¶ 16. dissenting. The majority’s decision today affirms a holding that depriving a vulnerable adult of oxygen by dunking him multiple times, without warning and against his will, should not “reasonably be expected to result in intimidation [or] fear.” 33 V.S.A. § 6902 (1)(E).4 I cannot agree with such a conclusion, and I therefore dissent.
¶ 17. The majority’s decision adopts an objective standard but then resolves the case on subjective factors. I agree with the majority’s conclusion that the standard must be objective, not subjective. I disagree with the majority’s application of that standard and with the notion that an objective standard can ever consider, let alone view “as an important factor,” ante, ¶ 12, the subjective reaction of a vulnerable adult. Because the Human Services Board applied an incorrect legal standard, and because an application of the proper legal standard reveals that, from an objective standpoint, petitioner’s conduct was abuse under § 6902(1)(E), I would reverse the Board and uphold the substantiation of abuse found by the Department of Disabilities, Aging and Independent Living.
¶ 18. As an initial matter, I cannot agree with the majority’s conclusion that we should apply a deferential standard of review in this case when it is clear that the Board applied an incorrect legal standard. As the United States Supreme Court has recognized, it is “necessarily [an] abuse [of] discretion if [a trial court] based its ruling on an erroneous view of the law.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). Here, despite the majority’s attempt to reconcile the Board’s decision with the objective analysis that is legally required, the Board’s decision in fact rests entirely on a subjective analysis. The Board therefore applied an incorrect legal standard and should be reversed.
¶ 19. That the Board’s decision rested entirely on a subjective analysis is evident from the majority’s summary of the five findings that led the Board to conclude that there was no abuse:
*551The Board found that: [1] petitioner dunked A.M. three times; the incident lasted less than twenty-five seconds; [3] A.M. was agitated prior to and during the dunking; [4] A.M. was not agitated after the dunking; and [5] after the incident, A.M. started his crunches and completed the remainder of his physical therapy program.
Ante, ¶ 15. The majority concludes that these five findings were “sufficient to support the Board’s determination that petitioner did not abuse A.M.” Id. I disagree. Of the five findings, the first two — the fact that “petitioner dunked A.M. three times” and the fact that “the incident lasted less than twenty-five seconds” — are simply stated as bare facts, and the Board does not state in its decision that these facts support its conclusion that there was no abuse. Nor could the Board make such an statement here, since the repetition of the dunking and the fact that it occurred over a significant time period could only be used to support the conclusion that petitioner’s actions were abuse.5 As for the remaining three findings, all of which deal with A.M.’s subjective reaction, again the Board simply stated these as facts and did not provide any explanation as to why they supported the conclusion that there was no abuse: the Board did not make a single finding regarding the'significance of A.M.’s subjective reaction. Perhaps the Board thought it was obvious that A.M.’s subjective reaction supported there being no abuse. But A.M.’s reaction is completely consistent with a finding of abuse — the fact-that he calmed down and began obeying petitioner’s orders could easily be seen as an indication that he was intimidated by and fearful of petitioner. At the very least, the Board needed to make a finding on this issue.
¶ 20. More important, even if the Board had made findings regarding the significance of A.M.’s subjective reaction, those findings would be irrelevant here because the statute calls for a purely objective analysis. It is the act, not its consequences or lack thereof, that defines abuse under § 6902(1)(E). The majority correctly notes that the standard must be an objective one because a standard that relies on the subjective reaction of a vulnerable adult “would mean that the more vulnerable the adult, the worse his caretaker could permissibly treat him.” In re Kleven, 736 N.W.2d 707, 711 (Minn. Ct. App. 2007). As the Department argued below, a subjective standard would mean that “there would be no protections for those, for instance, who are unable to express themselves or even, because of their impairments, to feel pain.” Although the majority purports to “agree with the Eleven decision,” ante, ¶ 9, the choice to give any weight whatsoever to A.M.’s subjective reaction is directly contrary to the Eleven decision. In Eleven, the person accused of committing abuse argued that the court should take into account the fact that vulnerable adults often react more mildly than ordinary adults — or are not affected at all — when subjected to abusive behavior. The Eleven court rejected this argument. The court did not want to adopt any sort of “no harm no foul” rule for abusing vulnerable adults, and it refused to interpret a vulnerable-adult statute in a way that “results in *552decreasing protection for increasingly vulnerable adults.” 736 N.W.2d at 711. Yet that is exactly what the Board did here, where their decision provided A.M. with less protection from abuse based solely on his failure to react in the precise manner that the Board expected that people would react when abused.6
¶ 21. In short, the whole point of an objective standard is to ensure that everyone is treated the same, regardless of what type of reaction they happen to have to a situation. See, e.g., Salmon v. Dep’t of Pub. Health & Addiction Servs., 788 A.2d 1199, 1208 (Conn. 2002) (“[A]n objective standard must be used in determining whether a resident has suffered any harm or adverse impact as a result of alleged abuse. If a subjective standard were to be employed, those residents who are im*553paired or incapable of perceiving or articulating their individual experiences would be excluded from the protection otherwise afforded by the statute; abuse, as a matter of law, could never be established in such cases.”); cf., e.g., Nat’l Labor Relations Bd. v. Deauville Hotel, 751 F.2d 1562, 1569 (11th Cir. 1985) (“An objective test... permitfs] fair treatment of everyone involved.”); DeBusk v. Johns Hopkins Hosp., 677 A.2d 73, 76 (Md. Ct. App. 1996) (“Objective standards . .. are the very keys to predictability, in the sense that everyone is treated in the same manner ....”). I therefore disagree with the majority’s conclusion that an objective analysis can “consider A.M.’s actual reaction as an important factor.” Ante, ¶ 12.7 In my view, A.M.’s subjective reaction to the situation is irrelevant to our objective analysis.
