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Article 93, UCMJ, Cruelty

The other day, we were successful in obtaining a “not guilty” finding in the case of a Marine corporal serving at an overseas embassy.  Our client had been charged with cruelty under Article 93, UCMJ.  A quick review of Article 93 reveals a limited class to whom it applies.

Article 93 prohibits cruelty and maltreatment of those “subject to his orders.”

 The UCMJ generally requires an individual to obey lawful orders of his/her superiors.  But who is a superior?   The highest military court has selected a narrow interpretation.

 In US v. Curry, a yeoman first-class was convicted of oppressing a female petty officer — junior to him only in rank — by suggesting she should give him a body massage, Curry’s conviction was set aside – the victim was NOT subject to his orders despite the fact that he slightly outranked her.  She was under no duty to obey his orders; and he lacked authority over her and could not order her to do anything.   See US v. Curry, CMR LEXIS 1144, 882 – 0719 R N.M.C.M.R. 31 July 1991 – unpublished.

In  US v. Dickey, 20 CMR 486 (ABR 1956), the accused was commander of an army unit in Korea; he was responsible for the general supervision of certain Korean nationals,   Dickey was convicted of Article 93 cruelty for instructing subordinates to have their guard dogs attack a victim without justification.   The Army board [predecessor to the Army Court of Criminal Appeals] limited Article 93 to persons in a command capacity, prohibiting them from maltreating those under their supervision.   Dickey was not “in command” over the Korean national; ergo, this was not a crime under Article 93. 

See also the ARMY LAWYER for July 1995.  Major William T. Barro authored, SEXUAL HARASSMENT AND THE UNIFORM CODE OF MILITARY JUSTICE, A PRIMER FOR THE MILITARY JUSTICE PRACTITIONER.   He states that, based on the precedents, the rule of lenity applies.  This is a rule of statutory construction which provides that – in cases of ambiguity and where reasonable minds can differ as to the meaning — the phrase in question should be given the interpretation favoring the accused.

Addressing Article 93 directly, the author concludes:

Application of the rule to this case would seem to limit the meaning of “subject to his orders” as contained in Article 93, UC MJ, to those individuals supervised in some direct way by the accused [emphasis added]..

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