President Biden signed an executive order on Jan. 26 of 2022 that makes sexual harassment an offense under the Uniform Code of Military Justice (UCMJ). Fiscal 2022 National Defense Authorization Act mandated that the President make sexual harassment its own offense under Article 134 of the UCMJ.
The elements of Article 134 sexual harassment are as follows:
“(a) In General.-Not later than 30 days after the date of the enactment of this Act [Dec. 27, 2021], the President shall-
“(1) prescribe regulations establishing sexual harassment, as described in this section, as an offense punishable under section 934 of title 10, United States Code (article 134 of the Uniform Code of Military Justice); and
“(2) revise the Manual for Courts-Martial to include such offense.
“(b) Elements of Offense.-The regulations and the revisions to the Manual for Courts-Martial required under subsection (a) shall provide that the required elements constituting the offense of 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 that 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-
“(A) to the prejudice of good order and discipline in the armed forces;
“(B) of a nature to bring discredit upon the armed forces; or
“(C) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.”
Potential consequences of Article 134 Sexual Harassment allegations
The elements of Article 134 Sexual Harassment need to be proven for a person to be guilty of Article 134 Sexual Harassment. Often the military deals with these types of allegations through a command investigation or, as in the Army, a 15-6 investigation. Once the investigation is finished and the investigation concludes that the subject committed the misconduct outlined by Article 134 Sexual Harassment, then the commander must take a specific action. This administrative action is usually non-judicial punishment, or a General Officer Memorandum of Reprimand followed by a mandatory involuntary separation action. Service members with six or more years of service have a right to a separation board. At this board, their attorney can challenge the results of the investigation. An Officer’s separation board is called a Board of Inquiry or Show Cause Board. An Enlisted person’s board is called an Administrative Separation board, or AdSep.
If you are under investigation for Article 134 Sexual Harassment, call (757) 504-2815 or contact us now. Many service members try to explain their way out of what they think are misconstrued comments or actions. They end up confirming the time and place of the alleged misconduct and potentially being accused of making false statements. Don’t make any statements. Speak to an attorney before giving any statements or submitting to questioning.
For more information on this offense including the maximum punishment, potential defenses, and a discussion of the strengths and weaknesses of the prosecution’s
case, consult with an experienced military lawyer. See our case results here.
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