¶ 22. In this case, petitioner appears to be a genuinely caring individual with a long history of exemplary behavior, but someone who in this instance made a serious mistake. Thus, although I do not doubt that petitioner regrets her actions and is unlikely to repeat them, that should not affect our analysis of what in this instance is a very straightforward case. The question before this Court is whether, from an objective standpoint, unwarned dunkings of a vulnerable adult “should reasonably be expected to result in intimidation [or] fear.” 33 V.S.A. § 6902(1)(E). The Board noted that A.M. has only a “limited ability to walk and stand in a swimming pool.” As a result, when he enters the swimming pool, he is likely dependent on his caregiver to keep his head above water. It was abuse when petitioner did the opposite and dunked him without warning. As the Department argued below, the “fear of asphyxiation is real and terrifying.” I agree. In my view, regardless of A.M.’s actual subjective reaction, the unwarned dunkings that occurred here “should reasonably be expected to result in intimidation [or] fear.” 33 V.S.A. § 6902(1)(E). I therefore dissent.
Section 6902(1)(E) defines as abuse any intentional action that “should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress.” Although petitioner’s actions arguably trigger a number of these forms of abuse, including agitation and disorientation, I limit my discussion here to the most obvious point that her actions should be expected to cause intimidation and fear.
Surely neither the majority nor the Board is seriously suggesting that petitioner’s actions are excusable because A.M. was dunked only three times and the incident lasted only twenty-five seconds. When it comes to abuse, we do not recognize a three-strikes rule or any other defense that would excuse a solitary or brief act of abuse. Punching, kicking, or cutting off the oxygen supply of a vulnerable adult once or even twice, let alone three times, is abuse.
Again, we have no idea what type of reaction would have convinced the Board that abuse occurred here, since the Board made no findings on the significance of A.M.’s reaction. The majority fails to address the fact that, in reaching the conclusion that no abuse occurred, the only findings supporting the Board are findings relating to the fact that A.M. was not harmed. As explained above, this is apparent from the Board’s analysis of § 6902 (1)(E), where the Board listed five factual findings, two of which support a conclusion of abuse, and the remaining three of which state nothing more than the fact that A.M. was not harmed. The Board’s erroneous focus on whether A.M. was harmed is even more transparent in its analysis of § 6902(1)(B), which prohibits “conduct committed with an intent or reckless disregard that such conduct is likely to cause unnecessary harm, unnecessary pain or unnecessary suffering to a vulnerable adult.” On this point, the Board made the following five findings:
First, despite petitioner’s experience at deescalating her students’ problem behaviors, she did not apply her experience when A.M. acted up in the pool....
Second, petitioner’s explanation that she thought A.M. would associate the dunking with fun and then settle down is not credible. ...
Third, petitioner’s co-workers .. . [with one exception] were surprised and bothered by what they witnessed....
Fourth, petitioner was upset by her actions....
Fifth, A.M. was not harmed.
Of these five findings, the first four support a finding of abuse under § 6902 (1)(B). The only finding that potentially supports the Board’s conclusion that there was no abuse is the fifth one — that “A.M. was not harmed” — a conclusion that speaks only to A.M.’s subjective reaction to the situation and that therefore should not be considered. Although the majority agrees with me that the statute does not allow the adoption of a “no harm no foul” rule, the majority claims that “the Board did not adopt such a rule.” Ante, ¶ 12 n.3. But the Board’s analysis of § 6902(1)(B) makes it clear that the Board adopted precisely that type of rule when it found no abuse on the sole basis of the fact that “A.M. was not harmed,” even though every one of the remaining four factual findings pointed toward a conclusion that there was abuse. The Board adopted this same type of improper analysis in addressing whether respondent violated § 6902(1)(E). Thus, in my view, not only did the Board adopt a “no harm no foul” rule, but that rule formed the sole basis for the Board’s decision regarding §§ 6902(1)(B) and 6902(1)(E).
Several of the cases that the majority cites for this proposition are inapposite because they deal with legal standards that incorporate some requirement beyond a pure objective standard. For instance, the majority cites Almond v. Tarver, 468 F. Supp. 2d 886, 899 (E.D. Tex. 2006), because it lists “the extent of the injury suffered” among the objective factors to be considered in evaluating an excessive force claim. But the Almond court stated that excessive force claims require that the actual “injury must be more than de minimis.” Id. at 900. Thus, it is not surprising that the Almond court would look to the severity of the actual injury in evaluating those claims. Here, on the other hand, it is inappropriate to bring a subjective element into the evaluation of whether a vulnerable adult has been abused — an evaluation that does not depend at all on whether an actual injury occurred. I also disagree with the majority’s claim that Murphy v. City of Aventura, 616 F. Supp. 2d 1267 (S.D. Fla. 2009), supports folding a subjective element into an objective analysis. Murphy involved a special test under Title VII that “includes a subjective and objective component.” Id. at 1274. Here, on the other hand, the test for abuse of a vulnerable adult is purely objective.