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Navy pulls sexual harassment investigation authority from commanders

 In ARTICLE 134, Blog, Investigations, Uncategorized

Navy Secretary, Carlos Del Toro, has withdrawn the sexual harassment investigation authority for commanders to conduct their own investigations. Instead, Commanders who receive formal complaints of sexual harassment must forward the complaints within 72 hours to the next higher-level commander in the chain of command. The higher-level commander will have the authority to appoint an investigating officer to investigate the complaint. The Department of Defense (DoD) and Department of the Navy (DON) policies require that all formal complaints of sexual harassment be investigated. The Navy addressed this new policy in an ALNAV. ALNAVs are messages directed to all Navy units and Marine Corps. This action reflects the new focus of senior leaders now that sexual harassment is a crime under the UCMJ.

How will Navy Sexual Harassment investigations change?

This policy is meant to be a stand-in order until the Department of the Navy funds, staffs, and trains an independent, professional capability to investigate formal sexual harassment complaints. DOD recently established sexual harassment as a punitive offense under the Uniform Code of Military Justice. The Navy says they will make additional revisions to their policy and procedures regarding sexual harassment investigation within 180 days of the DOD instruction which became effective in early 2022. President Joe Biden signed into law Public Law 117-81. This action was part of the National Defense Authorization Act for Fiscal Year 2022. The language of the law makes sexual harassment a stand-alone crime under the UCMJ. Defined and codified under a new subsection of Article 134, sexual harassment is now illegal in the military.

How will the Navy appoint investigation officers?

The Policy became effective Friday April 20, 2022. The Navy requires Commanders, Commanding Officers, and Officers-in Charge of unit, vessel, or facility in receipt of a formal complaint of sexual harassment made by someone they supervise will ensure the complaint is forwarded to the appropriate authority. The next higher-level commander is responsible for appointing an investigating officer. This investigating officer must be from outside the command of both the subject and complainant. The appointing authority will ensure the investigating officer selected is not familiar with either the subject of the investigation or the person who filed a complaint. There is an exception to these rules. If the next higher-level commander determines these requirements would unreasonably interfere with the command’s ability to complete its mission, then the appointing authority can recommend assigning an investigating officer from within the same command. If this is necessary, they must include the reason or reasons and obtain an endorsement from the first Flag or General Officer. Commands cannot delegate appointing authority below the O-6 level.

What happens when the investigation is complete?

Once the sexual harassment investigation is complete, the commander who convened the investigation will determine the appropriate action depending on the investigation’s result.  Depending upon whether the allegations were founded or unfounded, this next higher-level commander may take no action, make disciplinary or administrative action such as Flag Officer Letter of Instruction or Captain’s Mast, forwarding to another investigative agency or appointing another investigator for further investigation, and/or initiate an administrative separation of the person investigated for sexual harassment.

What does this mean for Sailors accused of sexual harassment?

This new policy means the Navy will be expending more resources to achieve higher rates of punishment for those suspected of sexual harassment. The military’s net is cast wider and could result in more false allegations. This means Sailors accused of sexual harassment unjustly are at greater risk or career ending action.  Sailors under investigation for sexual harassment should do everything they can to mitigate the harm from a faulty or unwarranted investigation by obtaining legal counsel early in the process.

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