Daniel Conway | Military Attorney
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Chapter 18: Article 93, UCMJ maltreatment

§ 18:1
Elements

§ 18:2
Generally

§ 18:3
Practice Pointers

§ 18:4
Standard Instructions

§ 18:5
Maximum Punishment and Lesser Included Offenses

§ 18:1 – Elements
  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. 
 
§ 18:2 – Generally
In our experience, Article 93 has historically been used to charge offenses involving sexual harassment.   That is not to say that Article 93 is exclusively used for sexual harassment cases.  It is possible for assaults and improper punishments to constitute the offense.  The authors have certainly been involved in cases in which service members with medical conditions were forced to engage in tasks as punishment that were clearly prohibited by limitations placed on the victim’s activity by doctors. 

The victim, however, is always a subordinate subject to the orders of the accused.  There is case law indicating that more than a seniority of rank is required to constitute a violation of Article 93.  The inquiry is whether the person was subject to the orders of the accused.[1]
​

The cruelty, oppression, or maltreatment is measured by an objective standard.  It does not have to physical cruelty, oppression, or maltreatment, which can be key in sexual harassment cases. 

§ 18:3 – Practice Pointers
Any defense in a maltreatment case must first examine the nature of the victim. Because Article 93 cases tend to involve allegations of sexual harassment in a senior subordinate relationship, there is typically ample opportunity to investigate the alleged victim’s conduct within that senior to subordinate relationship.  Defense counsel will want to consider some of the following aspects of the client’s relationship with the alleged victim:

-The extent to which the alleged victim perceived a personality conflict with the accused;
-Reasons for any perceived personality conflict with the accused. This includes disciplinary actions taken by the accused against the alleged victim;
-The alleged victim’s prior history of complaining about seniors;
-The alleged victim’s mental health history for mood disorders, anxiety disorders, and personality disorders;
-Personal stressors in the alleged victim’s life that may cause him or her to misperceive valid military duties as being cruel, oppressive, or maltreatment;
-Evidence indicating that any relationship between the senior and alleged victim was consensual.  Consensual sexual relationships without more, is not maltreatment[2];
-Evidence that the alleged actions of the senior had no impact on the alleged victim’s job performance, day-to-day activities, and mental health;
-Evidence that other subordinates were subjected to similar treatment and did not perceive the treatment as being cruel, oppressive, or maltreatment.

§ 18:4 – Standard Instructions[DK1] 

Standard Instructions (Citations taken from Department of the Army Pamphlet 27-9)
3-17-1 – Cruelty, Oppression, or Maltreatment of Subordinates
 
§ 18:5 – Maximum Punishments and Lesser Included Offenses
The maximum punishment under Article 93 is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.  The only lesser included offense is Article 80 attempts. 

[1] United States v. Curry, 28 M.J. 49 (C.M.A. 1989); United States v. Soifer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996). 

[2] United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000).

 [DK1]Did you want to include these or just reference them?

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The information on this page is informational in nature. Nothing on this or associated pages should be construed as legal advice for a particular case. Likewise, the information on this website does not constitute the creation of an attorney-client relationship. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
  • Practice Areas
    • Correcting Military Records >
      • Evaluation Report Appeals
      • Reprimand Appeals
      • Family Advocacy Program Appeals
      • Discharge Review Boards
      • Cadet Misconduct
      • Titling Actions
      • Military Protective Orders
    • Separation Boards
    • Military Medical Malpractice Claims
    • Forms, Downloads, and Regulations
  • Military Crimes and Defenses
    • Military Law >
      • Court-martial Information >
        • Know Your Rights
        • Court-Martial Rules >
          • Pretrial Confinement
          • Unlawful Command Influence
          • Article 31 Violation
          • Military Rule of Evidence 412
          • Involuntary Statements
          • Failure to State an Offense
          • Wheeler Factors
      • Court-Martial Defense >
        • Military Sexual Assault Defense
        • Military Drug Defense >
          • Drug Detection Windows
          • Marijuana
          • Cocaine
          • Morphine and Heroin
        • Disrespect Offenses
        • Conspiracy Cases
        • False Statements >
          • Obstruction of Justice
        • Use of Force
        • Assault Cases
        • Conduct Unbecoming
      • Court-Martial Appeals >
        • Petitions for a New Trial
        • Insufficient Evidence
    • Introduction
    • Article 77 Principles
    • Article 78 Accessory After the Fact
    • Article 79 Lesser Included Offenses
    • Article 80 Conspiracy
    • Article 81 Attempts
    • Article 82 Solicitation
    • Article 85 Desertion
    • Article 86 AWOL
    • Article 88 Contempt Towards Officials
    • Article 92 Failure to Obey an Order
    • Article 93 Maltreatment
    • Article 107 False Official Statement
    • Article 112a Wrongful Use of a Controlled Substance
    • Article 119 Manslaughter
    • Article 119b Child Endangerment
    • Article 121 Larceny or Wrongful Appropriation
    • Article 125 Kidnapping
    • Article 133 Conduct Unbecoming
    • Article 134 Bribery and Graft
    • Article 134 Indecent Language
    • Article 134 Obstruction of Justice
  • Firm History
    • Films
    • Books
    • Sketches
    • My Lai
    • Abu Ghraib
    • Haditha
    • MARSOC
    • The Stryker 5
    • Gary Myers
  • Results
  • Blog