                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                      Claude B. CARSON, Jr., Sergeant
                            U.S. Army, Appellant

                                     No. 01-0760
                             Crim. App. No. 9801402

             United States Court of Appeals for the Armed Forces

                               Argued January 23, 2002

                             Decided September 30, 2002

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, and BAKER, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in the result.


                                        Counsel

For Appellant: Major Imogene M. Jamison, (argued); Colonel Adele H. Odegard,
Lieutenant Colonel E. Allen Chandler, Jr., and Captain Sean S. Park (on
brief).


For Appellee: Major Margaret B. Baines (argued); Colonel Steven T. Salata
(on brief); Colonel David L. Hayden, Lieutenant Colonel Edith M. Rob, Major
Anthony P. Nicastro, and Captain Arthur L. Rabin.



Military Judge:   Donna M. Wright


         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Carson, No. 01-0760/AR



   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of a military judge sitting

alone convicted appellant, contrary to his pleas, of five

specifications of maltreatment and three specifications of

indecent exposure, in violation of Articles 93 and 134, Uniform

Code of Military Justice (UCMJ), 10 USC §§ 893 and 934.     He was

sentenced to a bad-conduct discharge, confinement for forty-two

months, and reduction to E-1.   The convening authority approved

the sentence as adjudged.   In his post-trial action, the

convening authority "waive[d] automatic forfeitures in

accordance with Article 58b(b), UCMJ, [10 USC § 858(b),] and

direct[ed] payment of these forfeitures to the accused's wife .

. . for six months, the maximum period allowed by law."     The

Court of Criminal Appeals affirmed the findings and sentence.

55 MJ 656 (2001).

   On appellant’s petition, we granted review of the following

issue:

          WHETHER THE ARMY COURT OF CRIMINAL APPEALS
          ERRED WHEN IT HELD SPECIFICATION 7 OF CHARGE
          III (MALTREATMENT) WAS LEGALLY SUFFICIENT
          WHEN THERE WAS NO EVIDENCE TO SHOW THAT
          APPELLANT'S ACTIONS CAUSED THE ALLEGED
          VICTIM ANY PHYSICAL OR MENTAL PAIN OR
          SUFFERING.

For the reasons discussed below, we affirm.




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United States v. Carson, No. 01-0760/AR


                            I. FACTS

                            A. Trial

     Appellant pleaded not guilty to a variety of charges and

specifications alleging fraternization with junior enlisted

personnel, dereliction of duty, maltreatment of subordinates,

sodomy, indecent acts, and indecent exposure -- all taking place

over an 18-month period from late-1996 to mid-1998.    He was

acquitted of many of these specifications and was convicted of

several others, including an allegation that he had maltreated

Private (PVT) G, a person subject to his orders, by exposing his

penis to her.

     During the period at issue, appellant was the supervising

desk sergeant in a military police (MP) station, and his victims

were young enlisted female MPs.   PVT G, who was 20 years old,

had been in the Army for less than one year, and was serving in

her first permanent duty assignment as an MP.    Appellant was her

duty supervisor during her shift.     In her direct testimony, PVT

G described an incident that occurred in the MP station on June

3, 1998, at 1:00 a.m., in which appellant twice exposed his

penis to her while purporting to change clothes in the bathroom.

In each instance, appellant -- clothed only in black socks and a

brown T-shirt that went "[m]aybe a little past his waist" --

expressly drew PVT G's attention to himself while his penis was




                                  3
United States v. Carson, No. 01-0760/AR


exposed.      Appellant made no effort to cover himself on either

occasion.

        PVT G acknowledged on cross-examination that appellant did

not touch her or make any sexual comments to her, and that she

did not report appellant's conduct to anyone until 4:00 or 5:00

p.m., even though her shift ended at 6:00 a.m.              In the interim,

however, she told another young female MP what had transpired.

She testified that she was "shocked" and "bother[ed]" by the

exposure, and felt like "a victim."

        At the conclusion of the prosecution’s case, the defense

moved for a finding of not guilty on the maltreatment and

attempted fraternization charges.           With respect to the

maltreatment charges, defense counsel argued that even if the

testimony of the prosecution witnesses was believable, “it

certainly does not rise to the level of maltreatment, as defined

and required by the elements within Article 93, UCMJ . . . .”

