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Will making sexual harassment an explicit crime help the military crack down? Experts say maybe

February 1, 2022

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The Biden administration reiterated Congress’ decision to explicitly criminalize sexual harassment in the military through an executive order last week; however, the jury is still out on whether it will create real change in the services.

The executive order and 2022 Defense Authorization Act criminalize sexual harassment under the Uniform Code of Military Justice and ensure that an independent investigator outside of the chain of command looks into all claims of sexual harassment.

“It’s just basically semantics, in all honesty because sexual harassment has been criminalized in the military for more than 30 years, they just didn’t specifically identify it as an enumerated offense,” said Sean Timmons, a managing partner at Tully Rinckey, to the Federal News Network. “Now it’s specifically outlawed under Article 134.”

In the past, sexual harassment would have been considered a violation of a lawful order. Now, harassment is specifically pointed out as a crime, rather than cloaking it under another offense.

“The idea is to streamline the notice to the individuals that this conduct is prohibited. A lot of sexual harassment training was not really taken seriously,” Timmons said. “When individuals in training for sexual harassment, a lot of the individuals in the audience in the theater would fall asleep during it not really pay attention to it, and didn’t take it seriously. The idea behind giving it its own specific offense is to make it clear to the members of the armed forces that this is a very serious crime, and it’s not going to be tolerated.”

Timmons said the change could broaden the scope of what the military is willing to prosecute. The Pentagon has more violations to put on paper when charging someone and puts the defense in more of a bind.

The changes are getting positive reviews from advocacy groups like Not In My Marine Corps, an organization fighting sexual assault and harassment in the military, but they are wary as well.

“Making sexual harassment a crime against a crime under the UCMJ and removing direct commanders from the decision making for prosecuting these kinds of cases has been something that we’ve been fighting for,” Erin Kirk-Cuomo, co-founder of Not In My Marine Corps said. “It’s by no means, you know, a point where we can let up on the pressure, because there’s still a lot to be done.”

Timmons also has concerns about the ability of the new law and executive order to make real change.

“There’s been a bulletin board in every hallway in the military, and it says writing bold letters ‘Do not rape anybody and do not sexually harass anybody.’ Yet the behavior is still continued unabated predictably, even though they’ve made strident efforts to try to communicate, ‘Don’t do these certain things,’” he said. “I think the bottom line will be individuals need to be careful about how they communicate with each other, and try to keep a professional decorum at all times, which is difficult in a military environment where you’re on duty 24/7. I would crack if I had to maintain professional bearing 24/7.”

Kirk-Cuomo and Timmons said the new delegation of sexual harassment will have some administrative upsides. The Department of Defense does not keep specific data on how people are harassed; the new law will make it easier to sift through future charges to see exactly where harassment is taking place.

Some are asking why the White House released an executive order when Congress already passed a law making sexual harassment a crime.

Timmons says it is a way of being overt.

“It’s a public policy pronouncement to just make it clear, through the press, and through general dissemination to the ranks, that this is taken very seriously,” he said. “I think it was just another way to disseminate information.”

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