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NEWS | April 24, 2024

Stakes higher now for preventing sexual harassment and assault

By Lt. Col. Kristin Porter 807th Medical Command (Deployment Support)

Prevention. Training. Intervention. Response. All are part of the Army’s Sexual Harassment and Assault Awareness Program, but now the stakes in the response are higher.

“In the military, [if there is a] sexual assault, we are great at responding [to the victim]. We have advocates out there that know where to go and the process to help. [We are focused on] turning a victim into a survivor,” said Greg Rogers, the Sexual Assault Response Coordinator for 807th Medical Command (Deployment Support). “What we want to focus on especially during our Sexual Assault Awareness Month is prevention. Prevention is the next level of our job.”

Soldiers sit through annual SHARP (Sexual Harassment/Assault Response and Prevention) briefings to reinforce what is sexual harassment and assault, how to intervene as a bystander, and options for survivors in reporting harassment or assault.

“Unfortunately, people sometimes zone out during training because they don't feel they're in the demographic of those who get assaulted, but it is so important as they are going to be the co-workers and battle buddies who intervene as bystanders or help someone assaulted move forward,” said Rogers. “But if you can prevent the problem in the first place, that’s the best solution.”

Despite the training and programs, Congress felt the Army wasn’t doing enough to eradicate sexual harassment and assault from its formations and mandated the Army change its response, investigation, and prosecution process. Resembling a special prosecutor system, the Office of Special Trial Counsel (OSTC) began taking cases in December 2023, reporting directly to the Secretary of the Army and insulating them from any command-influenced outcome.

“OSTC can look at the facts, the evidence, and the law basically in a vacuum and determine whether or not the elements are met and an actual offense and crime has actually been committed, what level of proof exists, and whether or not it's going to be a successful court martial,” said Lt. Col. Mary Jo Gneshin, Staff Judge Advocate for the 807th MC(DS).

If sexually harassed or assaulted, Soldiers have the options to reach out to their Sexual Assault Response Coordinator (SARC), victim advocates (VA), their chain of command, or other Soldiers.

In the case of sexual assault, a victim has the option of confidentiality, and choice of filing a restricted or unrestricted report.

“The restriction is the victim's decision. From the point that an assault occurs, the key is to put the control back into the victim’s hands,” said Rogers. A restricted report remains between the victim and the SARC.

However, If the victim files unrestricted, it is immediately handed over to the investigative authority - CID, military police, or civilian authorities - and then it goes through the entire investigative process, which goes to OSTC for court martial or returns to the command to act on it.

“The big change is that once a complaint is made, the commander may never see the investigation or the outcome of the investigation, all the way through court martial. The commander knows there's an investigation going on, as they're required to flag the person accused of misconduct and retain positive control, but they will never see the investigation on the back end if it goes to court martial,” said Gneshin.

Reserve attorneys and paralegals get the allegations from the Soldiers themselves, commanders, the SARC, or even CID, and then automatically log it into the Military Justice Online system, which routes it to OSTC. OSTC may opt to get involved with the investigation, but if not, the Reserve attorneys complete the investigation and then upload all investigative documents for OSTC review and opine stating if they're going to take it to court martial.

“If they take it to court martial, then we're done. If they don't take it to court martial for whatever reason, it comes back to the command, and I take the packet to the commander and say, ‘Here are your options – which one do you want to take, and it's anything short of court martial.’ Then we'll go from there just like we normally would with any other action. So when I say commanders may never see it if it goes to court martial, it is because we previously gave it to the commander before we sent it to OSTC. Now commanders don't know the exact facts of the incidents that may have been committed in their command,” explained Gneshin.

Beginning January 1, 2025, sexual harassment is also on target to become a court martial offense, but the Army attorneys are still awaiting guidance on what kind of sexual harassment allegations will go to court martial and which kinds of sexual harassment cases are better suited for administrative actions.

Once a formal sexual harassment investigation is complete with a determination that sexual harassment did occur, it will be routed to OSTC. Something that doesn't necessarily rise to the level of sexual harassment under the UCMJ may still meet the standard in AR 600-20.

“AR 600-20 sexual harassment is not the same as UCMJ sexual harassment - there are much lesser qualifiers of sexual harassment. We load it into Military Justice Online, send it to OSTC, and they determine if it meets the standards of UCMJ or if it's administrative. And then, if it does meet the standard for UCMJ prosecution, are we going to prosecute? If it doesn't meet either of those standards, then they kick it back to the unit,” said Gneshin.

“We are waiting for the prosecutorial standards of conduct for Congress - as in, are we prosecuting if it's just a one time issue, and if we're not getting convictions, is it okay for us to kick those back to the unit? Congress may say, ‘No.’ Congress, for a long time, has said it doesn't matter how much evidence you have. The victim gets a voice, and you're going to take every one to court martial,” she continued.

With informal sexual harassment complaints, a Soldier may go to the commander and express concerns and request action be taken at that level to correct the issue. If the commander resolves the minor issue to the satisfaction of the complainant and retains control of the situation, the matter is considered closed. But if the commander discovers something more egregious, they have the option to initiate a formal investigation.

“If they start an investigation at all, then it’s going into the OSTC realm. If there are multiple complaints and a commander is considering adverse action, it will route to OSTC before that Article 15 can be issued,” explained Gneshin. “The stakes are a lot higher for Soldiers now. We don't have control over whether or not the commander is going to issue an Article 15 or somebody's going to court martial because the standard of proof is different now.”