New army directive compels involuntary separations for sexual harassment
Army Directive 2022-13 Reforms To Counter Sexual Harassment/Sexual Assault in the Army
Sexual harassment investigations
In September of 2022, the Army put out a new Directive directing commanders’ actions regarding sexual harassment investigations, administrative and criminal processes for alleged offenders, and protective requirements for alleged victims. For those Soldiers who are under investigation for sexual harassment in the military and found guilty, their commanders must take the following actions:
- Commanders initiate involuntary administrative separation proceedings for all Soldiers against whom there is a substantiated complaint of sexual harassment.
- Commanders investigate every sexual harassment complaint with sufficient information to indicate a credible complaint.
- The directive also requires commands to follow Title 10 processing timelines, ensure Investigating Officers meet certain qualifications for a sexual harassment investigation, and outlines Military Protective Orders and their disposition regarding notification of civilian authorities.
Leadership failure at Fort Hood leads to new SHARP initiatives
These changes followed the Department of Defense (DoD)-directed 90-day Independent Review Commission which provided comprehensive recommendations across DoD to counter sexual assault in the military. DoD established this independent review commission after Fort Hood Independent Review Committee provided recommendations to improve the effectiveness of the SHARP Program.
This directive, while rightly providing more protection for Soldiers from sexual harassment, will have the collateral effect of creating greater risk for those accused of unintentional or minor infractions founded in a sexual harassment investigation. In the wake of the scandal at Fort Hood, the government has cast an extra wide net to deal with who are investigated for sexual harassment in the military. The Army relieved Several leaders from their leadership positions following an investigation that found leaders failed to investigate SPC Vanessa Guillen’s sexual harassment claims. SPC Guillen was found murdered in 2020 shortly after lodging complaints about a fellow Soldier.
Soldiers who are investigated for sexual harassment in the military risk involuntary separation proceedings
The biggest risk for Soldiers accused of sexual harassment is that when an investigation is founded, the commander will initiate involuntary separation proceedings. If a Soldiers has more than six-years of service, they can be represented by legal counsel at separation board. At this board, the Soldier can refute the investigation findings and fight to be retained on active duty or reserve service. This board can make all the difference in keeping a career and military retirement, the favorable characterization of service required to maintain benefits and career potential, and the ability to care for and support one’s family.
Substantiation of sexual harassment allegations
Substantiation of sexual harassment is a bit of a low bar and investigators can meet that bar easily. The definition of sexual harassment can vary from an accused knowingly making unwanted sexual advances and demanding a quid pro quo to subordinates to the perception by the alleged victim that the accused “created an intimidating, hostile, or offensive duty or working environment due to the severity, repetitiveness, or pervasiveness of their conduct.” One sounds terrible and predatory, the other could in fact, just be a terrible miscommunication that can be corrected through training and rehabilitation. Regardless, the new statute under Article 134 lists all these elements as a criminal offense for those who are investigated for sexual harassment in the military.
Minor infractions of sexual harassment and rehabilitation
The new Army directive does state that commanders have the authority to determine whether infractions are minor and whether rehabilitation is an option. “A commander may rehabilitate a Soldier against whom there is a minor substantiated complaint of sexual harassment, as determined by the commander in consultation with the servicing judge advocate. The first O-6 commander in the subject’s chain of command will make a determination as to whether a substantiated sexual harassment complaint is minor. Rehabilitation includes sexual harassment refresher training, individual corrective counseling, and monitoring of behavior for a period of time.
The exceptions to this rehabilitation authority include: “Substantiated complaints wherein the offender attempted or engaged in quid pro quo behavior, sexual touching offenses where the offender was the superior in a superior-subordinate relationship, or substantiated complaints involving repeat offenders are not appropriate for rehabilitation.” However, even with rehabilitation opportunities, it appears the directive requires that findings of sexual harassment will result in a Soldier facing involuntary separation proceedings.
Mitigating Risk to Soldiers careers and livelihood
An experienced lawyer can assist the accused in mitigating risk to the accused. Soldiers should immediately seek legal counsel when under investigation for sexual harassment in the military. An experienced attorney counsels the accused in how to response to investigators in a manner that protects their rights and doesn’t assist the investigators in making their case. Soldiers should never give any statements to investigating officers prior to speaking with a lawyer. Making a statement without proper guidance can either assist the investigator in making their case against the accused or risking an additional charge of making a false official statement. Additionally, the directive requires that if there is a perceived threat to the victim, the commanders will initiate a Military Protective Order. This makes it very essential for the accused to avoid contact with the alleged victim at all costs. Military law enforcement is also required to notify the appropriate civilian authorities of the MPO by entering the MPO into the National Crime Information Center (NCIC) Protective Order File. This means the record could follow a Soldier into the civilian world risking employment opportunities.