Sexual Assaults in Military Continue to Rise, but Major Legal Reform Won’t Take Effect for Years

You may have heard a law made sexual harassment illegal in the military, but what does that mean?

Sexual assault has always been illegal under Article 120 of the Uniform Code of Military Justice -- Rape and Sexual Assault. Rather than made illegal by their own article, cases of sexual harassment were instead broadly covered under Article 134. Otherwise known as the General Article, it criminalizes "all disorders and neglects to the prejudice of good order and discipline in the armed forces, [and] all conduct of a nature to bring discredit upon the armed forces."

Related: Biden Order Elevates Sexual Harassment as Separate Military Crime After Guillen Murder

A law signed by President Joe Biden in early 2022 changed that. Public Law 117-81, the National Defense Authorization Act for Fiscal Year 2022, contains language making sexual harassment a stand-alone crime under the UCMJ. This new law defined and codified sexual harassment, making it illegal under a new subsection of Article 134.

Background

The most recent Workplace and Gender Relations Survey found that in fiscal year 2019, 6,236 service members reported being sexually assaulted, a 3% increase from 2018. A 2020 Workplace and Gender Relations Survey of Active Duty Members was postponed due to COVID-19.

While sexual assault and sexual harassment are related problems, sexual harassment in the military has not been consistently tracked. However, in 2019, the military reported 1,021 sexual harassment complaints, up 10% from the previous year. On Jan. 26, 2022, Biden signed an executive order, updating the Manual for Courts-Martial to include sexual harassment as a crime, as directed by Public Law 117-81.

New Law Makes Sexual Harassment a Crime In Military

The 2022 law defines sexual harassment as "conduct in which a person knowingly makes unwelcome sexual advances, demands or requests for sexual favors, or knowingly engages in other conduct of a sexual nature."

That includes sexual conduct that would lead a reasonable person to believe submitting to is:

• A term or condition of that person's job, pay, career, benefits or entitlements;
• Used as a basis for decisions affecting that person's job, pay, career, benefits or entitlements;
• So severe, repetitive or pervasive that it creates an intimidating, hostile or offensive working environment.

This conduct is also such that it has the potential to disrupt good military order or bring discredit upon the military.

Current Sexual Assault Reporting Process

According to the Department of Defense Sexual Assault Prevention and Response Office (SAPRO), active-duty members subjected to sexual assault in the military currently have two options for reporting the crime: restricted reporting and unrestricted reporting.

Restricted Reporting

Restricted reporting is confidential. The victim may report the crime to their sexual assault response coordinator (SARC), sexual assault prevention and response victim advocate (SAPR VA) or health-care providers, according to SAPRO.

Confidential restricted reporting can ensure the victim receives health care, advocacy services and legal advice without notifying command or law enforcement officials. The command will be notified that "an assault" has occurred and provided very limited details that do not include the identity of the victim, SAPRO says.

The restricted reporting option does not trigger an investigation, and as a result, the alleged perpetrator will not be investigated or charged. The victim must also return to their workplace as normal; even if it means working with the person who allegedly assaulted them, they will not receive any victim protections, such as a military restraining order or reassignment of themselves or their attacker to a different command or location. However, the victim will have the option of reporting their alleged attacker to the CATCH program, an anonymous program designed to track and capture serial offenders.

A restricted report allows the victim to report the crime to specially trained personnel who help them receive health care, advocacy services and legal advice without notifying command or law enforcement officials. This policy provides victims some personal space and time as well as increased control over the release and management of their personal information; it is intended to empower them to seek relevant information and support to understand exactly what is involved in a criminal investigation.

A member may change their restricted report to an unrestricted report at any time if they wish to proceed with criminal charges.

Unrestricted Reporting

Unlike restricted reporting, unrestricted reporting immediately triggers an official investigation.

According to SAPRO, this option is recommended for victims of sexual assault who desire an official investigation and command notification in addition to health care, victim advocacy and legal services. When selecting unrestricted reporting, one should use current reporting channels including:

• Law enforcement
• Chain of command
• Sexual assault response coordinator (SARC)
• SAPR victim advocate (SAPR VA)
• Health-care personnel

Unrestricted reporting triggers a full-blown criminal investigation. Evidence will be gathered, interviews will commence and the victim may be assigned a designated special victims' counsel to serve as their attorney, according to SAPRO. Even though that process could be very difficult, this option allows the victim to receive protection from their assailant and opens the door for prosecution of the offender. Unrestricted reporting also opens the possibility of expedited transfer to a new command and protection services for the victim.

New Rules for Reporting Sexual Harassment

The law also created a new independent investigation system for sexual harassment incidents; however, this portion of the law will not be effective until January 2024.

According to the law, within 72 hours of receiving a sexual harassment complaint, the commanding officer must forward the complaint to the newly formed independent investigative team. The commanding officer must also forward the formal complaint or a detailed description to the next superior officer in the chain of command. The local command is blocked by law from participating in any aspects of the investigation, or possible legal action resulting from the complaint.

The law also dictates that the independent investigative board complete their investigation within 14 days.

It is unclear if DoD will apply this new investigative board rule to cases of sexual assault as well as sexual harassment.

Conclusion

While sexual harassment is now formally illegal under the UCMJ, there is no servicewide documented procedure for safe and anonymous reporting of it, like there exists for sexual assault.

Although some branches have begun moving all sexual harassment case investigations and judicial authority outside of the chai-of-command of the affected parties, the new external independent investigative system for sexual harassment incidents is not mandated to be operational until late 2023.

See: Congress Pushes to Remove Sexual Harassment Prosecutions from Chain of Command

Until then, victims of sexual harassment will either have to rely on their local command to take action, or submit a complaint of sexual assault using current regulations if physical contact occurred.

Victims of sexual assault can also contact the Safe Helpline, a secure, confidential and anonymous crisis support service specially designed for members of the military community affected by sexual assault. The Safe Helpline is available via a mobile app or on any electronic device. It lists military, civilian, religious and law enforcement contacts to assist victims of sexual assault.

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