Understanding UCMJ Article 134: Sexual Harassment in the Military Explained

Sexual harassment has been a specific criminal offense under Article 134 of the UCMJ since January 2022. It covers unwelcome sexual advances, requests for sexual favors, and other sexual conduct that either affects someone’s job or career, or is so severe, repetitive, or pervasive that it creates a hostile environment. I’m Alexandra González-Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. Here’s what the offense requires, what it carries, how it differs from an equal opportunity complaint, and how to defend against it. First, the history.

For decades, sexual harassment in the military was handled mostly as an administrative matter through equal opportunity complaints, reprimands, and separations. When it was prosecuted, it was usually charged as maltreatment of a subordinate under Article 93, or as a general order violation under Article 92. In January 2022, the president signed an executive order creating sexual harassment as its own enumerated offense under Article 134. It applies to conduct on or after January 26th, 2022. Second, the elements.

The government has to prove you knowingly made sexual advances, demands, or requests for sexual favors, or engaged in other conduct of a sexual nature. The conduct was unwelcome, and under the circumstances, either a reasonable person would believe that submitting to it or rejecting it would affect their job, pay, career, benefits, or entitlements. Or the conduct was so severe, repetitive, or pervasive that a reasonable person would find the environment hostile or offensive, and the person actually did. Then, the Article 134 terminal element. The conduct was prejudicial to good order and discipline or service discrediting.

Notice what’s not required. The person doesn’t have to be your subordinate, and there doesn’t have to be any touching. Third, the punishment. Sexual harassment under Article 134 carries up to 2 years of confinement and a dishonorable discharge or dismissal for an officer. But most clients worry less about confinement and more about their careers.

Because a sexual harassment allegation that never reaches a courtroom can still produce a general officer memorandum of reprimand or letter of reprimand, a relief for cause, a bar to continued service, or an administrative separation with an other than honorable characterization. Fourth, who decides? Starting January 1st, 2025, sexual harassment became an offense the Office of Special Trial Counsel can take over when a formal complaint is substantiated. That puts these cases in front of the same independent prosecutors who handle sexual assault. For other cases, the command still decides.

Either way, the investigation that comes first matters enormously. Fifth, how cases start. Usually with a complaint. That might be an informal complaint to a supervisor, a formal equal opportunity complaint, a report to a SHARP or SAPR representative, an Inspector General complaint, or a statement made during a command climate survey or a commander’s inquiry. A formal complaint gets investigated, and the investigator decides whether it’s substantiated.

Many service members make the mistake of treating that administrative interview casually. It’s not casual. What you say can become evidence in a criminal case. Sixth, the fact patterns. Texts and social media messages to a co-worker after hours.

Jokes and comments in a shop or office that were part of the culture until someone objected. Repeated requests for a date after being told no. A supervisor’s relationship with a subordinate that ends badly. Comments about appearance during PT or on deployment. And allegations that arise in the middle of other conflicts.

A bad evaluation, a promotion fight, a divorce, a disciplinary action against the person making the complaint. Seventh, the defenses. Welcomeness. Messages and conduct often show a mutual, consensual, two-way exchange. And context matters.

The reasonable person standard. A single awkward comment usually isn’t severe, repetitive, or pervasive. And the law doesn’t criminalize rudeness. Job effect. There has to be a real basis to believe a career decision was tied to the conduct.

Knowledge. The government has to show you knew what you were doing was sexual in nature. And motive. When a complaint follows discipline or a performance problem, the timeline matters. Witnesses, full message threads rather than screenshots, and the climate of the unit at the time all help tell the real story.

Eighth, what to do. One, don’t respond to the complainant and don’t discuss the complaint with co-workers. That can be charged as retaliation or obstruction. Two, don’t give a statement to an EEO investigator, an investigating officer, or law enforcement without a lawyer. Three, preserve complete message threads, emails, calendars, and the names of witnesses.

Four, if you supervise the person, don’t take any personnel action against them without legal advice. Article 132, retaliation, is now prosecuted aggressively. Five, get a lawyer early because the administrative finding often decides whether criminal charges follow. At Gonzalez & Waddington, we defend sexual harassment allegations at every level, from the first EO complaint to a court-martial. And we often keep cases from ever reaching a courtroom by getting the facts in front of the investigator first.

So, what is sexual harassment under the UCMJ? A specific Article 134 offense since 2022, carrying up to 2 years and a dishonorable discharge, now within the reach of special trial counsel. Don’t respond, don’t retaliate, don’t give a statement, and get a lawyer early. I’m civilian military defense lawyer Alexandra González-Waddington with Gonzalez & Waddington. We defend service members worldwide.

You can learn more at ucmjdefense.com or call 1-800-921-8607 for a free confidential consultation. >> When the command knows you’ve got real defense, the game changes.