New Reporting Law Creates Uncertainty, Risk
During the recent River and Marine Industry Seminar in New Orleans sponsored by the Greater New Orleans Barge Fleeting Association, the panel that sparked the most buzz was the one on new reporting requirements for sexual harassment and sexual assault.
Like so many sweeping laws, the new requirements in the James M. Inhofe National Defense Authorization Act (NDAA) for FY2023 were passed in response to an emergency—the firestorm of public attention that greeted the horrific story of Midshipman X, who was assaulted aboard a U.S.-flag vessel. Many sweeping policy changes have already been enacted at the maritime academies and Coast Guard.
Many of the emerging stories reached back years or even decades as the past was exhumed. One mariner informant told of a sexually predatory captain active in 1954. The publicly revealed stories to date seem to be concentrated in the blue-water maritime academies, military service and blue-water merchant marine. Of the 19 stories made public on the website of Maritime Legal Aid Advocacy (a nonprofit organization launched in 2020 to aid victims of maritime sexual harassment or assault), all took place aboard blue-water vessels.
Some questions at GNOBFA reflect concerns that legal and administrative responses to blue-water problems are being imposed on brown-water operators, without due consideration of differing circumstances and requirements. To be clear, those who make allegations of these offenses should be taken seriously no matter where or when they are alleged to have occurred. Such cases deserve prompt action. But is reporting to the Coast Guard appropriate or even helpful for brown-water operators?
One questioner from the GNOBFA audience who identified himself as a retired Coast Guard veteran and former JAG (judge advocate general), commented, “To industry, this law looks a lot like Congress said, ‘Ready … Fire … Aim’.”
It’s the Coast Guard’s job to execute and enforce laws passed by Congress. If Congress passes laws that are overbroad, have vague or legally undefined terminology or come with not enough guidance, the Coast Guard must nevertheless do the best it can to enforce the law. The fact that “sexual harassment” is not yet legally defined (but may be soon) adds to the unease felt by industry operators.
The new reporting requirements create a lot of uncertainty and risk for operators. The expert panel at GNOBFA—which included the Coast Guard’s top enforcement officers—sought to reassure questioners that the new laws won’t be used aggressively or punitively, but the Coast Guard is left little wiggle room. It MUST investigate ANY allegation of sexual harassment or assault under the new laws, as panelists stressed.
Hopefully the regulations can be clarified to ease some of the concerns of industry operators.
