What is Article 134 UCMJ Military Sexual Harassment?
Sexual Harassment in the Military is a serious crime.
NOTE: This sexual harassment statute was originally proposed as Article 120d UCMJ. But, it was not passed by Congress. Instead, Sexual Harassment was passed as Article 134 UCMJ and signed into law in January 2022.
Military Sexual Harassment is a UCMJ Article 134 offense. As such, the behavior is not a crime unless the sexual harassment is, “of a nature to bring discredit upon the armed forces” and/or is “prejudicial to good order and discipline.” These elements are fact-dependent. In addition, conduct “prejudicial to good order and discipline,” must have a “direct and palpable” negative effect on military readiness or mission accomplishment.
Contact an experienced Article 134 UCMJ, Military Sexual Harassment Defense Lawyers to discuss your case.
The Crime of Sexual Harassment in the Military, Article 134 UCMJ, is described below.
IN GENERAL – Any person subject to this chapter who commits sexual harassment against another person shall be punished as a court-martial may direct.
UCMJ Article 134 Sexual Harassment ELEMENTS.
A person subject to this chapter commits sexual harassment when
(1) such person knowingly:
(A) makes a sexual advance;
(B) demands or requests a sexual favor; or
(C) engages in other conduct of a sexual nature;
(2) the conduct described in paragraph (1) that such person committed is unwelcome;
(3) under the circumstances, on the basis of the record as a whole, such conduct would cause a reasonable person to—
(A) believe that submission to, or rejection of, such conduct would be made, either explicitly or implicitly, a term or condition of a person’s military duties, job, pay, career, benefits, or entitlements;
(B) believe that submission to, or rejection of, such conduct would be used as a basis for military career or employment decisions affecting that person; or
(C) perceive an intimidating, hostile, or offensive duty or working environment due to the severity, repetitiveness, or pervasiveness of such conduct; and
(4) a person, who by some duty or military-related reason works or is associated with the accused, did reasonably believe or perceive as described in subparagraph (A), (B), or (C) of paragraph (3).
The behavior must be “of a nature to bring discredit upon the armed forces” and/or be “prejudicial to good order and discipline.”
OTHER CONDUCT (OF POTENTIAL SEXUAL HARASSMENT)
For purposes of subsection (b)(1)(C), whether other conduct would cause a reasonable person to believe it is of a sexual nature shall be dependent upon the circumstances of the act alleged and may include conduct that, without context, would not appear to be sexual in nature.
LOCATION AND MEANS OF MILITARY SEXUAL HARASSMENT
An act constituting sexual harassment under this section
(1) may occur at any location and without regard to whether the victim or accused is on or off duty at the time of the alleged act;
(2) does not require physical proximity between the victim and the accused; and
(3) may be transmitted through any means, including written, oral, online, or other electronic means.
Providing a safe work environment for your military staff requires understanding sexual harassment. This guide explains what sexual harassment is in the military in light of the new military sexual harassment law, Article 134 UCMJ.
What Is Sexual Harassment in the Military
Sexual harassment in the military has become a hot topic in recent years – and for a good reason. Research shows that up to 25% – 85% of women have experienced sexual harassment in the military. The large gap in this number is indicative of how underreported cases of sexual harassment are. Almost 60% of these women never file a complaint. Men can also be victims of sexual harassment, but it is not as prevalent.
Sexual harassment is a broad spectrum, and while some signs are subtle, they are still considered harassment. Therefore, it is essential to recognize sexual harassment in the military to protect victims. Keep reading to learn more about the types of sexual harassment and what to do if it’s happening in your military.
What Is Sexual Harassment in the Military?
Sexual harassment is a variety of offensive, unwelcome, and sexual behaviors. It comes in many forms, from subtle to severe. There are also some overt forms of harassment. However, there are also more subtle behaviors.
Sexual harassment can be physical, verbal, or written. It can also happen online. Here are some primary forms of sexual harassment:
- Unwanted touching
- Requests for sexual favors
- Sexually suggestive comments
- Staring or leering at someone
- Questions about someone’s sex life
- Non-sexual touching
- Teasing and offhand comments
While some of these forms of military harassment are not considered illegal in the eyes of the law, many are punishable offenses that deserve reprimanding. Conversely, many forms of sexual harassment are unlawful and warrant help from a military supervisor or a legal team.
Sexual harassment can happen to both men and women. Additionally, the perpetrator can also be a man or a woman. It can occur in the military or through texts and emails.
What Are Types of Sexual Harassment?
Sexual harassment comes in many different forms. The behavior varies from subtle to severe, but all are considered serious regarding military harassment. These behaviors create uncomfortable working conditions that are grounds for firing.
Physical Contact Without Consent
One of the most common and obvious types of sexual harassment is physical contact without consent.
This includes touching someone in their private areas and being touchy in non-private areas. You don’t have to wait until these acts are often happening. Even in one situation over sexual contact without consent, you should report the incident immediately.
These acts are illegal, and there are sexual harassment laws in place to ensure that the perpetrator suffers the consequences.
