CORE CRIMINAL LAW SUBJECTS: Crimes: Article 93 - Cruelty and Maltreatment

2015 (September Term)

United States v. Caldwell, 75 M.J. 276 (based on two factors, the military judge’s instructions were not plainly erroneous as a matter of law in light of the Supreme Court’s recent holding in Elonis v. US, 135 SCt 2001 (2015), where first, because of the unique nature of the offense of maltreatment in the military, a determination that the government is only required to prove general intent in order to obtain a conviction under Article 93, UCMJ, satisfies the key principles enunciated by the Supreme Court in Elonis, and where second, the military judge’s instructions sufficiently flagged for the panel the need to consider this general intent mens rea requirement when determining the guilt or innocence of the accused).

(Article 93, UCMJ, proscribes cruelty toward, or oppression or maltreatment of, any person subject to an accused’s orders; and the elements of this general intent offense are: (1) that a certain person was subject to the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person; such cruelty, oppression, or maltreatment must be measured by an objective standard; moreover, such conduct need not result in actual harm to the victim — either mental or physical — because the essence of the offense is abuse of authority). 

(key to a court’s inquiry as to the offense of maltreatment are the specific facts and circumstances of a given case; stated differently, the fact finder must conduct an objective evaluation of the totality of the circumstances).

(in order to obtain a conviction under Article 93, UCMJ, the government must prove that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she was making statements or engaging in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering). 

(there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ (maltreatment, can be said to have engaged in innocent conduct; this conclusion on the unique and long-recognized importance of the superior-subordinate relationship in the US armed forces, and the deeply corrosive effect that maltreatment can have on the military’s paramount mission to defend the nation). 

(a corollary to the principle that subordinates must obey their superiors is the principle that superiors must not maltreat their subordinates; the essence of this latter principle is captured by the provisions of Article 93, UCMJ, which has sought to preserve the integrity of the superior-subordinate relationship).

(criminal liability for maltreatment does not depend on whether conduct actually effects a harm upon the victim; the essence of the offense of maltreatment is abuse of authority). 

(with respect to the offense of maltreatment of a subordinate, a military superior can be held criminally responsible for voluntary conduct that is later determined to be abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose, even if the government does not prove that the superior possessed the specific intent to maltreat).

(the key question regarding intent with respect to the offense of maltreatment of a subordinate is whether the superior possessed general intent to offer the statements, or undertake the conduct, that either caused or could have caused suffering; this, of course, would not prevent a defense based on a genuinely held, reasonable mistake of fact). 

(with respect to the offense of maltreatment of a subordinate, abusive conduct that is consciously directed at a subordinate is in no sense lawful; this behavior undermines the integrity of the military’s command structure). 

(in the context of freedom of speech in the military, servicemembers do not possess the same broad rights of expression that civilians enjoy; this principle holds true even in regard to interactions between superiors and subordinates).

(with respect to the offense of maltreatment of a subordinate, the armed forces have the authority to ensure that servicemembers conduct themselves with the level of respect, obedience, and decorum that is required in furtherance of the effective execution of the military mission; thus, a superior who voluntarily engages in objectively abusive conduct towards a subordinate cannot be heard to complain that his actions were protected by his freedom of speech, or that his actions were lawful in any other sense). 

(in the context of the offense of maltreatment of a subordinate under Article 93, UCMJ, general intent sufficiently separates lawful and unlawful behavior in this context, and there is no basis to intuit a mens rea beyond that which had been traditionally required for Article 93, UCMJ). 

(in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instructions were erroneous). 

(case-specific circumstances that bear on an accused’s general intent have always been relevant to a properly conducted maltreatment inquiry).

(general intent requires knowledge with respect to the actus reus of the crime). 

(in the context of the offense of maltreatment of a subordinate, the actus reus, i.e., the guilty act, is the underlying, inappropriate conduct).

(a well-constructed maltreatment instruction should not merely refer to general intent implicitly, i.e., through the invocation of the phrase “under all the circumstances;” rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the government must have proven that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering).

(the third prong of the test for the offense of maltreatment of a subordinate, that is, that when viewed objectively under all the circumstances, the statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering, does not mean that the accused must have known that a reasonable person would conclude that his or her conduct was abusive; instead, this prong requires consciousness of the underlying action, i.e., the words being offered or the action being undertaken).  

2009 (September Term)

United States v. Graner, 69 M.J. 104 (abuse of detainees in the custody or control of the United States may form the basis of a maltreatment conviction).

United States v. Harmon, 68 M.J. 325 (maltreatment requires: (1) that a certain person was subject to the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person; there is no need to show actual harm; rather, it is only necessary to show, as measured from an objective viewpoint in light of the totality of the circumstances, that the accused’s action reasonably could have caused physical or mental harm or suffering).    