After noting that “several of the witnesses . . . [testified

that they were] not disturbed or distressed, and sometimes not

even offended, by the behavior[,]” defense counsel argued that

              the alleged victims have not experienced the
              anguish that the cases refer to. Hanson[1]
              talks about mental suffering, mental
              cruelty, physical cruelty or suffering, and
              looking at the maltreatment standard would
              be some level of pain, some suffering that’s
              caused, that simply hasn’t been satisfied by

1
    United States v. Hanson, 30 MJ 1198 (AFCMR 1990).   See Section II.B., infra.


                                        4
United States v. Carson, No. 01-0760/AR


            any testimony or any evidence that we’ve
            heard presented by the [G]overnment today .
            . . .

      In response, the trial counsel argued that under the

definition of maltreatment in the Manual for Courts-Martial, the

prosecution is not required to prove that the victims were

harmed emotionally or physically.         See Paragraph 17c(2), Part

IV, Manual for Courts-Martial, United States (2000 ed.).2             The

prosecution further argued that the Manual provides for “an

objective standard[,] and the subjective belief of the . . .

victim witness . . . has borderline relevance, at most . . . .”.

The military judge asked whether the prosecution was required to

prove that there was “some perception of unwanted treatment by

the actual victim in order for it to constitute maltreatment[.]”

Trial counsel responded that although there was sufficient

evidence to meet a subjective standard, the UCMJ and the Manual

did not require proof of the subjective perception of the

victim.   See id. (the “maltreatment, although not necessarily

physical, must be measured by an objective standard”).

      After dismissing one of the maltreatment specifications,

the military judge, without further comment, denied the motion

with respect to the remaining six maltreatment specifications

and the fraternization charge.



2
  All Manual provisions cited are identical to those in effect at the time of
appellant's court-martial.


                                      5
United States v. Carson, No. 01-0760/AR


     During closing arguments, the assistant defense counsel

asserted that PVT G's view of appellant's exposed penis was

unintended -- an "accident" under the circumstances.   The

assistant defense counsel also contended that none of the

alleged maltreatment victims, including PVT G, had been

maltreated.   He argued:

          They are not victims in the true sense of
          that word; they are not traumatized by this.
          There was no physical malady which has been
          put upon them; there is no mental anguish
          which they have really suffered from as a
          result of this. It does not rise to the
          level of maltreatment, as that is meant
          under the Uniform Code of Military Justice.
          . . . Being a little uncomfortable and
          being bothered a little bit, Your Honor, is
          not being maltreated by your senior non-
          commissioned officer. There needs to be
          more. Maltreatment is in the Uniform Code
          of Military Justice to make sure people like
          drill sergeants don't physically abuse their
          soldiers; not to make sure that soldiers who
          are made a little uncomfortable by NCOs can
          have recourse in a court of law against
          them.

The military judge was not persuaded, and found appellant guilty

of five of the remaining six maltreatment specifications, with

minor modifications.



                   B.   Court of Criminal Appeals

     In the Court of Criminal Appeals, appellant pursued his

contention that under Article 93, UCMJ, the prosecution was

required to prove that appellant’s actions produced actual


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United States v. Carson, No. 01-0760/AR


physical or mental pain or suffering by the victim, PVT G.    55

MJ at 657.   The court disagreed:

                A prior decision of this court
           affirming a maltreatment conviction
           involving nonconsensual sexual harassment
           noted that “physical or mental pain or
           suffering” is required. See United States
           v. Rutko, 36 MJ 798, 801-02 (ACMR 1993).
           After reevaluating this issue, we now
           conclude that because the UCMJ and the
           Manual for Courts-Martial do not require
           physical or mental pain or suffering, a
           nonconsensual sexual act or gesture may
           constitute sexual harassment and
           maltreatment without this negative impact.

Id. at 659 (footnote omitted).   The court added:

           [W]e need not decide . . . whether
           appellant’s nonconsensual, offensive, and
           indecent exposure of his penis to PVT G
           caused her “physical or mental pain or
           suffering,” because it was otherwise
           abusive, unwarranted, unjustified, and
           unnecessary for any lawful purpose, and
           therefore constitutes the crime of
           maltreatment.


Id.

      The issue in the present appeal requires us to decide

whether the Court of Criminal Appeals was correct when it

concluded that in a maltreatment case the prosecution need not

prove that a subordinate suffered actual physical or mental

harm.




