§ Article 134 : Sexual Harassment

This offense is prosecuted under Article 134 of the UCMJ (10 U.S.C. § 934), the General Article. It punishes knowingly making sexual advances, demands, or requests for sexual favors, or knowingly engaging in other conduct of a sexual nature, under circumstances prejudicial to good order and discipline or discrediting to the armed forces.

Disambiguation — this is not Article 134 itself

Article 134 is a general clause under which the Manual for Courts-Martial lists numerous separately defined offenses. Sexual harassment is one of those enumerated offenses, added to the Manual in January 2022. It is catalogued in the Manual for Courts-Martial as Part IV, paragraph 107a — a different designation from the standalone Article 107a (Parole Violation), which is a separately numbered article under 10 U.S.C. § 907a.

Who It Applies To

Any person subject to the UCMJ who knowingly makes unwelcome sexual advances, demands, or requests for sexual favors, or knowingly engages in other unwelcome conduct of a sexual nature, when the conduct has one of the effects described in the elements below and is prejudicial to good order and discipline or service-discrediting.

What It Covers

1. The accused knowingly made sexual advances, demands, or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature.
2. The conduct was unwelcome.
3. Under the circumstances, the conduct:

• would cause a reasonable person to believe, and a certain person did believe, that submission to it would be made, explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits, or entitlements;
• would cause a reasonable person to believe, and a certain person did believe, that submission to or rejection of it would be used as a basis for decisions affecting that person’s job, pay, career, benefits, or entitlements; or
• was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment.

4. Under the circumstances, the accused’s conduct was prejudicial to good order and discipline in the armed forces, was of a nature to bring discredit upon the armed forces, or both.

Key rules

• Whether “other conduct” is “of a sexual nature” depends on the circumstances, and may include conduct that would not appear sexual without context.
• “A certain person” extends to any person, regardless of gender or seniority and whether or not subject to the UCMJ, who by some duty or military-related reason may work or associate with the accused.
• The conduct can occur anywhere, on or off duty. Physical proximity is not required, and the conduct may be committed online or by other electronic means.
• The accused must actually know that they are making a sexual advance, demand, or request, or engaging in conduct of a sexual nature. Actual knowledge is not required for the other elements.
• The belief or perception required of “a certain person” may be formed at any time; it need not arise at the same time as the conduct.

Maximum Punishment

Maximum authorized punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

Sentencing parameters. Category 2 (1–36 months), with a recommended maximum of 24 months, the authorized maximum.

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Sexual harassment is one of the offenses listed under the General Article. It does not require physical contact; sexual contact without consent is addressed by Article 120. Sexual harassment of a person subject to the accused’s orders may also be charged as cruelty and maltreatment under Article 93, and taking or threatening personnel actions to retaliate for a report by Article 132.

What the Provision Does

This offense covers unwelcome sexual advances, demands or requests for sexual favors, and other conduct of a sexual nature, without any requirement of physical contact. The conduct must also meet one of the effect requirements listed in the Manual, such as being so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment. The maximum confinement is 2 years.

History

Sexual harassment was added to the Manual for Courts-Martial as an enumerated Article 134 offense (paragraph 107a) by Executive Order 14062, effective January 26, 2022. The Manual’s analysis cross-references section 539D of the National Defense Authorization Act for Fiscal Year 2022 (Pub. L. 117-81).

Sources

• 10 U.S.C. § 934 (Article 134, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 107a
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C
• Manual for Courts-Martial, United States (2024 ed.), Appendix 17 (Analysis of Punitive Articles)
• Executive Order 14062, 2022 Amendments to the Manual for Courts-Martial, United States, 87 Fed. Reg. 4763 (Jan. 31, 2022)