second is the equally mistaken belief that all moral judgments are entirely context dependent and mired in their particular and diverse situations. Once again, we have a failure see our ethical lives at the proper level of generality. While there is a sense in which every situation and every case involving relationships between service members is new and different, it is also true that many are not. The kinds of cases I have in mind here involve the abuse of power in some clear and direct way. The sexual harassment and rape of new trainees by drill instructors at the Army's Aberdeen Proving Grounds is just such a case. In this type of situation, where there is such an asymmetry of power between drill instructors and trainees, a firm, no-exceptions, policy seems appropriate. Again, Aristotle seems instructive here, when he points out that some actions are inherently evil so that exceptions to the rule proscribing such acts (the possibility of a "choice of a mean") is ruled out.
So where has all this analysis led? Good ethical judgment, judgment that does justice to the human scale of our lives, lies somewhere between two extreme views. Good ethical judgments are not made entirely at the level of general, abstract principles, but neither are they completely mired in the particular. Recognizing the great difficulty in establishing clear, unambiguous rules for governing professional relationships in the military aimed at preserving good order and discipline is the practical result of this finding. Human life, even the life of a soldier, is too complicated and varied for simple, inflexible rules, but not so complicated and varied so as to defy all general rules. So in the final analysis, rules and regulations cannot by themselves bear the burden of governing these relationships. Instead, this burden must be turned over to wise practitioners (which is to say wise commanders) who recognize the true nature of our ethical lives, and will adjudicate these matters in light of this recognition. People, not rules, make ethical decisions.
Wise Command Judgment
If the key to properly addressing professional relationships in the military lies with wise commanders making wise judgments, rather than the simplistic application of rules and regulations, what underlying values might shape these judgments? I would commend three general values, all of which seem highlighted by my analysis thus far, for careful consideration by all commanders.
First, and perhaps most important, the underlying concern of all commanders in addressing these personal relationships among service members must be the good order and discipline of the organization. This value properly lies at the heart of the military’s need to govern such relationships, and this value under girds the current rules and regulations on adultery, sexual harassment, and fraternization. Commanders must exercise care, however, in distinguishing relationships which are genuinely prejudicial to order and discipline and those which are merely irregular. Proper and necessary concern with order and discipline should not extend to imposing subjective and personal moral judgments on the private relationships of service members. The relationship in question must have a direct and palpable harmful effect on order and discipline. Making such a determination requires careful empirical investigation, a kind of utilitarian weighing of the effects of the relationship under question. And in most cases, the burden of proof rests on those advocating the harmful nature of the relationship. Unless the commander intends to initiate a sexual witch hunt of some sort, these largely private matters warrant such a narrow focus on good order and discipline.
Second, in adjudicating these matters, commanders must remain cognizant of the close and mutually supportive relationship between discipline and justice. Much of the justification for a narrow focus on order and discipline comes from the recognition that discipline without justice is a discipline largely based on fear. Glaucon and the Ring of Gyges aside, a discipline based in fear is no real discipline at all. If service members feel they are being treated unfairly, their obedience to orders will extend only so far as they fear punishment. Clearly a discipline largely motivated by fear does little to advance the military ethos of self-sacrifice for the good of the organization, but instead is likely to undermine this ethos.
Unjust and unfair policies (as most zero-tolerance policies tend to be) may also dispose otherwise good and honest people to engage in subterfuge and lies. Such a situation will tend to destroy trust among members of the military (a key ingredient of unit cohesiveness) and does not promote either good order and discipline or good morale. A just and fair policy governing relationships between service members will naturally limit its reach to those relationships that clearly and directly have an adverse impact on order and discipline. No other consideration adequately justifies regulating the private lives of service members.
