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Sex. Harassment

We now have a specific offense related to sexual harassment. Allegations of sexual harassment used to be prosecuted under Article 92 (as an orders violation) or Article 93 as cruelty, oppression, or maltreatment.

Sexual Harassment falls under the jurisdiction of the Office of the Special Trial Counsel (OSTC). That means that the lawyers at OSTC, not your commander, make the initial decisions about prosecuting you at court-martial. 

As military defense counsel we regularly deal with the OSTC lawyers and have defended many cases of "domestic violence" under the old rules and are doing that now under the new rules.

For background, here are the old rules. We mention them because some of the concepts from the old rules are likely to come up with interpreting and applying the new rules.

Sex Harassment

Task & Purpose published an article this January, Sexual harassment is now officially a crime in the U.S. military. They are mostly wrong about past efforts to prosecute sexual harassment.

For many years there have been regulations in place which make sexual harassment prevention and accountability their purpose. The regulations were considered "punitive," which meant there could be punishment for violations under many circumstances. However, the punishment or prosecution was conducted using a charging an Orders violation under Article 92 of the UCMJ. Violations of many other regulations are also prosecuted under this article. So there was no bar to prosecuting sexual harassment cases. In some other cases, the prosecution proceeded under the UCMJ article prohibiting maltreatment. It is true that the definition of sexual harassment and the procedures were at time vague, difficult to discern and apply, or were nonexistent. So,

As a result of the National Defense Authorization Act for Fiscal Year 2022, the President was tasked to create an enumerated offense of sexual harassment under UCMJ art. 134.

The President issued an Executive Order 14062, January 26, 2022, making a number of changes to the Manual for Courts-Martial. Included within that EO was a specified offense of sexual harassment. If you are accused of sexual harassment as a court-martial charge under Article 134 of the Uniform Code of Military Justice, the prosecution has to prove the following elements beyond reasonable doubt.

 (1) That you 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 (probably meaning the other person didn't like it);

 (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;

 (Here we thinks there is a mix of objective and subjective beliefs, based mainly on what the other person thinks or perceives. Normally, that means that other persons would in the same situation believe the acts and words are harassing--that's the objective part. And then, subjectively what does the other person think. Some litigation may come up about what this requirement actually means. Your military defense counsel should discuss this with you.)

 (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) That your conduct was so severerepetitive, or pervasive that a reasonable person would perceive, and a certain person (the alleged victim) did perceive, an intimidating, hostile, or offensive working environment; and

 (What this potentially means is that a minor one time act may not be enough for a court-martial conviction. That does not mean that the one time situation could not come up in an Article 15 case.)

 (4) That, under the circumstances, your conduct was either:

 (i) to the prejudice of good order and discipline in the armed forces;

 (This most likely will come up in situations where the alleged victim is another servicemember, primarily from your unit or even a civilian employee of your unit.)

 (ii) of a nature to bring discredit upon the armed forces; or

 (This is most likely to come up if the alleged victim is a civilian who is not part of your unit or if it happens to a civilian out in the local community.)

 (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

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