In December 2022, as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Congress authorized greater – and expects more – enforcement against merchant mariners for complaints of sexual assault and sexual harassment.
In fact, the Coast Guard has a dedicated National Center of Expertise (NCOE) focused on revoking merchant mariner credentials based on complaints of sexual assault and sexual harassment.
Korody Law is a worldwide law firm that has significant experience defending merchant mariners served with a Complaint by the Coast Guard.
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Congress Expanded Definitions And made it easier to revoke merchant mariner credentials
The 2023 NDAA expanded the definition of "Sexual Harassment"
The expanded definition of Sexual Harassment under 46 U.S.C. Sec. 2101(46) is vast. For brevity’s sake, we won’t simply cut and paste the entire statute but there are a few things you should know about the expanded definition of Sexual Harassment that will be used in Suspension and Revocation hearings. Those include:
- The alleged victim does not need to be of the opposite sex.
- The harasser can be anyone – a superior/supervisor, a co-worker, a subordinate, or a supervisor in another area.
- The alleged victim doesn’t need to be the person who was the actual target of the comments or the behavior; it can be anyone affected by the behavior.
- Sexual harassment may involve physical contact, verbal comments, or physicial gestures.
- Sexual harassment does not have to result in a hostile work environment, economic injury, or otherwise effect the victim’s employment.
"Responsible entities" (companies) are required to report to the Coast Guard detailed reports after becoming aware of a sexual harassment or sexual assault incident.
Under 46 U.S.C. Sec. 10104, the “responsible entity” must report to the Coast Guard any complaint or incident of sexual harassment or sexual assault in violation of employer policy or law of whcih such entity is made aware.
A “responsible entity of a vessel” is defined as owner, master, or managing operator of a documented vessel engaged in commercial service or the employer of mariners on the vessel.
What this means is third party oversight by the Coast Guard of all complaints made, even those that are presumably unsubstantiated. The reporting requirements state that the responsible enity of a vessel must provide the name of the reporter, the vessel information, the time/date of the incident, the location of the vessel when the incident occured, and a brief description of the incident. They must do this within 10 days of beciming aware of the incident.
To make clear the reporting requirements, the Coast Guard issued Marine Safety Information Bulletin (MSIB) 1-23, Reporting Sexual Miscondut on U.S. Vessels. It further provides that the Coast Guard will respond to any reports of sexual misconduct with trained investigators and will hold offenders accountable through criminal prosecution and/or actions against U.S. Coast Guard issued merchant mariner credentials (MMCs).
New Grounds MMC Revocations and Suspensions under 46 U.S.C. Sec. 7704a
In the 2023 NDAA Congress enacted 46 U.S.C. Sec. 7704a as a statutory authority to revoke merchant mariner credentials in sexual harassment and sexual assault cases. This statute gave a new enforcement tool to the Coast Guard and in some ways made it easier to suspend or revoke MMCs.
First, revocation is mandatory if it is shown at a hearing that the holder of the MMC has been the subject of an “official finding” of sexual assault in the previous 10 years. Second, MMCs must be suspended or revoked if it is shown that the holder of the MMC is the subject of an “official finding” of sexual harassment within the past 5 years. This means that the Coast Guard can will seek stiffer penalties in cases of sexual assault or sexual harassment.
Defenses to Revocactions and Suspensions under 46 U.S.C. Sec. 7704a
46 U.S.C. Sec. 7704a was written in a way to avoid re-litigating claims of sexual assault and sexual harassment before Coast Guard Administrative Law Judges. In that respect, it was an effort by Congress to make it easier for the Coast Guard to revoke or suspend merchant mariner credentials.
There are defenses, however. Traditional jurisdictional and affirmative defenses remain. Additionally, there may be challenges to the so called “official finding.”
However, it is very clear that merchant mariners who are under investigation for sexual assault or sexual harassment need a lawyer because the defense must begin at the company/ship level even before the report is made to the Coast Guard.
What should I do if I receive a Complaint from the Coast Guard?
First and foremost, it is important that you file an Answer to the complaint. Failure to file an Answer within 20 days or less (or later only if an extension is granted) after service of the Complaint may result in a default decision, meaning the Coast Guard’s Proposed Order as stated in the Complaint (normally revocation) becomes final. Your written Answer to the Coast Guard’s Complaint is a critical part of defending a MMC Suspension and Revocation case. Therefore, it is important that you hire an experienced Suspension and Revocation lawyer to assist you in drafting the Answer.
How can Korody Law defend me if I am a MMC holder facing a complaint of sexual assault or sexual harassment?
Korody Law has more than 50 years total military law experience – that includes representing clients against the Coast Guard in administrative investigations and hearings. We have sucessfully defended holders of merchant mariner credentials facing complaints of sexual assault and sexual harassment as well as other more common complaints such as drug and alcohol offenses. This includes before Coast Guard Administrative Law Judges (ALJ). Korody Law represents merchant mariners worldwide facing suspension or revocation of MMCs.
We are ready to assist and fight for your credentials and career!
Free MMC Suspension and Revocation Hearing Consultation
Let Korody Law provide you a free case consultation.