On 26 January 2022, the President signed an executive order making Sexual Harassment an explicit offense under the Uniform Code of Military Justice. This executive order was an effort to implement a provision in this year’s National Defense Authorization Act [NDAA] that required the change.
After the President tweeted about this “historic” change, we noticed an uptick in concerned servicemembers calling the firm to see how this might affect them. Many concerned callers would ask now that sexual harassment is officially a crime, how would it affect their current pending investigations or cases.
Despite the headlines and now its own official UCMJ Article, Sexual Harassment in the military has been a crime for an exceptionally long time. Usually, it was charged under Article 93 of the UCMJ, under Maltreatmentof a subordinate. The Army updated its own regulations to make sexual harassment punitive (meaning everyone is on effective notice that it was criminal) in July 2020, under AR 600-20, Army Command Policy. That allowed sexual harassment to be charged under article 92, Violation of a General Regulation.
But now, per the NDAA and Presidential Executive Order, Sexual Harassment has its own UCMJ Article. It has been added to the category of Article 134 offenses, crimes that are prejudicial to good order and discipline, and/or service discrediting.
When it was charged under Article 93, UCMJ (Maltreatment), the maximum punishment was a Dishonorable Discharge, total forfeitures of pay and allowances, and confinement for 3 years. When charged under Article 92 (Failure to Obey a General Regulation), the maximum punishment decreased to 2 years confinement, but still had a max of a Dishonorable Discharge and total forfeitures. Now its own 134 Article, Sexual Harassment’s maximum punishment remains 2 years confinement, dishonorable discharge, and total forfeitures.
Some have championed this new law as finally outlining what is and is not sexual harassment, but we could not disagree more after reading the law. In fact, from our perspective it creates more questions than it answers.
The elements of the new Article 134 – Sexual Harassment are:
(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
(2) That such conduct was unwelcome;
(3) That, under the circumstances, such conduct:
(a) Would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits, or entitlements;
(b) Would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
(c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
(4) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.
What we find curious about the new law is how it defines who the law applies to. For example, a certain person “extends to any person, regardless of gender or seniority, and regardless of whether subject to the UCMJ, who by some duty or military-related reason may work or associate with the accused.” Obviously, it could relate to a GS employee working for the DoD, but does it also apply to a military spouse helping to organize a unit event or the wait staff working at the restaurant on post? Only time will tell how prosecutors (and later judges and appellate courts potentially) interpret the phrase “associate with the accused.”
How about the term “other conduct of a sexual nature”. . .? The law states that it is “dependent upon the circumstances of the act or acts alleged and may include conduct that, without context, would not appear to be sexual in nature.” Wait. What!?
That otherwise non-sexual conduct can somehow become of a sexual nature depending on the circumstances means that anything can be deemed sexual in nature, depending on the context. Although we certainly leave room for the possibility that how tone, inflection, and facial expressions can change an expression’s meaning, there are significant concerns about who gets to interpret the meaning. With a definition that includes such wide latitude this feels reminiscent of Article 120’s any body part can be touched in a sexual way and render someone a sex offender. Now, a seemingly innocuous statement can somehow transform it to having a sexual connotation from a seemingly innocent statement, into one that leads to a federal conviction. We fear that this wide latitude in definition won’t help prosecutors, the courts, or panel members (juries).
Also, the law clarifies that it does not matter whether the accused or alleged victim is off duty when the alleged harassment occurs; off duty and off installation conduct is punishable under this Article.
BEWARE OF ONLINE CONDUCT
Most interestingly, the law criminalizes online conduct that meets the same wide definitions of sexual harassment. One element is that the conduct is unwelcome. Interpretation of when a comment was unwelcome can be like striking a hornets nest.
Our advice? f you see a member of your unit on that dating app, do not swipe right. Understand that we are not saying that matching on a dating app with another person in your unit constitutes sexual harassment; it’s not on its own.
But what happens during the conversation? You misinterpret an emoji, fire off a few colorful phrases or emojis of your own? And suddenly, you are staring down the barrel of a criminal investigation. You see, she said that last comment went too far; it was unwelcome. When (we would like to say if, but come on) the conversation sours or the date ends awkwardly . . . We highlight this issue because the law outlines that an alleged victim does not need to feel sexually harassed at the time it is happening. Instead, the law makes it a crime if the alleged victim believes it was sexual harassment at any time.
Online conduct is inherently at a distance and lacks the benefit of facial expressions and social cues. What if you didn’t know you were making the other person uncomfortable?
That does not matter, per the law as it is currently written. The law only requires the accused have knowledge that they are making a sexual advance or a demand or request for sexual favors, “or engaging in other conduct of a sexual nature” (a term and definition currently so broad you could drive a truck through it). The law states that “actual knowledge is not required for the other elements of the offense.” So sliding into that person’s DMs might be fun now but could have drastic consequences in the future when viewed by a prosecutor.
The other elements would also have to be “proven” to be found guilty, such as the comments were unwelcomed (but who is to say when they comments became unwelcomed?), and that the conduct was prejudicial to good order and discipline, and/or service discrediting. We remain leery that there is meaning in what we call the terminal element – that the conduct was indeed of a nature to bring discredit on the armed forces. In many other Article 134 offenses, it seems assumed by the allegation itself.
Although Sexual Harassment has been punishable under the UCMJ for a while now, this new law has some overly broad definitions that could be especially troublesome to servicemembers now, for judges and panels in rendering findings, and for the appellate courts later.
For questions about your own sexual harassment investigation, we recommend you find learned and experienced counsel
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