The third value I would highlight serves to illuminate how and why certain relationships and modes of behavior are, in fact, prejudicial to good order and discipline. The value I have in mind can loosely be labeled: "proper respect for military authority." I am not referring here to actual persons, but rather am thinking in terms of particular offices and roles found throughout the military. More specifically, I am referring to command and supervisory positions from the lowest to the highest level. Respecting the authority of these positions involves both those who fill the positions of authority and those who are subject to their authority. For those in positions of authority, they have an obligation to exercise that authority in a competent, fair, and just manner. They are to avoid abusing the power of the position they hold. Naturally, persons subject to military authority also have obligations, primarily to obey the legal commands and directives of those in authority. In a healthy military, however, the obligation should extend beyond mere obedience to orders to include an unwillingness to seek undeserved favor or consideration from their leadership. This is part of what the military ethos seems to demand of both leaders and subordinates—willing sacrifice of personal well-being for the greater good of the organization and its mission.
The problem with certain types of service member relationships is that they often work to undermine this proper respect for military authority. This is particularly serious if there is an open abuse of power. Sexual harassment cases are paradigmatic of this kind of abuse. Examined from this abuse of power perspective, it seems possible to classify service member consensual relationships into three general categories. These categories can be helpful in making the necessay empirical investigation for adjudicating these kinds of issues.
First, and least problematic, are consensual personal/intimate relationships between individuals of roughly equal grade or rank where neither party has any supervisory or command responsibility over the other (what I will label peer relationships). Rarely will these relationships impact negatively on order and discipline, and the presumption should be that they do not. At the opposite extreme (and equally unproblematic, but for different reasons) are consensual personal/intimate relationships between individuals of different grade or rank where the senior individual has some sort of supervisory or command authority over the junior service member (what I will label superior-subordinate relationships). Here there must be a strong presumption that the relationship is not really consensual but involves an abuse of power by the superior. And in cases where the subordinate is in the direct chain of command of the superior or directly supervised by that superior (again the Aberdeen case, involving drill instructors and women trainees, comes to mind) it seems appropriate to enforce a policy absolutely banning such relationships. Even in cases where the relationship is genuinely consensual and involves no abuse detrimental to the subordinate, an abuse of military authority and power is still likely. Only now, the abuse of power stems from the potential that the subordinate in the relationship will receive special dispensation and favor from the superior. This type of abuse is equally harmful to military authority and discipline.
The difficult category falls between these two extremes. They are the consensual personal/intimate relationships between individuals of different grade or rank (senior-junior relationships as opposed to superior-subordinate relationships). Here there is some presumption against the consensual nature of the relationship given the difference in rank. The greater the difference in power and authority between the two service members, the greater the possibility of an abuse of that power to the detriment of the junior person. This is not to say that all such senior-junior relationships do involve such an abuse of power, but they all deserve careful scrutiny. When the relationship involves a senior male and a junior female, close scrutiny seems especially appropriate. As the DoD Sexual Harassment Survey indicated, female service members are much more likely to be subject to inappropriate sexual advances and abusive uses of power and authority than their male counterparts. Therefore, commanders need to be especially alert to senior (male)-junior (female) relationships and their potential for abuse.
There are also three subcategories that deserve mention, particularly in light of the Kelly Flinn case. Can and should the military concern itself with relationships between service members and the spouse of a service member? If a senior individual is involved in a relationship with the spouse of a junior individual, what is the appropriate response? A similar question arises when the relationship is between a superior and the spouse of one of his or her subordinates, or between a service member and the spouse of another service member equal in rank. In general, the same guidelines seem to apply here as in the first three main categories. Superior-subordinate spouse relationships are most open to abuse and the presumption should be that they do involve abuse of power. Relationships between service members and the spouse of one of their peers is a personal matter, generally best left to the individuals involved. Relationships between a senior individual and the spouse of a junior individual are most problematic and deserve scrutiny.
In all these categories, however, commanders need to keep themselves narrowly focused on abusive power relationships and the disrespect for military authority such relationships engender. With the likely exception of superior-subordinate relationships, it is hard to draw bright lines that will adequately delineate between improper and permissible relationships. Perhaps the best that can be done is to sketch out these broad categories and establish an hierarchy of sorts. This hierarchy would establish burden of proof requirements for the various relationships catalogued above. In peer relationships the burden of proof for demonstrating that respect for military authority is threatened rests with the commander. The general rule is innocent until proven guilty. In superior-subordinate relationships the burden of proof that respect for military authority is not threatened lies with the superior in that relationship. This burden follows from the presumption that these relationship often involve an abuse of power. In senior-junior relationships, the messy middle ground, the burden of proof is shared. To go beyond these guidelines, however, is to seek greater precision then our subject allows. In ethics, as Aristotle notes, "we must be satisfied to indicate the truth with a rough and general sketch."
