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

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).


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).


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).


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).


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).


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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