Cruelty and Maltreatment – Article 93, UCMJ
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“Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.” Article 93.
Crimes: Article 93 – Cruelty and Maltreatment
- That a certain person was subject to the orders of the accused; and
- That the accused was cruel toward, or oppressed, or maltreated that person. MCM, pt. IV, 17b.
Nature of the Victim
The victim must be subject to the orders of the accused. This includes not only those under the direct or immediate supervision or command of the accused, but also any person (soldier or civilian) who is required by law to obey the lawful orders of the accused. United States v. Sojfer , 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (E-3 seeking care at military medical facility could be “subject to the orders of” an E-6 corpsman since there was an important difference in rank which required the victim to obey the accused’s orders), aff’d, 47 M.J. 425 (C.A.A.F. 1998); but cf. United States v. Curry , 28 M.J. 419 (C.M.A. 1989) (requiring more than seniority of rank to implicate Art. 93).
Nature of the Act
The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. MCM, pt. IV, 17c(2).
- Nature of superior’s official position could place them in a “unique situation of dominance and control” and therefore bring ostensibly voluntary sexual relationship with a trainee within the definition of oppression and maltreatment, but not all personal relationships between superiors and subordinates, or between drill sergeants and their trainees, necessarily result in physical or mental pain or suffering; and government has the burden of proving that accused’s conduct resulted in such physical or mental pain and suffering by an objective standard. United States v. Johnson , 45 M.J. 543 (Army Ct. Crim. App. 1997); but see United States v. Fuller , 54 M.J. 107 (C.A.A.F. 2000) (comment of sexual nature was not maltreatment by sexual harassment because prosecution failed to prove that it offended the alleged victim); U.S. v Goddard , 54 M.J. 763 (N-.M Ct. Crim. App. 2000).
- In a prosecution for maltreatment, it is not necessary to prove physical or mental harm or suffering on the part of the victim. It is only necessary to show, as measured from an objective viewpoint in light of the totality of the circumstances, that the accused’s actions reasonably could have caused physical or mental harm or suffering. United States v. Carson , 57 M.J. 410 (C.A.A.F. 2002) (MP desk sergeant’s indecent exposure of his penis to a subordinate female MP constituted maltreatment under Article 93).
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- A consensual sexual relationship between a superior and a subordinate, without more,is not maltreatment. United States v. Fuller , 54 M.J. 107 (C.A.A.F. 2000) (even though relationship may have constituted fraternization, evidence did not evince “dominance and control” by the superior).
- U.S. v Goddard , 54 M.J. 763 (N.M. Ct. Crim. App. 2000). A one time consensualsexual encounter with a female subordinate on the floor of the detachment’s administrative office will not support a conviction for cruelty and maltreatment.
- Cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazardous or both. However, the accused’s intrusive body searches of female trainees, objectively viewed, reasonably could have caused mental harm or suffering based on testimony that a person subject to an EPW search could feel “violated,” and testimony by a victim that she felt humiliated by the search. United States v. Springer , 58 M.J. 164 (C.A.A.F. 2003).
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