Some Final Comments
As I indicated at the beginning of this paper, the context for understanding the issue of proper and improper relationships among service members (and their spouses), whether the concern is adultery, sexual harassment, or fraternization, can be found in the continuing integration of women into the armed services. Despite much progress in this regard, the military still has far to go in fully integrating women.
One of the most contentious issues in this integration effort has been the "combat exclusion rules" governing assignment policies for women. The current policy, issued by Secretary Les Aspin in January 1994, restricts women from serving in assignments that involve "direct ground combat." Direct ground combat is defined as exposure to hostile fire well forward on the battlefield with a high probability of physical contact with the enemy. While this is an improvement over the older "Risk Rule" policy, almost 20% of all jobs, and 10% of all career fields are still closed to women. What makes this figure even worse than it may already seem, is that the jobs and career fields closed to women are the very ones that lead to the highest levels of command and responsibility, viz., combat assignments. The result of this type of assignment policy is that women, solely because of their gender, are systematically relegated to a kind of second-class status. And it is this second-class status that no doubt leads to some of the abusive professional relationships at issue here. Women are not the problem here; assignment policies for women are the problem.
The solution is to put women on an equal footing with men throughout the armed services. What this means is a further review of combat exclusion policies. In principle, there is no reason why qualified women should not be able to serve in all jobs and enter all career fields in the services. The skills and competencies required of an infantry soldier, a combat aviator, or a sailor on a warship are not necessarily gender based. Until the military fully integrates women into the armed services, opening to them all positions and career fields, it seems likely that problems of order and discipline associated with improper professional relationships will persist (to the detriment of all service members).
What is really called for, however, is a change in the prevailing attitudes of both servicemen and servicewomen. Changes in assignment policies can help effect this change (and the change may be impossible without a change in policies), but all service members, and the society they serve, need to come to a better understanding of what it means to be a soldier, a member of the profession of arms. Despite the increasing number of women in today’s armed services, a kind of macho masculinity still pervades the military. To succeed in such an environment, women soldiers often find themselves precariously balanced between two competing norms of behavior. On the one hand they are expected to conform to traditionally masculine norms (physical toughness, emotional stoicism, highly competitive, etc.) while at the same time not appearing too masculine. This disparagement of traditionally feminine attributes, a disparagement which has no basis in job performance, seems like a recipe for sexual harassment.
Additionally, the arguments against integrating women into the military seem to echo similar discredited arguments previously made against integrating some professions in the civilian workforce (e.g., police officers and firefighters). Yes, the average woman is physically weaker than the average man, but that does not justify excluding all women from combat assignments. Not all women, nor all men, are average. As a result of anti-discrimination laws (which won passage over 30 years ago) police and fire departments have successfully implemented nondiscriminatory job performance standards. It seems reasonable to insist that the military fashion standards genuinely related to job performance that do not systematically exclude women on the basis of their gender.
In the final analysis, the role and function of the military is not gender specific. We entrust members of the armed services with the instruments of force and violence. They may directly threaten and cause the death of enemy soldiers, but they must also always fight with restraint. That need for restraint centers on the central charge to professional soldiers, the charge to serve as the defender and protector of the weak and unarmed. Therefore, professional soldiers recognize a proscription against harming the weak and unarmed, and limit their violence, as far as possible, to avoid harming civilians, the wounded, and prisoners of war. If the role of defender and protector lies at the heart of what it means to be a soldier, and I believe it does, I can see no justifiable reason for excluding women from assuming this role. There is nothing peculiarly masculine about being a soldier, and those who think otherwise do not truly understand the essence of soldiering. A proper understanding of the profession of arms can go a long ways towards correcting the second-class status of women in the armed services, as well as resolving most, if not all, of the problems clustered around the military’s continuing integration of women.