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).
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).
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).