SAILOR, CURSE NO MORE

But less well understoodi is Tailhook’s perverse institutional impact on the Navy. This is illustrated by the travails of Capt. Everett L. Greene, court martialled for sexual harassment and recently acquitted. Greene’s ” crime” was — are you ready? — writing poems to one Lt. Mary E. Felix, who, the prosecution conceded, was probably flirting with him at the time.

The Navy policy under which Capt. Greene was prosecuted draws on the civilian law of sexual harassment, itself no model of clarity. In a hastily delivered 1993 decision, Harris v. Forklift Systems, the U.S. Supreme Court passed up an opportunity to explicate the criteria by which sexual harassment in the workplace should be judged and delivered itself only of the generality that the plaintiff need not suffer psychological damage to have a valid lawsuit. Beyond that, the court reiterated without elaboration its disapproval of a “hostile workplace environment.” None of this is very helpful to a personnel manager trying to enforce acceptable standards of behavior in the workplace — and the problem is vastly more difficult in the armed forces, where the workplace is everywhere and often around the clock.

More important, the new Navy policy brands as “harassment” any acts or statements unwelcome to those toward whom they are directed. Despite the policy’s apparent deference to the “reasonable person” standard for determining what is offensive, Navy regulations have it that such a person will be deemed to possess the complainant’s sensibilities. Nor is offensiveness to be measured against “stereotyped notions of acceptable behavior.” You might say the Navy has adopted a subjectively objective standard.

This reliance on subjectivity is especially inappropriate in a military setting, since people attracted to the armed forces often have quite aggressive personalities (a good thing, given the function of their profession). Another difference from the civilian context is that the Navy has chosen to escalate harassment from a civil to a criminal matter. In the new U.S. Navy, crime is now in the psyche of the beholder.

Gone are the days when a sailor could swear like a sailor. Capt. Mark Rogers, the No. 2 military officer in the White House, recently saw his promotion to admiral evaporate because he did just that. In this man’s politically correct Navy, you can land in the brig for using language that, far from making the legendary sailor blush, offends a single sailor whose own twin sister might consider the language in question merely colorful and think the guy uttering it kinda cute. Or, in the earthy idiom: of Capt. Theodore Grabowski, a witness in the Greene court martial: “Nobody knows what the hell to do.”

The positively bizarre lengths to which the new policy is being carried became apparent during the Greene court martial — the first if a Navy captain in half a century. You might think that, given the gravity and rarity of such a proceeding, Capt. Greene must have stood accused of heinous misbehavior. Not so. Stripped to its core, the charge was that he wrote poems and sent small gifts to Lt. Felix, with whom he was serving. According to the Navy Times, when asked at trial if Capt. Green’s behavior was sexual in nature, she replied: “I can’t give you an exact statement. It just made me feel uncomfortable . . . the whole thing was very confusing to me.”

Perhaps the poems Greene sent Felix were obscene? Not at all. They weren’t what you might call literature, either. They included snappy stuff like, ” Whenever you need to be adored, I will be there. Whenever you need to be befriended I will be there. Whatever you need, now or in the future, I will be there for you.” He also sent Felix little gifts like — in the words of the New York Times — “a bag of chewing gum and an old pair of men’s running shorts.” Odd behavior, doubtless — but the penalty Greene faced was up to eight years in the brig.

And if you have visions of Greene’s picking on Felix and unilaterally lavishing his attention on her out of the blue, think again. Reports of the court martial made clear that Felix, the supposed victim, had been given immunity from prosecutors in exchange for her testimony against Greene. Just what her misdeeds might have been that would warrant a formal grant of immunity was not explained in any detail. But the Navy prosecutor conceded: ” Maybe she was a little emotionally immature and she probably did flirt with Captain Greene.”

Casting further doubt on the merit of Felix’s case, it turns out that she filed her formal complaint against Greene two years after the fact. Her explanation for the delay was that she had been Led to believe that, as a result of informal mediation back in 1993, Greene would never be promoted. When she learned later that his name had been placed on a list for promotion to admiral, she decided to go public with her charges.

That such vindictive, soap-opera stuff should result in a criminal prosecution is simply bizarre. But even on its own premise, if the full force and vigor of military law were to be belatedly unleashed, why not against both miscreants?

If there was improper (though concededly not physical) “fraternization” herei both parties participated voluntarily. It takes some explaining in this age of gender equality why Felix was given immunity for whatever it is that she did, while Greene had to face the music. Indeed, the case gives new meaning to the old crack that military justice is to justice what military music is to music.

Is there a moral here? Though Capt. Greene now heads the SEAL team, he has just received word that he will not be promoted to admiral. It should be noted, however, that at the time of his supposed offenses against the weaker sex, he was heading the Navy Bureau of Personnel’s anti-sexual harassment unit.

So there you have the moral for the brave, new U.S. Navy: He who lives by political correctness, dies by political correctness.

by Gideon Kanner; Gideon Kanner is professor of law emeritus at the Loyola Law School in Los Angeles