Congress and the Coast Guard Want More Enforcement Actions Against Mariners Accused of Sexual Harassment and Sexual Assault

 Just like it has done with the military for over a decade, Congress is now changing the laws governing the handling of sexual harassment, sexual assault, and sexual contact cases that occur on U.S. flagged merchant ships.  Many of the laws have been championed by the Coast Guard because they give the Coast Guard more authority and permit the Coast Guard to ask for more resources to exercise this authority and pursue suspensions and revocations of Coast Guard Merchant Marine Credentials (MMC).  The Coast Guard now almost eclusively uses its Suspension and Revocation National Center for Expertise to prosecute the suspension and revocation complaints.

First, Congress expanded the definition of Sexual Harassment under 46 U.S.C. section 2101(46).  Specifically, the expanded the definition of what conduct may constitute sexual harassment. Now, seemingly, sexual harassment in the workplace does not have to result in a hostile work environment, economic injury or effect the victim’s employment – something that courts frequently required to be shown before substantiating a claim of sexual harassment.  Additionally, a substantiated finding by an administrative law judge of sexual harassment now requires suspension or revocation.

Under 46 U.S.C. section 7704a, those who have been found to have committed Sexual Assault now must have their credentials revoked.  While their may be an outside chance to receive administrative clemency from the Coast Guard at a later time, revocation truly means revocation.

Under 46 U.S.C. section 10104, companies now have to report to the Coast Guard any complaint of sexual harassment or sexual assault.  This must be done within 10 days of the report being made.  MSIB 1-23: Reporting Sexual Misconduct on U.S. Vessels (February 9, 2023) covers the reporting process and requirements for the industry.  Once the report is made either the Coast Guard or the Coast Guard Investigative Service will commence an investigation that runs parallel to any company investigation.  Mariners need to obtain counsel immediately since statements made during a company or Coast Guard investigation can and often will be used later in a court of law or in a suspension or revocation proceeding.  More often than not, claims of harassment and assault are substantiated during these investigations leading to, at minimum, a MMC suspension and revocation hearing before a Coast Guard administrative law judge.