Maximum punishment

DD, TF, 2 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board location), on or about __________, knowingly (make sexual advances) (demand or request sexual favors) (engage in conduct of a sexual nature), to wit (by saying to (state name of person to whom comment made), “__________,” or words to that effect) (by __________); that such conduct was unwelcome; and under the circumstances (would cause a reasonable person to believe, and __________ did believe, that submission to such conduct would be made, either 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 __________ did believe, that submission to, or rejection of, such conduct would be used as a basis for career or employment decisions affecting __________) (was so severe, repetitive, or pervasive that a reasonable person would perceive, and __________ did perceive, an intimidating, hostile, or offensive working environment); and that such conduct was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces).

Elements

(1) That, (state the time and place alleged), the accused knowingly (made sexual advances) (made demands for sexual favors) (made requests for sexual favors) (engaged in conduct of a sexual nature), to wit: __________,

(2) That such conduct was unwelcome;

(3) That, under the circumstances, such conduct:

(a) would cause a reasonable person to believe, and a certain person, namely (state the person alleged), did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits, or entitlements; or

(b) would cause a reasonable person to believe, and a certain person, namely (state the person alleged), did believe, that submission to or rejection of, such conduct would be used as a basis for decisions affecting that persons’ job, pay, career, benefits, or entitlements; or

(c) was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person, namely (state the person alleged), did perceive, an intimidating, hostile, or offensive working environment; and

(4) That, under the circumstances, the conduct of the accused was (to the prejudice of good order and discipline in the armed forces) (of a nature to bring discredit upon the armed forces) (to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces)

Definitions & other instructions

(Whether “other conduct” is “of a sexual nature” is dependent upon the circumstances of the act or acts alleged and may include that, without context, would not appear to be sexual in nature.)

A “certain person” extends to any person, regardless of gender or seniority, and regardless of whether subject to the UCMJ, who by some duty or military-related reason may work or associate with the accused.

The belief or perception of the “certain person” may be satisfied by such a belief or perception being formed at any time; the belief or perception need not be formed contemporaneously with the actions that gave rise to that belief or perception.

The act constituting sexual harassment can occur at any location, regardless of whether the victim or accused is on or off duty at the time of the alleged act or acts. Physical proximity is not required, and the acts may be committed through online or other electronic means.

The accused must have actual knowledge that he or she is (making a sexual advance) (making a demand for sexual favors) (making a request for sexual favors) (engaging in conduct of a sexual nature). Actual knowledge is not required for the other elements of the offense.

(“Conduct prejudicial to good order and discipline” is conduct which causes a reasonably direct and obvious injury to good order and discipline.)

(“Service discrediting conduct” is conduct which tends to harm the reputation of the service or lower it in public esteem.)

The government has alleged that the conduct in question in (The) Specification (___) of (The) (Additional) Charge (___) was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. To convict the accused of the offense charged, you must be convinced beyond a reasonable doubt of all the elements, including that the accused’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces. If you are convinced of all the elements except the element of the service discrediting nature of the conduct, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “of a nature to bring discredit upon the armed forces.” On the other hand, if you are convinced of all the elements except the element of prejudice to good order and discipline in the armed forces, you may still convict the accused of the offense charged. In this event, you must make appropriate findings by excepting the language “to the prejudice of good order and discipline in the armed forces.” Of course, if you are convinced beyond a reasonable doubt that the conduct in question was both to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, then you may convict the accused as charged provided you are convinced beyond a reasonable doubt as to the other elements of (The) Specification (___) of (The) (Additional) Charge (___).