Army Sexual Harrassment Case Goes to High Court Over Whether It's a Criminal or Disciplinary Offense

The High Court of Justice has been asked to resolve a fierce dispute that has recently raging in the Israel Defense Forces' Judge Advocate-General's Office: whether a career soldier accused of serious sexual harassment should be tried in military court or in disciplinary proceedings.

The soldier in question, a noncommissioned officer serving in the Northern Command, is charged with harassing a female subordinate. The woman says that while she was washing in a stream during a hike, the NCO hugged her and rubbed against her, ignoring her objections, and stopped only when another soldier came onto the scene.

The JAG, Major General Menahem Finkelstein, decided to put the NCO up on disciplinary charges, meaning that the case will be tried by an officer, usually one with no legal training. But the NCO's attorneys - Colonel Avihai Mandelblit, the army's chief defense attorney, and Captain Elkana Leist, chief defense attorney for the Northern Command - petitioned the High Court against this decision, arguing that it violates the standing orders of the JAG's Office with regard to sexual harassment cases. These orders state that all cases of serious sexual harassment - meaning those involving physical contact and abuse of the harasser's superior rank - must be tried in military court, while less serious cases (verbal harassment or creation of a sexist work environment) should be tried in disciplinary proceedings.

In their petition, the defense attorneys charged that Finkelstein opted for a disciplinary hearing in this case because he lacks enough evidence to bring the case to military court. Disciplinary proceedings are not bound by the strict rules of evidence that govern the courts. However, a disciplinary hearing can impose serious penalties, up to and including ousting the NCO from the army. Therefore, given the weakness of the evidence, their client's rights would be better protected in court, the attorneys said.

The JAG's decision, they argued, thus violates standard procedure without justification while also trampling on the defendant's right to a fair trial.