Sexual harassment will be its own unique crime under the Uniform Code of Military Justice following an order by President Joe Biden on Wednesday, marking the latest effort to stamp out sex crimes in the ranks.
The president's executive order elevates the offense following an overhaul of military sexual assault prosecutions by Congress. Momentum for that change was bolstered by the outcry over the murder of Fort Hood, Texas, soldier Vanessa Guillén in 2020 after she was harassed. The White House said the order also strengthens military protections against domestic violence and the “wrongful broadcast or distribution of intimate visual images,” though it did not immediately provide details.
Service members who commit sexual harassment could already be charged under two sections of the UCMJ, but charges had often been filed as part of other prosecuted crimes. Critics say the military has not done enough to single it out and stop harassment.
The Army found that Guillén was harassed by a supervisor but her command didn't take action.
"This feels so unreal. My little sister shed light on the epidemic of sexual misconduct in the military," Mayra Guillén, the murdered soldier's sister, wrote in a tweet Wednesday about Biden's executive order.
White House press secretary Jen Psaki told reporters Wednesday the executive order "honors the memory of Army Spc. Vanessa Guillén, whose experience with severe sexual harassment was followed by a brutal murder, catalyzing national attention to the scourge of sexual violence in our military."
Robert Capovilla, a defense attorney who represented a noncommissioned officer accused of harassing Guillén and a former active-duty judge advocate in the Army JAG Corps, said in an interview with Military.com that the clear message being sent to service branches, commanders and military prosecutors is that such cases need to be taken more seriously.
"I think you're going to see an uptick in the number of cases that are actually going to be prosecuted," said Capovilla, the founding partner of the Capovilla & Williams military defense law firm based in Georgia.
But Capovilla said he worries about an overreach by the military as it feels pressure to show more sexual harassment convictions under the new stand-alone offense.
Sexual harassment cases can now be prosecuted under Article 92 of the UCMJ, which deals with violations of a general order or regulation, Capovilla said. The offenses can also be criminally charged under Article 93, but that part of the UCMJ deals specifically with the relationship between superiors and subordinate troops.
Wednesday's executive order on sexual harassment was required by the annual defense policy bill Biden signed into law last month.
The bill, called the National Defense Authorization Act, or NDAA, required Biden to "prescribe regulations" making sexual harassment a stand-alone crime in the UCMJ within 30 days of signing the legislation.
The provision was part of a package of major reforms contained in the NDAA relating to how the military handles sex crimes.
Most notably, the NDAA largely removes commanders from prosecutorial decisions on sexual assault and related crimes, and gives that responsibility to newly created "special trial counsel." The NDAA also requires independent investigations into sexual harassment allegations.
Though the reforms were considered some of the most significant changes to the UCMJ in its history, they did not go as far as some lawmakers and advocates have pushed for. Those lawmakers and advocates want almost all major crimes to be entirely removed from the chain of command and handled by independent prosecutors.
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