U.S. v. Brown, 55 M.J. 375

Core Criminal Law Subjects: Crimes: Article 93 - Cruelty and Maltreatment Pre-2019 offenses

1. conduct amounting to sexual harassment can be punished as a military offense if it constitutes maltreatment of a subordinate under Article 93, UCMJ

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. Article 133, prohibiting conduct unbecoming an officer and a gentleman, is constitutional as applied to members of the armed forces, so long as the accused has received fair warning of the criminality of his or her conduct
2. Article 133 is not violated by conduct that falls short of the attributes of an ideal officer and the perfect gentleman or by slight deviations constituting indecorum or breaches of etiquette, but by conduct that exceeds the limit of tolerance set by the custom of the service to which the officer belongs
3. in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, military judge did not abuse his discretion by admitting Air Force Pamphlet setting forth policy on sexual harassment to show notice of the type of conduct that was prohibited and to establish the applicable standards of conduct in the Air Force community
4. in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, notice of the type of conduct that was prohibited and the applicable standards of conduct in the Air Force community was particularly important where the charges alleged verbal and physical sexual harassment as the unbecoming conduct; under these circumstances, pamphlets or other evidence of customs and standards limiting communications with fellow officers of the opposite sex provide notice of the distinctions between permissible banter and impermissible remarks
5. Air Force Pamphlet setting forth policy on sexual harassment was relevant in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, because: (1) pamphlet’s focus on “unwelcome” comments provided notice of the standard for making the critical distinction between permissible and impermissible speech; and, (2) the pamphlet set a standard that conduct be not merely offensive, but that it be so severe or pervasive that it creates a hostile work environment
6. Air Force Pamphlet setting forth policy on sexual harassment was relevant in prosecution for conduct unbecoming an officer and a gentlemen under Article 133, UCMJ, but it may be necessary in given cases to protect against the impermissible introduction of command policy into the deliberation room by redacting some examples or by providing tailored instructions explaining the difference between examples and standards of conduct, and further explaining the manner in which the standards of conduct apply to the elements of proof
7. evidence was legally insufficient to support findings of guilty of conduct unbecoming an officer and a gentleman for persistently directing comments and questions of a personal or sexual nature to three fellow officers; the government had relied upon the policy of an Air Force pamphlet on sexual harassment to show notice of the type of conduct that was prohibited and to establish the applicable standards of conduct in the Air Force community, and the evidence showed that the verbal conduct at issue did not violate the standard relied upon by the government
8. evidence was legally sufficient to support findings of guilty of conduct unbecoming an officer and a gentleman for physical contact with fellow officers where the contact involved intimate contact with members of the opposite sex that was not incidental, collegial or innocuous, and it was not reasonable for appellant to assume that his fellow officers would consent to physical contact of an intimate nature absent some communication of receptivity or consent

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in considering whether evidence is legally sufficient, court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
2. the military judge’s decision to admit an Air Force Pamphlet on discrimination and sexual harassment is reviewed for abuse of discretion