Non-sexual Touch Without Consent
There are instances where a non-sexual touch can be sexual harassment. Although this type of touching without consent is less severe, it is still pervasive and makes for a hostile working environment.
Getting too close to someone, not respecting their personal space, or putting them into a corner can all be considered harassment. Rubbing an employee’s shoulder or placing a hand on their knee is enough to cross an inappropriate boundary. It constitutes unlawful behavior in the military, even when the employee does not express discomfort.
If you’re being sexually harassed or accused of sexual harassment in the military under Article 134 UCMJ, a well-experienced military defense attorney can help you get the justice you deserve.
Jokes or Comments With Sexual Context
It might come as a surprise, but even jokes and comments are ways to sexually harass an employee.
Pervasive and offensive jokes can create an unsafe and uncomfortable working atmosphere for other employers. Even though some coworkers might share the same sense of humor, it is completely inappropriate for others.
Making comments about someone in a sexual manner is also a form of harassment. These comments make someone feel objectified, threatened, and unsafe. Again, this creates a hostile working environment.
The following are inappropriate comments that may constitute Article 134 Sexual Harassment in the Military:
- Jokes about someone’s sex life
- Comments about what someone is wearing
- Insults about someone’s sexuality
- Gender offensive language
- Repeated comments about someone’s looks
This list is not exhaustive, as many other types of comments are harassing. These will be specific to the individual and circumstance, but all are offensive and need to be stopped.
Crude Leering or Staring
Although one might claim innocence because there is no physical contact or inappropriate touch, staring is also considered harassment.
Leering at someone is enough to make them feel uncomfortable. However, it can also make someone feel unsafe. This includes ogling or making suggestive facial expressions. This is especially true if the behavior is often happening.
Be sure to speak to the person directly or to a superior to stop the behavior.
Sexually Suggestive Gestures
Behaving crudely and making sexually suggestive gestures is also a form of harassment. Again, this makes others feel uncomfortable, even if it is not directed at them.
These are some gestures and behaviors that are considered forms of harassment:
- Sexually suggestive actions such as hip thrusts or mimicking sexual positions
- Simulating sexual gestures with your hands
- Pretending to grope, touch, squeeze or slap a body part
- Offensive gestures using your mouth or tongue
- Use the middle finger in a sexual or offensive manner
These examples of sexually suggestive gestures are a form of harassment. If you feel uncomfortable with this behavior in the military, speak to your supervisor about these employees.
How to Prevent Sexual Harassment in the Military
Preventing sexual harassment in the military starts with the right policies and procedures for all staff. Keeping employees safe is the job of the supervisors and the HR department. Here are some ways military service members can prevent sexual harassment in the military.
Clear Definition for Sexual Harassment
Though this might seem obvious, you need to clearly describe what constitutes sexual harassment. In addition, your staff must understand, in detail, the different types of sexual harassment and how to avoid them. Frequently, subtle forms of harassment might go unnoticed. However, they can escalate without drawing attention to these behaviors and lead to unwanted behavior. Ensure that every staff member knows what constitutes sexual harassment.
Staff Sexual Harassment Training
Preventing sexual harassment means having training programs in place for your team.
This means having policies to manage a complaint, file a report, and intervene with inappropriate behavior. The HR department should also have a clear policy against sexual harassment. This policy should promote a safe working environment for everyone.
Investigations are Required for Every Report
Keeping an open-door policy when it comes to staff opening up about harassment issues in the office is a way to promote safety for everyone. For accountability, you can also have an extra person in the room for a formal complaint of a sexual nature.
Staff members in a managing or supervising position must know how to deal with sexual harassment complaints.
Military leaders must take complaints seriously and also take action. For staff to feel confident in filing a report, managers must ensure that there are serious consequences.
Implement Repercussions for Sexual Harassment
Having policies in place means following through if there are incidents. Your staff must know that there will be repercussions there are rules broken around sexual harassment.
Be sure to be firm if someone breaks this policy and make an example of anyone who chooses to sexually harass another employee. This allows your staff to trust you and come to you with future complaints.
What to Do if You’re Sexually Harassed at Work
If you’ve been sexually harassed in the military, one of the first things you should do is talk to your direct manager. However, it might be challenging to speak to your superiors in some cases.
Studies show that incidences go unreported because of the masculine culture at work and fear of retaliation. The effects of sexual harassment include trauma, anxiety, and embarrassment, making it difficult to speak about.
There are sexual harassment laws that can help you, and with the right legal team on your side, you can take action with your sexual harassment claim. Get more information about sexual harassment and how legal help can be more effective than talking to your manager.
Knowing What Is Sexual Harassment in the Military and How to Avoid It
Understanding the types of sexual harassment is the first step in knowing your rights. For example, if you’re feeling uncomfortable with an employee’s behavior in the military, chances are it constitutes sexual harassment. Physical contact, non-sexual contact without consent, comments and jokes, and sexual gestures are all forms of sexual harassment against the law.
If you or someone you know is facing sexual harassment allegations in the military under Article 234 UCMJ, then contact our military defense lawyers and get the legal help you deserve.