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United States v. Carson, No. 01-0760/AR


             II. PROOF OF MALTREATMENT UNDER ARTICLE 93

 A. The Statute, the Manual, and the Military Judges’ Benchbook

     Article 93, UCMJ, proscribes "cruelty toward, or oppression

or maltreatment of, any person subject to [the accused's] orders

. . ."   The explanation of maltreatment in the Manual, states:

"The cruelty, oppression, or maltreatment, although not

necessarily physical, must be measured by an objective

standard."   Paragraph 17c(2), Part IV, Manual, supra.    The

current provision is based upon the guidance in prior editions

of the Manual, which provided that the cruelty, oppression, or

maltreatment “must be real, although not necessarily physical.”

Drafters' Analysis of Punitive Articles, Manual, supra, at A23-

6; see also Paragraph 172, Manual for Courts-Martial, United

States, 1969 (Rev. ed.); Paragraph 172, Manual for Courts-

Martial, United States, 1951.

     The current Manual also states that "sexual harassment may

constitute this offense,” defining "sexual harassment" as

including "influencing, offering to influence, or threatening

the career, pay, or job of another person in exchange for sexual

favors, and deliberate or repeated offensive comments or

gestures of a sexual nature."   Paragraph 17c(2), Part IV,

Manual, supra.   The Drafters' Analysis of Punitive Articles

notes that "[t]he example of sexual harassment was added [in

1984] because some forms of such conduct are nonphysical


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United States v. Carson, No. 01-0760/AR


maltreatment."     Manual, supra at A23-6.       The Military Judges’

Benchbook contains a nonbinding model instruction describing

maltreatment as “unwarranted, harmful, abusive, rough, or other

unjustifiable treatment which, under all the circumstances . . .

results in mental or physical pain or suffering."            Military

Judges' Benchbook, Dept. of the Army Pamphlet 27-9 (Apr. 1,

2001)("Benchbook").3


                        B. Judicial Consideration

      The question of whether actual victim harm is required

under Article 93, UCMJ, has been discussed in a number of

judicial opinions.      In United States v. Finch, 22 CMR 698, 700

(NBR 1956), the appellant, who was in charge of prisoner detail,

ordered the prisoners to kick and strike each other with their

fists.   The court upheld the conviction, observing that even if

some of the witnesses regarded the treatment as “horseplay” and

no one was physically harmed, the conduct amounted to

maltreatment because it was improper for the accused to subject

persons under his control to such “ill befitting treatment.”

Id. at 701.

      United States v. Hanson, 30 MJ 1198, 1200 (AFCMR 1990),

concerned a maltreatment conviction of an officer who made

repeated sexual remarks and gestures to his subordinates in the

3
  This Benchbook instruction is identical to the one in the Benchbook in
effect at the time of appellant's court-martial.


                                      9
United States v. Carson, No. 01-0760/AR


duty environment over an extended period of time.      At trial, the

accused said that he was simply joking, and that his words and

actions were designed to establish informal and effective office

relationships.   See id. at 1200-01.    On appeal, he stressed that

the testimony of his subordinates demonstrated that they did not

take his words and actions literally as an invitation to engage

in sexual activity.   Id.   The court rejected his argument,

describing maltreatment as a general intent offense that may be

proved by an objective view of the language or gestures without

regard to the subjective intent of the accused.      Id.   In the

course of providing a general description of the offense, the

court noted the Benchbook’s instruction that the “offense occurs

when the treatment, viewed objectively, results in physical or

mental pain or suffering . . . .”     Id. at 1201.   The court

emphasized the need to consider the “totality” of the

circumstances, noting:

           Appropriate conduct can only be discerned by
           examination of the relevant surrounding
           circumstances. For example, what is
           condoned in a professional athletes’ locker
           room may well be highly offensive in a house
           of worship. A certain amount of banter and
           even profanity in a military office is
           normally acceptable and, even when done in
           “poor taste,” will only rarely rise to the
           level of criminal misconduct.

Id.   The court concluded that it was “clear from the totality of

. . . [Captain Hanson’s] actions that his conduct was so abusive



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United States v. Carson, No. 01-0760/AR


and unwarranted as to support his conviction for maltreatment.”

Id.

