The military services are increasingly charging maltreatment in violation of UCMJ art. 93, in sexual assault and sexual harassment cases. As military defense counsel, we tend to see these charges as collateral to the main sexual assault charges. Which brings me to this interesting new case from the Coast Guard.
In United States v. Sullivan, No. 1414, 2016 CCA LEXIS (C. G. Ct. Crim. App. 13 July 2016, the court had before it a challenge to a maltreatment conviction. In a unanimous opinion, the court found that the Appellant should not have been convicted of maltreatment based on the facts in the case. (What is also most interesting is that the government raised the issue during the course of the appeal.)
In addition, the Government raises the question of whether it is legally possible for Appellant to have violated Article 93 in the circumstances of this case, given that Article 93 requires cruelty toward a person subject to the accused’s orders.
As almost always it was a Pyrrhic victory because the court affirmed the sentence anyway. But, as a military defense counsel knows, it is an issue to be raised in future cases. The facts as reported are these:
Appellant and his female victim, Seaman SP, met online. They learned that each other was a member of the Coast Guard, stationed at a different unit. Appellant was a third class petty officer (E-4), Seaman SP a “nonrate” (E-3). Although he was of a higher paygrade, Appellant was not a supervisor of Seaman SP in any sense.
The court observed that:
Appellant’s conduct, as revealed in the stipulation of fact and the providence inquiry, supports a finding that he was cruel toward Seaman SP, as alleged. The question is whether there is “some duty” requiring a seaman to obey lawful orders of a petty officer stationed at a different unit, outside of any official or professional context. We have found no case providing definitive guidance on the question. In United States v. Curry, 28 M.J. 419, 424 (C.M.A. 1989), the court questioned whether a first class petty officer (E-6) could properly be convicted of oppressing a petty officer (E-4, E-5, or E-6) who “had no duty which required her to obey any orders of” the first class petty officer. The Court refrained from ruling on the question, instead remanding the case. Id.
On remand in Curry, cited above, the Navy-Marine Corps Court of Criminal Appeals found that the facts in Curry were not sufficient for a finding of guilty and dismissed the maltreatment charges. United States v. Curry, 1991 CMR LEXIS 1144 (N.M.C.M.R. 31 July 1991)(unpub,), aff'd on other grounds, 35 M.J. 359 (C.M.A. 1992).
Keep this case in mind, check your own regulations, and make sure your military defense counsel looks at the facts and law. For example, OPNAVINST 5370.2, Navy Fraternization Policy might have enough language and applicability if the accused is a E-7 and above and the "victim" is an E-6 and below. Is the language in ¶5.b. enough? And perhaps the CPO Creed would help in a prosecution? Or perhaps OPNAVINST 3120.32, The SORM, will get you.
As always, if you don't do it you don't have to test the limits of the law. it,
After completing the mission, appellant threw a CS gas canister on the roof of the OP during the exfiltration of his squad from that position. The first soldier on the roof in the path towards the stairs, kicked the canister to get away from it, but instead was greatly affected by the CS gas pouring out from the canister. In his confusion and affected physical state, the soldier panicked and blocked the stairway preventing others from leaving the area, thus prolonging the squad's exposure to the CS gas. Appellant stood at the bottom of the stairs and laughed as his squad scrambled to exfiltrate the rooftop. As a result of their exposure to the CS gas, several members of appellant's squad were temporarily unable to see or breathe. After gathering his squad and gaining accountability, appellant and his soldiers made their way back to the COP, some still feeling affected by the gas.
Thus, the CAAF instructs, "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."
Is the alleged victim "subject to the orders" of the accused?
If not subject to orders, there might be a defense. But, here's a different view.
- Appellant did not directly supervise the victim.
- Appellant and the victim were in the same unit in the same platoon.
- The victim had previously contacted him asking for his assistance in his professional capacity to help with issues.
- Appellant specifically admitted the victim was subject to his orders because he was a Staff Sergeant and she was a Private First Class.
- Appellant said he told the victim "that the situation was 'bad' because of the disparity in rank."
- Appellant said he was aware of their respective ranks prior to the offense.\
- The admitted conduct describes an NCO who used his position and superior knowledge of the military to try to isolate the victim for his own sexual interests.
Final point for you and your military defense counsel.
It is not uncommon for maltreatment to be charged in a case where there are allegations of sexual offenses. Be aware, they could be multiplicious. Before you move to dismiss or consolidate, take a moment to think which is a better charging scheme.