Sexual Harassment in the Army

May 8, 2022

Sexual harassment in the Army continues to be scrutinized by Congress, the Media, Senior Leaders, and the General Public as a whole. The Sexual Harassment/Assault Response and Prevention Program, or SHARP Program, is the official Program's name.

Sexual harassment in the Army is defined and regulated by AR 600-20, Chapter 7. "Sexual Harassment" is defined as:

Conduct that involves unwelcome sexual advances, requests for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career; or
- Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment; and
- Is so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the environment as hostile or offensive
Any use or condonation, by any person in a supervisory or command position, of any form of sexual behavior to control, influence, or affect the career, pay, or job of a member of the Armed Forces or a Civilian employee of the DoD
Any deliberate or repeated unwelcome verbal comment or gesture of a sexual nature by any member of the Armed Forces or Civilian employee of the DoD

The regulation goes on to state that there is no requirement of actual harm; if a reasonable person would perceive, and someone actually does perceive, the environment as hostile or offensive, then the behavior qualifies as sexual harassment.

Sexual harassment in the Army can be verbal (i.e. use of sexual terms, sexual comments), non-verbal (i.e. winking, whistling, blowing kisses), or physical contact (i.e. touching, grabbing, kissing, back-rubs). Of note, physical touching could also qualify as sexual assault, which is required to be investigated by CID. [*CID does not investigate sexual harassment. Therefore, if someone is informed that CID is investigating them, it is safe to assume that he/she has been accused of a felony, like sexual assault/rape. Anyone in this situation should contact an experienced military lawyer immediately.]

Furthermore, sexual harassment in the Army can include creating a hostile work environment or a "quid pro quo." A hostile work environment "can occur when Soldiers or DA Civilians are subject to offensive, unwanted and unsolicited comments, or conduct of a sexual nature. "Quid pro quo" is defined as "conditions placed on a person's career or terms of employment in return for favors.

Sexual harassment in the Army can be handled with the direct approach (the preferred method), through informal complaints, or through formal complains. The SHARP reporting and investigating process is explained more by Attorney Barry at this link.

Sexual harassment in the Army that is substantiated through an investigation typically has serious consequences. The most common adverse actions that one could face include a GOMOR, Article 15, Referred OER/NCOER, Separation Board, Board of Inquiry, and/or separation through the Army QMP. Put more succinctly, when a sexual harassment complaint is substantiated, the subject's career is in jeopardy, no matter how senior he/she may be.

UPDATE: On 20 September 2022, the Secretary of the Army implemented Army Directive 2022-13, available at this link. This Directive now makes initiation of separation mandatory for a substantiated sexual harassment complaint. Brigade Commanders can determine that a sexual harassment violation is "minor" and therefore not initiate separation. It is important to note that even if separation is initiated, it does not mean the Soldier in question will be separated. Enlisted Soldiers should read more about the separation process at this link and Officers should read more about the separation process at this link. This Army Directive makes quality legal representation even more important for anyone accused of sexual harassment in the Army.

UPDATE: Congress recently created a UCMJ Offense to address sexual harassment in the Army under Article 134. Sexual Harassment in the Army could always be punished at a Court Martial through Article 92, UCMJ; however, this additional article signals that Commands may start criminally pursuing sexual harassment, instead of handling it through nonjudicial and administrative means.

Anyone accused of sexual harassment in the Army should immediately consult an experienced Military Lawyer. While JAGs may be available, they typically do not provide the time and attention needed during and after an investigation. Furthermore, they are typically very inexperienced. Any Soldier accused of misconduct can hire a Civilian Attorney to assist.

This article was written by Attorney Matthew Barry.

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.