When a service member is tried before a panel for an offense involving disrespect toward a superior, the members do not decide the case on their own sense of what disrespect means. The military judge instructs them on the law, supplying the elements the government must prove and the legal definitions that frame their deliberations. For disrespect offenses, those instructions come from the Military Judges’ Benchbook and track the punitive articles at issue, most commonly Article 89, disrespect toward a superior commissioned officer, and Article 91, insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. The instructions identify the conduct alleged, define disrespect and contempt, require knowledge of the victim’s status, and channel the members away from convicting on subjective offense alone.
The judge lays out the elements
The first function of the instruction is to state what the government must prove beyond a reasonable doubt. The exact elements vary with the article and the type of misconduct, but they share a common architecture. For disrespect toward a superior commissioned officer under Article 89, the judge instructs that the government must prove that the accused did or omitted certain acts, or used certain language, toward or concerning the named officer; that the behavior or language was directed toward that officer; that the officer was the accused’s superior commissioned officer; that the accused knew the officer was the accused’s superior commissioned officer; and that under the circumstances the behavior or language was disrespectful to that officer.
For insubordinate conduct under Article 91, the parallel disrespect theory requires the judge to instruct that the accused treated with contempt or was disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer; that the accused knew the person held that status; and that the victim was then in the execution of office. Where the victim is alleged to be the accused’s superior noncommissioned or petty officer, the instruction adds that status and the accused’s knowledge of it. Telling the members each element separately ensures they understand that knowledge of the victim’s position is its own requirement, not an afterthought.
The judge defines the key terms
Lay intuition about rudeness is not the legal standard, so the instruction supplies definitions. The judge instructs the members that disrespectful behavior is behavior that detracts from the respect due the authority and person of the superior, and that it may consist of acts or language, however expressed. The judge also instructs that it is immaterial whether the words or acts refer to the superior in an official capacity or as a private individual, which forecloses a defense that the accused was only insulting the person, not the rank.
For the contempt theory under Article 91, the judge defines treating with contempt as conduct that is insulting, rude, and disdainful, or that otherwise disrespectfully attributes to another qualities of meanness, disreputableness, or worthlessness. These definitions give the members an objective benchmark and prevent them from convicting merely because they personally found the accused’s conduct distasteful.
The judge frames the objective, circumstantial inquiry
A recurring feature of these instructions is that disrespect is judged under the circumstances, by an objective measure, rather than by the accused’s private feelings or the listener’s subjective reaction alone. The instruction directs the members to consider all the surrounding circumstances in deciding whether the conduct or language detracted from the respect due the superior. Context can change everything: tone, setting, audience, and provocation may all bear on whether the behavior crossed the line. By embedding the circumstances into the definition, the instruction tells the members to evaluate the act in its full setting rather than in isolation.
The execution-of-office requirement for Article 91 receives its own attention. The judge instructs that the victim must have been in the execution of office at the time, and may explain what that means in the context of the case, because the protection the article affords is tied to the performance of military duties.
Special instructions: divestiture and lesser matters
Disrespect cases sometimes call for instructions beyond the bare elements. One is the concept that misconduct by the superior can divest the superior of the protected status the article confers. Where the evidence raises it, the judge may instruct the members that if the superior’s own behavior toward the subordinate was a substantial departure from the required standards of conduct for one of that position, the superior may lose the protected status, so that the accused’s response would not be punishable as disrespect toward a protected superior. The divestiture must be substantial; minor or ordinary friction does not strip a superior of authority. This instruction reflects the principle that the law protects the office and proper exercise of authority, not abusive conduct cloaked in rank.
The judge will also instruct on any reasonably raised defenses and, where appropriate, on lesser included offenses, and will give the standard instructions on the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt for each element. If the disrespect was alleged through specific language, the members may be told to consider whether the words, in context, actually conveyed disrespect.
Why the instructions matter
The instruction on disrespectful conduct does real work because the concept is elastic and easily confused with mere bad manners or with a personal clash of personalities. By defining disrespect objectively, by requiring knowledge of the victim’s status, by anchoring the inquiry in the surrounding circumstances, by tying Article 91 to the victim’s execution of office, and by alerting the members to divestiture when raised, the judge keeps the members focused on the legal question rather than on their own reaction to the accused. For the defense, these instructions are leverage: counsel can request tailored language on context, on knowledge, and on divestiture, and can argue that the government failed to prove the objective standard the instruction sets.
Conclusion
A military judge instructs a panel on disrespectful conduct by drawing on the Benchbook instructions for the relevant article, typically Article 89 for a superior commissioned officer and Article 91 for a warrant, noncommissioned, or petty officer. The judge states each element, including the requirement that the accused knew the victim’s status and, for Article 91, that the victim was in the execution of office; defines disrespect as conduct detracting from the respect due the superior’s authority and person and contempt as insulting, rude, and disdainful conduct; directs the members to judge the conduct objectively and in light of all the circumstances; and, when the evidence raises it, instructs on divestiture, under which a superior’s substantial misconduct can forfeit the protected status. Together these instructions ensure the panel applies the law of disrespect rather than its own sense of offense.
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.
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