The current version of Article 120 includes the following definition

(2) Sexual contact.—The term “sexual contact” means—

(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Touching may be accomplished by any part of the body.

UCMJ art. 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). If an accused touches an alleged victim with a stethoscope (while pretending to conduct a medical examination, perhaps), can that touching constitute sexual contact?

Yes it can, finds Judge Haight, writing for a three-judge panel of the Army CCA and granting a Government interlocutory appeal in United States v. Schloff, No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014) (link to slip op.).

Appellee, a physician’s assistant, was charged with, inter alia, abusive sexual contact for “touching with a stethoscope the breasts of [] Sergeant [CP] by making a fraudulent representation that the sexual contact served a professional purpose,” a violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 120 [hereinafter UCMJ]. Contrary to his plea, an officer panel found appellee guilty of this specification and sentenced him to a dismissal. Immediately thereafter, the military judge dismissed that specification and charge for failure to state an offense and set aside the findings of guilty and the sentence.

Slip op. at 1-2. The military judge took this action after concluding that:

The offense of abusive sexual contact under Article 120(d) requires a sexual contact. The definition of sexual contact, provided in Article 120(g)(2), requires the touching of another person. Article 120(g)(2) also states that “touching may be accomplished by an y part of the body.” In so providing, [C]ongress has limited the offense of abusive sexual contact to a touching in which some part of the accused’s body touches the alleged victim. With regards to Specification 2 of the Charge, the specification alleges that the accused touched SGT CP’s breast with a stethoscope – not with any part of his body. The evidence at trial was consistent with the specification, establishing only that the accused touched SGT CP’s breast with a stethoscope.

The statutory language providing that “touching may be accomplished by any part of the body” unambiguously limits a sexual contact to a touching accomplished by some part of the accused’s body.

Slip op. at 2 (quoting record). The military judge then determined that based on this conclusion, the evidence was not legally sufficient to support the conviction and sentence.

But the CCA finds fault with the judge’s conclusion, deciding instead that “appellee touched Sergeant CP with a stethoscope. That touching, if done under the requisite circumstances, can constitute a sexual contact.” Slip op. at 5. Judge Haight identifies three factors supporting this result: First, “the statute does not require direct contact.” Slip op. at 4. Second, it is “appropriate and proper to interpret ‘touching’ for purposes of Article 120, UCMJ, consistently with ‘touching’ for purposes of Article 128.” Slip op. at 4. Finally, while the military judge found that the statutory language that “touching may be accomplished by any part of the body” was a limitation on the reach of the statute, Judge Haight writes that this sentence “is unambiguously permissive and not exclusive.” Slip op. at 5.

54 Responses to “Can touching with a stethoscope constitute sexual contact?”

  1. Matt says:

    I strongly disagree with this decision.  The statute is clear and I think the trial judge got this one right.  Article 120 is not the same as 128.  A conviction under 120 carries drastic lifelong consequences that you don’t get with 128, and it should be interpreted narrowly.  Hopefully CAAF will fix this one.

  2. Zachary D Spilman says:

    Your comment raises an interesting point Matt. Even if the evidence is legally insufficient to prove a sexual contact sufficient to support to conviction for abusive sexual contact, why isn’t it sufficient for the lesser included offense of assault consummated by a battery?

    The CCA’s opinion indicates alternatively that the judge dismissed the charge for failure to state an offense and for legal insufficiency. I think the specification pretty clearly states an offense (the members could except the words “with a stethoscope” if they found a direct touching), and I don’t see why any judge would wait until after sentencing to dismiss a specification that didn’t state an offense. It also seems like the judge could have entered a finding of not guilty under RCM 917 to the greater offense of abusive sexual contact and let the members reach a decision on the lesser offense of assault consummated by a battery (though the Government could have appealed that as well).

  3. Broken System says:

    “One can easily imagine countless more examples involving indirect contact by objects such as gloves, comdoms, sex toys, and sadomasochistic devices that could surely fit under the umbrella of “sexual contact””
    Huh?  What does imagination have to do with legal authority and appellate court opinions???
     
     

  4. Scott says:

    Interesting procedurally that the trial judge dismissed the specification after the findings and sentence.  Presumably the issue was raised by the defense earlier and the ruling was deferred.  Maybe the judge realized it was an uncertain legal area and wanted to let the trial finish in case the ruling was overturned.  It’s easier to reinstate the verdict and sentence than to re-litigate the case. 

  5. Bill Cassara says:

    I have a somewhat more basic question: Was this decision even appealable? 

  6. Phil Cave says:

    [Caution, am counsel in this case at trial and on appeal]
    Military Judge refused to instruct on LIO of 128.  Client was charged with committing the offense by making a fraudulent representation – not something we see very frequently.  But I happen to have a number of medical personnel clients who are getting accused of sexual assaults while doing exams and giving medical care – it’s something of a niche in the military sexual assault realm.
    Issue raised early, before evidence.
    Issue raised at 917 time along with a 917, for reconsideration.  Judge kicked can.
    Issue raised after findings under Griffith (yes, one of my favorite cases) and for reconsideration.  Judge kicked can.
    Sentence announced – judge ruled.

  7. DCGoneGalt says:

    Prior to 2007 this offense was indecent assault and the instruction on this issue was the same as that for assault and battery, which allowed for the case where someone was contacted with an object.   This is because it was defined as an ASSAULT offense.
     