      In United States v. Rutko, 36 MJ 798, 798 (ACMR 1993), a

noncommissioned officer was convicted of a number of offenses,

including consensual and nonconsensual sexual acts, and

maltreatment of military subordinates.    On appeal, one of the

issues concerned the legal and factual sufficiency of the

evidence with respect to the maltreatment specifications.    Id.

at 801.   In the course of providing an overview of the offense,

the Army court noted that the elements of the offense, under

Para. 17b, Part IV, Manual for Courts-Martial, United States,

1984, as well as the explanation in Para. 17c(2), indicate that

the maltreatment need not be physical, and that it includes

sexual harassment.   Id. at 801.    Citing Hanson, supra, the court

further stated that maltreatment “is a general intent crime,”

and noted that “the offense occurs when the treatment, viewed

objectively, results in physical or mental pain or suffering and

is abusive or otherwise unwarranted, unjustified and unnecessary

for any lawful purpose.”   Id.   Without discussing whether there

was any physical or mental pain or suffering in the case, the

court concluded that the appellant's actions constituted

maltreatment:

           [He] used his position and prestige as the
           first sergeant to target soldiers in his
           unit to lure to his room to take advantage


                                   11
United States v. Carson, No. 01-0760/AR


           of them for unwarranted and   unlawful sexual
           acts. We find that using a    superior
           military position to induce   soldiers to
           commit unwanted sexual acts   is maltreatment.

Id.

      In United States v. Harris, 41 MJ 890, 891 (A. Ct. Crim.

App. 1995), the Army court considered the conviction of a

noncommissioned officer for rape and maltreatment of a

subordinate.   The court reversed the appellant’s conviction on

the ground that exclusion of evidence relevant to consent

constituted prejudicial error.   Id. at 894.    In the context of

describing the offense of maltreatment, the court noted the

reference in Rutko to physical or mental pain or suffering.     Id.

The court focused its decision, however, on the issue of consent

and did not rely on the presence or absence of evidence

regarding pain or suffering.   Id.

      In a subsequent case, the Navy-Marine Corps Court of

Criminal Appeals held that proof of actual pain or suffering is

not required in a maltreatment prosecution.     United States v.

Goddard, 47 MJ 581, 584 (N-M. Ct. Crim. App. 1997) [hereinafter

Goddard I], vacated on other grounds upon reconsideration, 54 MJ

763 (NMCCA 2000) [hereinafter Goddard II].     Goddard I sustained

the conviction of a noncommissioned officer who engaged in

“adulterous, indecent sexual activity with a subordinate, on

duty, at least partially in uniform, on the floor of his unit’s



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United States v. Carson, No. 01-0760/AR


administrative office . . . .”    Id. at 586.   After stating that

“in the naval service, specific findings of actual physical or

mental pain or suffering on the part of any particular victim

have never been required.”   Id. at 584 (citations omitted).     The

court added:   "We recognize that the Military Judge's Benchbook

can be read to require that the ill treatment subjectively

result in 'physical or mental pain or suffering,' presumably on

the part of the victim. . . .    We find no legal or historical

basis for this requirement. . . ."    Id. at 584 n.4.   The court

held that “[the] appellant objectively maltreated Private S,

subjecting her to physical and mental oppression by encouraging

her to engage in unlawful acts, which were . . . unnecessary for

any lawful purpose.”   Id. at 584.

     Following a rehearing on sentence and further review, the

Navy-Marine Corps court reconsidered and vacated its prior

decision, and affirmed only a lesser included conviction for a

simple disorder under Article 134, 10 USC § 834.    See United

States v. Goddard, 54 MJ 763, 767 (2000)(Goddard II).     In

Goddard II, the court did not discuss physical or mental pain or

suffering, or otherwise revisit the legal framework employed in

Goddard I.   The court concluded, however, that the evidence was

legally and factually insufficient to prove maltreatment,

holding that a consensual sexual relationship between a superior

and a subordinate, in the absence of other factors, did not meet


                                 13
United States v. Carson, No. 01-0760/AR


the objective standard for a maltreatment conviction.      Id. at

767.

       Our Court has not addressed the issue of whether actual

mental or physical pain and suffering on the part of the victim

is a necessary component of the prosecution’s case under Article

93, UCMJ.    See United States v. Knight, 52 MJ 47 (1999).       In

United States v. Fuller, 54 MJ 107, 110 (2000), a case involving

consensual sexual relations between a noncommissioned officer

and a subordinate, we noted with approval the Manual’s use of an

objective standard and the application of Article 93, UCMJ, to

sexual harassment.    Id.   We discussed the factual context in

detail and concluded that “[a]lthough [the] appellant’s actions

clearly would support a conviction for violating the Army’s

prohibition against improper relationships between superiors and

subordinates, that alone does not support a conviction for the

offense of maltreatment.     Id. at 111 (footnote omitted).