(appellant’s conduct was legally sufficient to support her conviction of four specifications of maltreatment for photographing, placing electrodes on, and writing “rapeist” on detainees while serving as a guard in an Iraqi prison, where the objective standard of harm was met for all four specifications; no reasonable detainee would want to be abused and, more importantly here, would wish his abusers to record this pointless, humiliating conduct; at least one detainee was aware he was being photographed at the time of the incidents, and it was reasonable for the military judge to find that one detainee would have feared electrocution when guards explicitly told him he would be electrocuted if he fell off the box, irrespective of whether the wires were actually electrified; it was similarly reasonable that the military judge concluded another detainee would suffer from having “rapeist” capriciously written on his leg while lying partially naked, hooded, and bound). 


United States v. Smith, 68 M.J. 316 (the elements of maltreatment are (1) that a certain person is subject to the orders of the accused; and (2) that the accused was cruel toward, or oppressed, or maltreated that person).

 

(Article 93, UCMJ, does not specifically address the context of detainees; however, it is intended to protect persons outside the U.S. military; the essential qualification from the victim’s perspective is whether or not the victim is subject to the orders of the accused, not whether the victim is a member of the U.S. armed forces; in this case, the detainees in an Iraqi prison where appellant was stationed as a military dog handler were subject to his orders under the SOP for working dogs; additionally, the detainees were subject to appellant’s orders in his capacity as a military policeman; finally, the relationship between a prison guard and prisoner or guard and detainee implies that the prisoners are subject to the guards’ orders). 


(Article 93, UCMJ, applies to detainees in U.S. custody or under U.S. control, whether they are members of the U.S. armed forces or not; in this case, viewing the evidence in a light most favorable to the prosecution, a reasonable juror could have found that the juvenile detainees had a duty to obey appellant as their prison guard; similarly, the prisoner status of the detainees and appellant’s role in controlling them imparted a duty for them to obey him).


2003

United States v. Springer, 58 MJ 164 (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; there is no need to show actual harm, rather 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).

2002

United States v. Carson, 57 MJ 410 (although the words used by Congress to describe the proscribed conduct -- "cruelty," "oppression," and "maltreatment" -- depict situations that frequently involve physical or mental suffering on the part of the victim, the legislative history to Article 93, UCMJ, does not indicate that Congress sought to exclude cases meeting an objective standard).

(Article 93, UCMJ, does not preclude a conviction when, as an objective matter, the accused has engaged in behavior that amounts to cruelty, oppression, or maltreatment, even though the proof of harm or injury to the victim might fall short of demonstrating actual physical and mental pain or suffering; the essence of the offense is abuse of authority; whether conduct constitutes "maltreatment" within the meaning of Article 93, UCMJ, in a particular case requires an objective evaluation of the specific facts and circumstances of that case).

(in a prosecution for maltreatment under Article 93, UCMJ, it is not necessary to prove physical or mental harm or suffering on the part of the victim, although proof of such harm or suffering may be an important aspect of proving that the conduct meets the objective standard; 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).

2001

United States v. Brown, 55 MJ 375 (conduct amounting to sexual harassment can be punished as a military offense if it constitutes maltreatment of a subordinate under Article 93, UCMJ).

2000

United States v. Fuller, 54 MJ 107 (evidence of maltreatment was found legally insufficient where the conviction was based primarily on evidence of consensual sexual relations between appellant and a PFC who was a female soldier in appellant’s unit; Article 93, UCMJ, is not a strict liability offense punishing all improper relationships between superior and subordinates)

(appellant was a superior noncommissioned officer and PFC’s platoon sergeant, a relationship which could create a unique situation of dominance and control; however, where PFC was apparently not intoxicated and was a willing participant throughout an entire evening, the record in this case provided no indication that PFC felt unable to resist appellant’s actions)

 (considered in light of the facts and circumstances of the case, a comment by appellant to another noncommissioned officer, to the effect of "you’ve gotta get some of this", was legally insufficient standing alone to constitute the offense of maltreatment by sexual harassment; although the comment may have been embarrassing to a female PFC, but the comment does not support a finding of maltreatment by sexual harassment).

 (under the circumstances of this case, appellant’s conduct did not constitute maltreatment; however, that conduct, including sexual relations with a PFC and encouraging another noncommissioned officer to have sexual intercourse with her, was prejudicial to good order and discipline or service discrediting and constituted the lesser-included offense of a simple disorder under Article 134, UCMJ).

1999

United States v. Knight, 52 MJ 47 (it was not necessary to determine whether Article 93, UCMJ, has an “officiality” requirement where appellant pleaded guilty and admitted that his conduct violated the maltreatment prohibition, admitted that he used a phony credit card known to be derived from confidential information in appellant’s official control as a result of military duties, and knew that his conduct would cause the victim command embarrassment).

(appellant’s construction of Article 93, UCMJ, as requiring the prosecution to show that appellant was acting in a supervisory role when he maltreated the victim is not supported by the plain language of the statute, but under the circumstances of appellant’s guilty plea the CAAF did not decide that legal question).

(even accepting the argument that Article 93, UCMJ, requires a supervisory relationship to support a charge of maltreatment, appellant’s plea is provident in that appellant admitted the alleged victim was subject to his orders, that appellant was the noncommissioned officer in charge, that the victim was one of appellant’s section chiefs, and that appellant exploited confidential personnel information available to appellant because of his command position over the victim).


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