The Department of Defense has passed multiple reforms in recent years as it attempts to stamp out sex crimes in the military. Despite this, the estimated rates of sexual harassment and sexual assault remain alarmingly high. According to a RAND study released in 2021, roughly one in 16 women and one in 143 men experience sexual assault while serving in the military.
The latest change to combat these numbers occurred in January 2022, when President Joe Biden signed an executive order formally adding sexual harassment to the Uniform Code of Military Justice (UCMJ). The addition of this less serious offense as a standalone crime aims to hold military members accountable for misconduct that could lead to more egregious sexual assault.
The executive order was a required follow-up to the bipartisan military justice reform passed in December 2021. This bill, known as the National Defense Authorization Act (NDAA), included a package of several reforms addressing how the military handles sex crimes.
The NDAA defines harassment as making an unwanted sexual advance, demanding sexual favors, or committing other inappropriate sexual conduct where the victim believes that refusal could impact their career or personal safety. The language in this reform also specifies that harassment can take place in person or online, including the unwanted sharing of intimate or pornographic images.
Prior to this change, service members who committed sexual harassment could be charged under Article 92 Failure to Obey an Order or Regulation or Article 93 Cruelty and Maltreatment. Still, charges often had to be filed as part of other prosecuted crimes to end in a conviction. Also, Article 93 deals specifically with the relationship between superiors and subordinates. Advocates for military reform argued that these articles were insufficient to single out and stop sexual harassment.
The NDAA and January’s executive order follow similar changes to the UCMJ passed in 2019, when “revenge porn” was officially added as an offense. The action was in direct response to the Marines United scandal, where nude photos of female service members were posted online without their consent. At the time, the lack of specific legal language addressing the situation made it difficult to prosecute the individuals responsible.
New rules in the NDAA also strengthen protections against domestic violence by covering spouses and dating partners who may become victims of stalking. Previously, service members could only face repercussions under the UCMJ if they were married to the victim.
Another notable reform removes the prosecution of sexual harassment, sexual assault, domestic violence, and other sex crimes from the traditional military chain of command, handing over that responsibility to a newly formed “special trial counsel.” Also, an independent military legal office will now investigate sexual harassment allegations.
Momentum for the latest reforms stem from the outcry over the murder of Army Spc. Vanessa Guillen in April 2020 after she experienced sexual harassment. Guillen had confided in her family that a sergeant was sexually harassing her, but she was concerned her military career could suffer if she reported the incidents. Her murder was not directly related to that harassment, but it became a point of advocacy her family and supporters rallied around in the months following her death.
The message to service branches, commanders, and military prosecutors is clear—cases of sexual violence in the military need to be taken more seriously. However, an underlying worry is that the DoD will overreach its boundaries as it feels pressure to deliver more convictions under the new standalone offense of sexual harassment.
As a service member, this means you could be at risk if you’re caught in the wrong place at the wrong time. Don’t leave your military career and reputation up to chance—work with an experienced military defense attorney to defend yourself against sex crime allegations.
Joseph L. Jordan, Attorney at Law, has decades of combined experience as a former Army JAG officer and current court-martial lawyer. Our team handles cases worldwide for members serving in any branch of the military. So whether you’re a Sailor working at a U.S. naval base or a Soldier stationed abroad, we can help you fight for your freedom.