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.[2]

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.[1]

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 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 [3];
• 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.