OPINION OF THE COURT
A military judge, sitting as a general court-martial, convicted appellant, contrary to his pleas, of maltreatment of subordinates (five specifications) and indecent exposure (three specifications), in violation of Articles 93 and 134, Uniform Code of Military Justice, 10 U.S.C §§ 893 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for forty-two months, and reduction to Private El. The convening authority waived statutory forfeitures for six months and directed payment of such monies to appellant’s wife. See UCMJ art. 58b(b), 10 U.S.C. § 858b(b).
In this Article 66, UCMJ, 10 U.S.C. § 866, appeal, appellant asserts as part of his third assignment of error
Facts
All of appellant’s convictions stem from his sexually harassing behavior towards three subordinates during the period 1 December 1996 through 3 June 1998. Appellant, who was the supervising desk sergeant in the military police (MP) station, repeatedly exposed his penis to Privates (PVT) K, R, and G while these female MP soldiers and appellant were performing duties at the MP station. Additionally, appellant asked PVT K to engage in oral sodomy on him in return for an assignment to a military police investigative team. He also ordered PVT R to physically search his crotch.
Appellant challenges one maltreatment specification because of insufficient evidence of PVT G’s “physical or mental pain or suffering” as a result of appellant’s one-time exposure of his penis to her. Private G was 20 years-old and had been in the Army less than a year at the time of the offense. She was working for the first time with appellant, who was supervising PVT G as part of his duties as the MP desk sergeant. At about 0100, 3 June 1998, appellant, who was wearing his Battle Dress Uniform, went inside the office bathroom. From inside the bathroom, appellant asked PVT G to hand him a bag. When she handed him the bag, she saw appellant’s penis as he stood in the doorway dressed only in a T-shirt and socks. Shortly thereafter, appellant exited the bathroom. Appellant yelled, “Hey,” at PVT G, causing her to look at him. She again saw appellant wearing only a T-shirt and socks, with his penis exposed. Appellant asked PVT G whether the patrol supervisor was reporting back to the MP station. She answered his question, and then appellant returned to the bathroom and put on his Battle Dress Uniform.
On both occasions when she saw his penis, appellant made no attempt to cover it. Appellant did not touch or attempt to touch PVT G, nor did he make any sexual comments to her. Private G did not immediately report appellant’s conduct. Private G testified that she did not ask to see appellant’s penis, she was bothered and shocked to see him expose himself, and she considered herself a victim. Appellant did not testify, and no evidence was presented that he had any reason to believe that FVT G consented to his exposure of his penis. Appellant was convicted of maltreating PVT G, a person
Maltreatment of Subordinates
The origins of the military offense of maltreatment of subordinates prior to enactment of the UCMJ in 1950 are set forth in United States v. Finch,
The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. Sexual harassment includes 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.
“The example of sexual harassment was added [to the 1984 version of the MCM] because some forms of such conduct are nonphysical maltreatment.” MCM, Article 93 analysis, app. 23, at A23-5; see also Exec. Order No. 12,473, 49 Fed.Reg. 17,152 (Apr. 23, 1984).
Although our superior court has noted that Article 93, UCMJ, “ ‘is not a strict liability offense punishing all improper relationships between superior and subordinates,”’ United States v. Fuller,
The Court of Appeals for the Armed Forces has recently addressed the issue of whether adverse victim impact is required for maltreatment without clearly resolving it, stating:
Moreover, there is some disagreement over the precise scope of [Article 93, UCMJ] in the service appellate courts. For example, in United States v. Hanson,30 M.J. 1198 , 1201 (A.F.C.M.R.1990) [, aff'd,32 M.J. 309 (C.M.A.1991)], the Air Force court held that “[t]he 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.” (Emphasis added). The Navy-Marine Corps court, however, has rejected a pain or injury requirement. See
*659 United States v. Goddard,47 M.J. 581 , 584-85 (N.M.Ct.Crim.App.1997).3
Knight,
We recognize that in certain circumstances a consensual sexual relationship between a superior and subordinate, absent additional aggravation such as an adverse impact on the victim, may not constitute maltreatment. See Fuller,
A prior decision of this court affirming a maltreatment conviction involving nonconsen-sual sexual harassment noted that “physical or mental pain or suffering” is required. See United States v. Rutko,
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,”
Multiplicity
Appellant urges dismissal of two of the specifications of indecent exposure as multiplicious with, or an unreasonable multiplication of charges of, two of the maltreatment specifications. Government appellate counsel concedes that there was an unreasonable multiplication of the charges, but recommends that we dismiss the two maltreatment specifications in lieu of the two indecent exposure specifications. We decline to accept the government’s concession and find appellant’s assertion to be without merit.
Indecent exposure is not a lesser-included offense of maltreatment because they have different elements. Compare MCM, Part IV, para. 88b (listing willful exposure as an element of indecent exposure), with MCM, Part IV, para. 17b (listing the status of the victim as a person subject to the orders of the accused as an element of maltreatment); see also United States v. Oatney,
We find that these two maltreatment specifications are not multiplicious or an unreasonable multiplication of the charges
The findings of guilty and the sentence are affirmed.
Senior Judge TOOMEY and Judge CARTER concur.
Notes
. Appellant’s third assignment of error challenges the factual and legal sufficiency of one maltreatment specification. We resolve this challenge against appellant.
. "Sexual harassment” is recognized as a form of employment discrimination, but is not expressly prohibited by the Uniform Code of Military Justice. United States v. Dear,
. On reconsideration, the Navy-Marine Corps court reversed Goddard’s conviction for maltreatment and affirmed a finding of guilty to the lesser-included offense of a simple disorder under Article 134, UCMJ, finding that "the appellant had no reason to believe that Private S was not a willing participant in the sexual activities.” United States v. Goddard,
. In accordance with this opinion, we recommend modification of paragraph 3-17-1 d of the Military Judges’ Benchbook, to state that in non-consensual, 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.”
. MCM, Part IV, para. 17c(2).
. See Rule for Courts-Martial 307(c)(4) discussion; Balcarczyk,