Opinion Analysis: Maltreatment survives as a general intent crime in United States v. Caldwell, No. 16-0091/AR
CAAF decided the Army case of United States v. Caldwell, 75 M.J. 276, No. 16-0091/AR (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. Finding that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the military offense of maltreatment, CAAF concludes that the military judge’s instructions were not erroneous in this case but also provides specific guidance for instructions in future cases. The court affirms the appellant’s convictions and the decision of the Army CCA.
Judge Ohlson writes for a unanimous court.
CAAF granted review of one issue in this case (and that issue was personally asserted by the appellant (discussed here)):
Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.
A general court-martial composed of members with enlisted representation convicted Sergeant First Class Caldwell, contrary to his pleas of not guilty, of maltreatment in violation of Article 93 and abusive sexual contact in violation of Article 120. The convictions were related to Caldwell’s unwanted sexual advances towards, and inappropriate workplace touchings of, a subordinate. Caldwell was sentenced to reduction to E-1 and a bad-conduct discharge.
Article 93 prohibits cruelty toward, or oppression or maltreatment of a subordinate. To win a conviction for maltreatment, however, the Government need not prove that the accused actually intended cruelty, oppression, or maltreatment, or even that there was actual harm to the alleged victim. Rather, “the essence of the offense is abuse of authority,” United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002), and the accused’s conduct is “measured by an objective standard,” MCM pt. IV, para. 17.c.(2). But in its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Further, the Court held that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” 135 S.Ct. 2011. And so the issue in Caldwell was whether a post hoc objective determination that certain conduct constitutes maltreatment is adequate in the absence of some other degree of culpability in the mind of the accused.
In Monday’s decision, Judge Ohlson explains that such an objective standard is adequate because “there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ, can be said to have engaged in innocent conduct.” Slip op. at 7.
Rejecting the Government’s argument that the Supreme Court’s decision in Elonis was limited to only the federal offense at issue in that case, slip op. at 5 n.3, Judge Ohlson begins his analysis with the acknowledgement that:
generally speaking, criminal statutes should be interpreted by courts as still including “broadly applicable [mens rea] requirements, even where the statute … does not contain them.” United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994). However, in inferring a mens rea requirement in a statute that is otherwise silent, courts must only read into the statute “that mens rea which is necessary to separate” wrongful conduct from innocent conduct. Carter v. United States, 530 U.S. 255, 269 (2000); accord Rapert, 75 M.J. at 167 n.6; see also Elonis, 135 S. Ct. at 2010.
Importantly, in some instances, the mere requirement in a statute that a defendant commit an act with knowledge of certain facts—i.e., that the defendant possessed “general intent”— is enough to ensure that innocent conduct can be separated from wrongful conduct.
Slip op. at 6. Maltreatment, explains Judge Ohlson, is such a general intent offense, as:
in order to obtain a conviction under Article 93, UCMJ, the Government must prove that: (a) the accused knew that the alleged victim was subject to his or her orders; (b) the accused knew that he or she was making statements or engaging in certain conduct in respect to that subordinate; and (c) when viewed objectively under all the circumstances, those statements or actions were unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering.
Slip op. at 7 (emphasis in original). Accordingly, the issue in a maltreatment prosecution is not whether the accused actually intended (or recklessly acted) to maltreat the subordinate, but rather “is whether the superior possessed general intent to offer the statements, or undertake the conduct, that either caused or could have caused suffering.” Slip op. at 8. This is so because:
there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ, can be said to have engaged in innocent conduct.
Slip op. at 7.
A footnote, however, notes a significant defense:
This of course would not prevent a defense based on a genuinely held, reasonable mistake of fact. See Rule for Courts-Martial (R.C.M.) 916(j)(1); see also United States v. Zachary, 63 M.J. 438, 442 (C.A.A.F. 2006) (“[A]n honest and reasonable mistake of fact can negate the mens rea requirement to a general intent crime.”).
Slip op. at 8-9 n.7 (marks in original). As the Government must prove actual knowledge of an alleged victim’s status and position, a reasonable mistake of fact goes only to the objectively-viewed nature of the accused’s conduct (while actual knowledge may be defeated by any honest mistake, no matter how unreasonable). Put differently, while the Government need not prove that an accused knew that his conduct was maltreatment, it is a defense that the accused reasonably (but mistakenly) believed that his conduct was innocent. Yet “no such defense was raised by the evidence in [this] case.” Slip op. at 11 n.10.
Judge Ohlson then finds no error in the instructions given in this case, but he nevertheless provides guidance for future cases:
[W]e deem it appropriate to provide some guidance regarding how military judges, going forward, should instruct panels about the mens rea requirement for violations of Article 93, UCMJ.
General intent requires “knowledge with respect to the actus reus of the crime.” Carter, 530 U.S. at 268; see also Bailey, 444 U.S. at 403 (explaining that “[i]n a general sense, … ‘knowledge’ corresponds loosely with the concept of general intent”). In the context of maltreatment, this actus reus—that is, the “guilty act”—is the underlying, inappropriate conduct. See Carson, 57 M.J. at 415 (“The essence of the offense is abuse of authority.”). Thus, a well-constructed maltreatment instruction should not merely refer to general intent implicitly—i.e., through the invocation of the phrase “under all the circumstances.” Rather, going forward, a military judge’s instructions (in concert with the Benchbook’s approach) should more clearly and explicitly state that in order for an accused to be convicted of maltreatment under Article 93, UCMJ, the Government must have proven that:
(a) the accused knew that the alleged victim was subject to his or her orders;
(b) the accused knew that he or she made statements or engaged in certain conduct in respect to that subordinate; and
(c) when viewed objectively under all the circumstances, those statements or actions were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose and caused, or reasonably could have caused, physical or mental harm or suffering.
Slip op. at 12 (formatting added).
CAAF’s resolution of this case reflects the uniquely-military nature of the offense of maltreatment, and is distinguishable from the court’s other applications of Elonis this term: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (holding that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). And while the defense of mistake of fact wasn’t presented in this case, I suspect that CAAF’s decision won’t have a dramatic affect on the way future cases of maltreatment are prosecuted.
ACCA opinion (summary disposition)
• Blog post: CAAF grants review of a Grostefon issue
• Appellant’s brief
• Appellee’s (Government) brief
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis