ARTICLE 93 – MALTREATMENT
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 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.
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.
Elements of 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.
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 a 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 the alleged victim was consensual. Consensual sexual relationships without more, is not maltreatment ;
- 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.
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.
-  MCM, Pt. IV, ¶ 17a.
-  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).
-  United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000).
-  Military Judges Benchbook, ¶ 3-17-1 – Cruelty, Oppression, or Maltreatment of Subordinates.
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For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
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Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
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A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
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Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More
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