       Although we disapproved the maltreatment conviction, we

affirmed a conviction for the lesser included offense of a

simple disorder under Article 134, UCMJ.     Id. at 112.   The

discussion of maltreatment focused on the objective test, as

well as the need to assess the totality of the circumstances,

and did not address the issue of whether Article 93, UCMJ,

requires a showing of actual mental or physical pain or

suffering.


                                  14
United States v. Carson, No. 01-0760/AR




                          III. DISCUSSION

     Although the words used by Congress to describe the

proscribed conduct -- "cruelty," "oppression," and

"maltreatment" -- depict situations that frequently involve

physical or mental suffering on the part of the victim, the

legislative history does not indicate that Congress sought to

exclude cases meeting an objective standard.

     We do not interpret the statute as precluding a conviction

when, as an objective matter, the accused has engaged in

behavior that amounts to cruelty, oppression, or maltreatment,

even though the proof of harm or injury to the victim might fall

short of demonstrating actual physical and mental pain or

suffering.   The essence of the offense is abuse of authority.

Whether conduct constitutes “maltreatment” within the meaning of

Article 93, UCMJ, in a particular case requires consideration of

the specific facts and circumstances of that case.   The

decisions in Finch, Hanson, Rutko, and Goddard I, which employed

an objective evaluation of the record, reflect this approach.

We conclude that an objective evaluation of the totality of the

circumstances represents the appropriate mode of analysis under

Article 93, UCMJ.

     In the present case, the Army court appropriately reviewed

appellant’s conviction for legal and factual sufficiency under


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United States v. Carson, No. 01-0760/AR


an objective standard.   Although not necessary to our decision,

we note that in other instances in which Congress intended

actual harm to be an element of an offense under the UCMJ, the

statute clearly expressed such a requirement.   See, e.g.,

Article 128(b)(2), UCMJ, 10 USC § 928(b)(2) (aggravated assault

where grievous bodily harm is inflicted).   Cf. Article 90(1),

UCMJ, 10 USC § 890(1) (assaulting a superior commissioned

officer by "strik[ing]" that officer); Article 91(1), UCMJ, 10

USC § 891(1) (insubordinate conduct toward warrant,

noncommissioned, or petty officer by "strik[ing] or

assault[ing]" the victim); Articles 118 and 119, UCMJ, 10 USC §§

918 and 919 (murder and manslaughter, respectively, by

"kill[ing]" the victim); Article 122, UCMJ, 10 USC § 922

(robbery "by means of force or violence or fear of immediate or

future injury"); Article 128, UCMJ (assault by "attempt[ing] or

offer[ing] with unlawful force or violence to do bodily harm to

another person").

     We conclude that in a prosecution for maltreatment under

Article 93, UCMJ, it is not necessary to prove physical or

mental harm or suffering on the part of the victim, although

proof of such harm or suffering may be an important aspect of

proving that the conduct meets the objective standard.    It is

only necessary to show, as measured from an objective viewpoint

in light of the totality of the circumstances, that the


                                16
United States v. Carson, No. 01-0760/AR


accused's actions reasonably could have caused physical or

mental harm or suffering.



                            III.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                   17
United States v. Carson, No. 01-0760/AR


    SULLIVAN, Senior Judge (concurring in the result):

    Appellant was found guilty of maltreatment under Article 93,

Uniform Code of Military Justice (UCMJ), 10 USC § 893, for

“exposing his penis” to a female military subordinate, Private

(PVT) G.   The assigned issue in this case asks whether the Army

Court of Criminal Appeals erred when it affirmed appellant’s

conviction for such maltreatment, “when there was no evidence to

show that appellant’s actions caused the alleged victim any

physical or mental pain or suffering.”         I would affirm

appellant’s conviction for maltreatment because there was

uncontested evidence in this case from which the military judge

could, and did, find beyond a reasonable doubt that appellant’s

misconduct actually caused his military subordinate mental

suffering.    See generally United States v. Turner, 25 MJ 324 (CMA

1987).

