Article 93 of the Uniform Code of Military Justice punishes cruelty, oppression, and maltreatment of a person subject to the orders of the accused. The classic case involves a leader who personally abuses a subordinate. A harder question arises when a leader does not lay a hand on anyone but stands by while those beneath them abuse others, or while one subordinate mistreats another. Can that failure to step in support liability under Article 93? The answer turns on the precise wording of the article and on a general principle of military criminal law about when inaction becomes a crime.
The elements of Article 93
Article 93 has two elements. First, that a certain person was subject to the orders of the accused. Second, that the accused was cruel toward, or oppressed, or maltreated that person. The cruelty, oppression, or maltreatment is measured by an objective standard, and the government does not have to prove that the victim actually suffered physical or mental harm. It is enough that the conduct, judged objectively, was abusive of the position of authority. The essence of the offense is abuse of authority over a subordinate.
Two features of these elements shape the failure-to-intervene question. The first element requires a superior-subordinate relationship: the victim must be subject to the orders of the accused. The second element is phrased in terms of what “the accused” did to “that person.” On its face, Article 93 describes conduct by the accused toward a subordinate, not a freestanding duty to police the conduct of others.
When inaction can be criminal
Military criminal law recognizes that doing nothing can sometimes be the equivalent of acting. Under the law of principals, mere presence at the scene of a crime does not make a person liable, but inaction can create liability where the person had a duty to act and failed to do so. A leader’s position can be the source of that duty. Commanders and supervisors carry legal responsibility for the welfare and good order of those under them, and that responsibility can transform a deliberate failure to intervene into culpable conduct.
This is the doorway through which a failure to intervene may reach Article 93, but it is a narrow one. The theory is not that the leader watched someone else commit abuse. The theory is that the leader’s own choice to permit the abuse, when the leader had both the authority and the duty to stop it, was itself an abuse of authority over the victim. In that framing, the leader’s inaction is the cruelty, oppression, or maltreatment, because the leader exploited the position of trust by allowing harm to continue.
The relationship that must exist
Because the first element requires the victim to be subject to the orders of the accused, the failure-to-intervene theory works most cleanly when the leader who failed to act held authority over the victim. A platoon sergeant who knowingly allows junior members to haze a private under that sergeant’s authority is in a different position from a bystander who has no command relationship with the victim. The article is built around the abuse of a superior’s authority, so the prosecution must connect the accused to the victim through that chain of orders.
Where the abuse is committed by the accused’s own subordinates against another of the accused’s subordinates, both ends of the relationship can be satisfied: the accused has authority over the abusers and over the victim. That structure gives the government its strongest version of a failure-to-intervene case. Where the victim is outside the accused’s authority, the first element becomes difficult, and prosecutors may look to other charges such as dereliction of duty.
Knowledge and the choice not to act
A failure-to-intervene theory depends on proof that the accused knew the abuse was occurring and chose not to stop it. Negligent ignorance is a weaker foundation than knowing acquiescence. The conduct that Article 93 condemns is the affirmative abuse of authority, and allowing ongoing abuse looks most like such an abuse when the leader knew what was happening, had the power to end it, and let it continue. A leader who genuinely did not know, or who reasonably could not have intervened, is far less exposed under this article.
Related charges and the role of counsel
A failure to intervene rarely arrives as a single, tidy Article 93 charge. The same facts may also support dereliction of duty under Article 92, which directly addresses a failure to perform a known duty, and may interact with the law of principals under Article 77 if the leader’s inaction effectively facilitated the abuse. Prosecutors sometimes plead in the alternative, and the choice among these theories carries real consequences for what must be proven and for the maximum punishment.
For the leader facing such an allegation, the defense often centers on whether the relationship element is satisfied, whether the accused actually knew of the abuse, whether the accused had a genuine duty and ability to intervene, and whether the inaction can fairly be called an abuse of authority rather than a lapse better charged as dereliction. These are fact-intensive questions that depend on the chain of command, the timing, and what the accused knew and when.
In short, a failure to intervene in ongoing abuse by subordinates can support Article 93 liability, but only where the victim was subject to the accused’s authority, the accused knew of the abuse and could have stopped it, and the deliberate decision to permit it amounted to an abuse of that authority. Because the theory rests on the duty-to-act principle and overlaps with other articles, anyone confronting it should consult an experienced military defense attorney to test each element against the facts.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.