Legal books line a bookshelf in a courtroom next to the American flag. (Daniel Blackwell/U.S. Air Force)
Military commanders will lose their authority to overturn court-martial findings in the most serious sexual harassment cases as of Jan. 1, the Pentagon said Tuesday.
Under a plan approved by Congress, certain sexual harassment cases under the Uniform Code of Military Justice — the military’s set of laws — will be investigated and prosecuted by the new Offices of Special Trial Counsel in each service branch.
The Defense Department issued a statement Tuesday confirming the special trial counsels of the Army, Air Force, Navy and the Marine Corps will take over Article 134 sexual harassment cases.
Article 134 is the military’s “general article” covering “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial,” according to the U.S. Manual of Courts-Martial.
Article 134 has several subsections dealing with specific violations, including disloyal statements, fraternization, underage drinking, abusing animals, adultery and gambling with subordinates.
Sexual harassment violations under Article 134 are defined as knowingly making sexual advances, demands or requests for sexual favors. The advances must also have been unwelcomed, and a reasonable person would believe submission or rejection to the advances would have an effect on the targeted person’s job, pay, career, benefits or entitlements. It is also defined as severe, repetitive or pervasive, creating a hostile environment and being to the prejudice of good order and discipline, and a discredit on the armed forces.
The maximum penalty for each count of sexual harassment is a dishonorable discharge for enlisted personnel or dismissal from service for officers, total forfeiture of pay and allowances, and confinement for up to two years.
The Navy’s special trial counsel will handle cases involving Coast Guard members, while the Space Force will fall under the Air Force counsel.
Congress has acted to remove commanders from exercising discretionary authority on prosecution and punishment for 14 “covered offenses” of the UCMJ, including nearly all sex crimes, kidnapping, manslaughter and murder.
Some lawmakers said they pushed for reforms after receiving several reports of “command influence” in which charges were not brought against senior officers or findings were overturned following courts-martial.
The special trial counsels were established in late December 2023 and began taking cases immediately.
In past cases, officers were sometimes allowed to accept retirement, with a reduction in rank, with an honorable discharge in lieu of dismissal, the military’s equivalent of a dishonorable discharge for officers.
Lawmakers who supported removing commanders from the decision-making process said they hoped it would create a more professional prosecution and punishment of offenders.
“We’re trying to professionalize how these cases are handled,” Sen. Kirsten Gillibrand, D-N.Y., said in May 2021. “We are creating a state-of-the-art [District Attorney’s] office within the military to handle all serious crimes.”
The addition of sexual harassment cases to the slate of crimes handled by special trial counsels was delayed until 2025 to allow the new offices more time to develop reporting methods and standards.
Before Jan. 1, decisions to charge service members with sexual harassment under Article 134 were made by unit commanders. The commanders also reviewed the outcome of cases that went to court-martial and had the unilateral power to vacate sentences or overturn verdicts with which they disagreed.
The new rules mean appeals of courts-martial handled by the special trial counsels can only be reviewed and altered by the secretaries of the service branches.
Conviction for sexual harassment under Article 134 is considered a felony, which could limit the guilty person’s ability to get a job, vote, and buy firearms, among other civilian penalties, once the person has left military service.
However, not all sexual harassment charges will be filed as violations of Article 134, said Michelle McCaskill, spokeswoman for the Army Office of Special Trial Counsel.
“Both Article 93 (cruelty and maltreatment) and Article 92 (failure to obey order or regulation) will remain a separate option to prosecute sexual harassment allegations,” she said. “Allegations of misconduct which violate Articles 92 and 93 but not Article 134 are not covered offenses, therefore OSTC would not be able to exercise authority over those allegations unless the subject is also suspected of committing a separate covered offense.”