    Article 93, UCMJ, states that “[a]ny person subject to this

chapter who is guilty of cruelty toward, or oppression or

maltreatment of, any person subject to his orders shall be

punished as a court-martial may direct.”          (Emphasis added.)

Paragraph 17c(2), Part IV, Manual for Courts-Martial, United

States (1998 ed.), further provides that “[t]he cruelty,

oppression, or maltreatment, although not necessarily physical,

must be measured by an objective standard.”1          The

1
  Arguably, this Manual explanation is somewhat ambiguous. First, it can be
read to require proof of a certain level of physical or mental pain or
suffering, namely that which a reasonable man or woman would experience from
such conduct. On the other hand, it can be read as requiring no proof of


                                      1
United States v. Carson, No. 01-0760/AR

Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9

(Sept. 30, 1996)(“Benchbook”), explained Article 93, UCMJ, as

follows:

           ELEMENTS:

           (1)   That (state the name (and rank) of the
                 alleged victim) was subject to the orders of
                 (state the name of the accused), the
                 accused; and
           (2)   That (state the time and place alleged), the
                 accused (was cruel toward) (oppressed)
                 (maltreated) (state the name of the alleged
                 victim) by (state the manner alleged).

           DEFINITIONS AND OTHER INSTRUCTIONS:

           You are advised that the (cruelty) (oppression)
           (or) (maltreatment) must be real, although it does
           not have to be physical.
                       *           *           *
           The word(s) (“cruel”) (“oppressed”) (and)
           (“maltreated”) refer(s) to unwarranted, harmful,
           abusive, rough, or other unjustifiable treatment
           which, under all the circumstances:

           (a)    results in physical or mental pain or
                  suffering, and
           (b)    is unwarranted, unjustified and unnecessary
                  for any lawful purpose.


Id. at 3-17-1 (emphasis added).

    The Court of Criminal Appeals in August of 2001 provided a

considerably narrower definition of maltreatment under Article

93, UCMJ, than the Benchbook and applied that definition

in affirming appellant’s case, stating that

              [a] prior decision of this court affirming a
         maltreatment conviction involving nonconsensual
         sexual harassment noted that “physical or mental
         pain or suffering” is required. See United States

actual pain or suffering, but that a reasonable person would have experienced
pain or suffering from the charged conduct.



                                      2
United States v. Carson, No. 01-0760/AR

       v. Rutko, 36 MJ 798, 801-02 (ACMR 1993). After
       reevaluating this issue, we now conclude that
       because the UCMJ and the Manual for Courts-Martial
       do not require physical or mental pain or
       suffering, a nonconsensual sexual act or gesture
       may constitute sexual harassment and maltreatment
       without this negative victim impact.[*]

             Accordingly, we need not decide in this
        case whether appellant’s nonconsensual,
        offensive, and indecent exposure of his penis
        to PVT G caused her “physical or mental pain or
        suffering,” because it was otherwise abusive,
        unwarranted, unjustified, and unnecessary for
        any lawful purpose, and therefore constitutes
        the crime of maltreatment. Considering the
        record as a whole, we are convinced beyond a
        reasonable doubt that the evidence was legally
        and factually sufficient to prove that
        appellant was properly found guilty of
        maltreatment for his sexual harassment of PVT G
        by his “deliberate . . . offensive . . .
        gesture [] of a sexual nature,” to wit: his
        exposure of his penis to her.
____________
        * In accordance with this opinion, we
        recommend modification of paragraph 3-17-1d of
        the Military Judges’ Benchbook, to state that
        in nonconsensual, sexual harassment
        maltreatment cases: “Maltreatment refers to
        treatment which, under all the circumstances:
        (a) results in harmful, physical or mental pain
        or suffering, or (b) is otherwise, abusive,
        unwarranted, unjustified and unnecessary for
        any lawful purpose.”

56 MJ 656, 659 (2001)(footnote omitted and emphasis added).

    As indicated above, the Army Court of Criminal Appeals

employed a less demanding standard for determining maltreatment

because it did not require a showing that physical or mental harm

or suffering of any type occurred.    It additionally defined

maltreatment as only requiring a showing of treatment which “is

otherwise abusive, unwanted, unjustified and unnecessary for any

lawful purpose.”   Id.   It also chose to apply this lesser


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United States v. Carson, No. 01-0760/AR

standard in appellant’s case even though the more demanding

standard was used by the trier of fact2 in accordance with well-

established Army legal authority.         See Military Judges’ Guide,

Dept. of the Army Pamphlet 27-9 (May 19, 1969).            In my view, this

precipitous action by the Army court was unexpected3 and,

accordingly, erroneous.       See Bouie v. City of Columbia, 378 U.S.

