"Ei Incumbit Probation Qui Dicit."

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 93 Cruelty and Maltreatment

This punitive article deals with persons who are found guilty of ill- treating, oppressing or being cruel to a subordinate or any person who is required to follow the former's orders. Punishment for this offense is determined through the process of court martial. The elements to be proved in Article 93 cases are:

  • That the victim of the cruelty or maltreatment was a subordinate of the accused, i.e.: subject to the accused individual's orders.
  • That the accused individual exhibited cruelty, maltreated or oppressed the victim in a specific manner.

What is the Maximum Punishment Granted under Article 93?

Under Article 93, the accused faces dishonorable discharge, confinement for one year and forfeiture of all allowances and pay as maximum punishment. To learn more about this punitive article refer to the Manual for Courts Martial.

Explanation of Article

Article 93 protects individuals from being maltreated or oppressed by their immediate superiors or those who are in a position to give them orders. Under this punitive article, a serviceman shall be charged even if he is found guilty of showing cruelty to or maltreating persons who, though not in his direct chain of command, have to follow his orders.

To find the accused guilty, the prosecution does not need to show evidence of physical cruelty or maltreatment. However, it is necessary to prove that cruelty, maltreatment or oppression actually occurred. Any treatment that is deemed, under objective standards, to be unfair, abusive, unwarranted and unnecessary to fulfill a lawful purpose may attract charges under this article.

Points to Note about Article 93

  • Article 93 also covers acts that cause mental suffering or that could reasonably have caused such suffering. It is not just physical abuse that is covered under this article.
  • The maltreatment or oppression or cruelty may also be in the form of sexual harassment, assault or improper punishment.
  • In Article 93 cases, the victim's acquiescence or lack of it plays a key role in establishing whether or not maltreatment/ abuse/ cruelty took place.
  • The accused cannot be found guilty of violating this article if he imposed necessary duties or assigned such duties to a subordinate even if they involved hazardous or extremely arduous work.

Sexual Harassment as Part of Article 93 Offenses

In recent times, with the government's increasing focus on preventing sexual harassment within the armed forces, the scrutiny on servicemen has increased significantly. There is a much greater risk today that an enlisted member of the armed forces may be charged with sexual abuse. This makes it important for all servicemen to know and understand the punitive articles under which such charges can be brought against them.

Under Article 93, the serviceman can be charged with sexual harassment if he influences, offers to influence, makes threats (against the job, career, pay of another) in exchange for sexual favors. Gestures and comments with sexual nuances that are repeated also constitute sexual harassment under this article. Along with the circumstances of the alleged offense, the victim's willingness to participate may play an important role in determining the guilt of and punishment for the offender.

Example of Article Incidence

In the United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000) case, it was deemed that despite maintaining sexual relations with the subordinate, the accused was not guilty of maltreatment under Article 93 since there was no evidence of control or dominance in the consensual relationship.

In contrast, the act of conducting intrusive body searches with female trainees was deemed to have caused mental harm or suffering, as per the testimony of a victim and the accused in United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003) was deemed guilty.

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