347, 352-53 (1964); Gall v. Parker, 231 F.3rd 265, 304-305 (6th

Cir. 2000).    Nevertheless, the Court of Criminal Appeals’ error

was harmless.     Article 59(a), UCMJ, 10 USC § 859(a).


    Despite trial counsel’s argument, the more demanding standard

which required actual pain and suffering was utilized at

appellant’s trial.      Moreover, there clearly was sufficient

evidence of physical harm or mental pain and suffering presented

in this case to meet the demands of Jackson v. Virginia, 443 U.S.

307, 318-19 (1979).      Finally, I see no reasonable likelihood that

the appellate court below will reach a different conclusion on

factual sufficiency using the correct standard.            See generally

United States v. Weatherspoon, 49 MJ 209, 212 (1998).

    In particular, there was uncontested evidence presented in

this case upon which the members could convict appellant of

maltreatment under the actual pain and suffering standard in

2
  The military judge granted a defense motion for a finding of not guilty with
respect to a maltreatment offense alleged in Charge III, Specification 3.
The defense argued that no evidence had been introduced showing “some level of
pain, some suffering that’s caused . . .” and that such proof was required.
3
  The Army court rejected its own service’s military judges’ guide in favor of
a vacated Navy-Marine Corps Court of Criminal Appeals decision in United




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United States v. Carson, No. 01-0760/AR

effect in the Army at the time of appellant’s trial.            The female

subordinate, PVT G, testified that she was “shock[ed]” and

“bothered” by seeing appellant’s penis.          Her friend who was with

her that night further testified that PVT G had an upset look on

her face (“[a] frown”).      Evidence of PVT G’s physical reactions

of the victim to the exposure is strong circumstantial evidence

of mental suffering.      Cf. United States v. Fuller, 54 MJ 107, 113

(2000)(conviction for maltreatment reversed where no evidence

presented that sexual conduct was offensive to alleged

victim)(Sullivan, J., concurring).

    Finally, I agree with the establishment of a purely objective

standard to determine the existence of maltreatment under Article

93, UCMJ, in future cases.4       Cf. United States v. Knight, 52 MJ

47, 49 (1999).     Article 93, UCMJ, does not expressly require a

showing of actual physical or mental harm for conviction.

Moreover, a purely objective approach, i.e., one not depending on

actual harm or suffering of the victim, is consistent with the

Navy’s pre-codal concern for abusive or unauthorized conduct by

those who give orders to military subordinates.           See United

States v. Goddard, 47 MJ 581 (N-M Ct. Crim. App. 1997); United

States v. Finch, 22 CMR 698, 701 (NBR 1956).           Finally, a




States v. Goddard, 47 MJ 581, 584 (N-M Ct. Crim. App. 1997)(vacated on other
grounds upon reconsideration, 54 MJ 763 (N-M Ct. Crim. App. 2000).
4
  The majority states “It is only necessary to show, as measured from an
objective viewpoint in light of the totality of the circumstances that the
accused’s actions reasonably could have caused physical or mental harm or
suffering. __ MJ at (17).




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United States v. Carson, No. 01-0760/AR

reasonable person approach5 to the question of harm or suffering

is consistent with the President’s view that this statute afford

protection to service members for real, not feigned, complaints

of mistreatment.     See James Snedeker, Military Justice under the

Uniform Code 828 (1953); Paragraph 172, Manual for Courts-

Martial, United States, 1951; see generally 2B Norman J. Singer,

Sutherland Statutory Construction § 49.08 (6th ed. 2000)(a

statute may be interpreted in accordance with its application by

authorities immediately after its enactment).

5
  The language of Article 93, Uniform Code of Military Justice, 10 USC § 893,
(cruelty, oppression, maltreatment) must be construed within the context of
the good order and discipline required to complete the military mission.
Common sense dictates that these terms not be defined in terms of the
particular sensitivities of the victim. See generally Parker v. Levy, 417
U.S. 733 (1974).




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