    Congress chose to make it a sexual contact offense that requires touching either directly or through the clothing.  Congress may have intended to allow the vicarious touching but they chose to define it as touching “with any part of the body” another “directly or through the clothing”.  They took away the ability to charge as a touching with an object because the crime is defined as a CONTACT offense. 
     
    Seems to me the UCMJ leaves this as an assault and battery, not a sexual contact offense. 
     

  8. Phil Cave says:

    To clarify.
    After the findings were announced, the defense asked the MJ to reconsider the dismissal.  Also, as is my frequent custom I asked the MJ to enter a finding of NG on the remaining spec, based on United States v. Griffith, 27 M.J. 42 (C.M.A. 1988), see also United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).  The MJ specifically considered that request and denied it – in effect finding that for him the evidence was legally sufficient – if the charge stated an offense.  [this is in the ROT]
    You’ll recollect the case a little while ago blogged here where the MJ didn’t know – and apparently the counsel may not have known about Griffith.
     

  9. Peanut Gallery says:

    A few thoughts. 
    (1) Interlocutory appeal tells me the Govt wanted this one bad.  If that’s the case, why the overreaching?  Why not go for the sure[r] thing and charge under 128?
    (2) Interesting that the MJ waited until after findings and sentence before dismissing. If jeopardy was the concern, doesn’t jeopardy attach after Gov begins introducing evidence?
    (3) I disagree with the panel’s textual analysis of the statute.  Although the statute does not require direct contact, the plain language only allows for one alternative: through the clothing.  Maybe I’m reading too strictly, but I read that to mean skin-to-skin or skin-to-clothes.  Not skin-to-object-to-skin/clothes.
     

  10. Tom Grieger says:

    There must be quite unusual facts not included in the summary.  Having “touched” hundreds, if not thousands, of women with stethoscopes over thirty years of practice I found none of the instances to contain any aspect of degrading, abusing, humiliating intent or in any way arousing to anyone.  I guess that doing the exam and requiring her to expose her breast with no clear medical indication might lead one to infer arousing or gratifying intent.  

  11. RKincaid3 (RK3PO) says:

    Welcome to bizarro world where EVERYTHING is about sex and sex assault to be punished wihtout regard to whether it really is a sex thing or sex assault thing.
     
    Thanks, CONGRESS.  The court’s reasoning is flawed on many levels (especially in trying to ignore the plain text), but it is simply trying to execute Congressional intent, which is simply that everything is about sex and sex assault.  But, more importantly, it is not as flawed as the mess that is Art 120, or the mess that is the person who actually prosecutes this type of case in order to stay favorable and promotable in the eyes of an all too fickle Congress that doesn’t know what it is doing when it comes to governing the Armed Forces.

  12. k fischer says:

    I wish they would have included a few more facts from this case, but the military judge did state that if offending touching can be accomplished with an object, then the evidence is legally sufficient.  So, what if he touched her breast with an ice cube instead of a stethoscope?  That is an object.  And if that were my wife, I’d be extremely upset.  Would the MJ have dismissed in that scenario?
     
    I will take the judge’s word for it, but I would have liked to have known the facts showing this was more than just a typical doctor’s exam because Dr. Grieger is right.  The fact that it was a touching with a stethoscope, and not a vibrator, ice cube, etc. makes me wonder what protections doctors have from examining a patient and being accused of sexual assault, to which having a female doctor nowadays isn’t necessarily a safe harbor, either.  
     
    Do I get to accuse my PCP of assault because his finger went a little too far or lingered there a little too long during my annual prostate exam?  I mean, the last time, I got to “Wherever you’re going, I’m going your way,” which might have sent some mixed signals…..

  13. DCGoneGalt says:

    k fischer:  If it was an ice cube or any other object then the charge would be assault and battery unless there was penetration of a listed orifice that made it sexual assault if it was done under the false pretense that the act served some medical purpose.  The sexual assault indirect touching theory which borrows from Art 128 battery went the way of the dinosaur when indecent assault ceased to exist in 2007.  The finger example in a prostrate exam is a good example of what would be sexual assault (if done with false pretenses that it was with a medical purpose). 
     
    I know it seems ludicrous that one could take an object and touch someone’s vagina/penis/breast without their consent and it is not sexual assault/contact (especially when it seems that virtually any actual touching through the clothes can qualify as a sexual contact).  However, that is the legal framework that Congress has created.  I would agree that it is ridiculous but no matter how ridiculous you can’t read away what the statute actually says. 
     
    Take hope in this:  this legislation helps you help yourself to pay your bills.  Don’t you want Congress to help you help yourself?

  14. k fischer says:

    DCGG,
     
    No, Jerry McGuire. (I saw what you did there)  Representing the innocent is extremely stressful.  It’s the equivalent of hoping that a friend’s child is paralyzed in a car accident, so they will hire me.  If I ever got that cynical, then I think I’d go do property closings, although, I couldn’t quote Tom Cruise and/or 80’s movies lines.

  15. Christian Deichert says:

    Phil Cave – Regarding Hernandez, I don’t think it was an issue of anyone being ignorant of Griffith.  While I’m sure defense would have been perfectly happy with a not guilty verdict, I know they wanted the mistake of fact offense to apply not just to that 125 case.  I believe that the judge ruled the way he did in order to let ACCA and CAAF to weigh in as well, else he would have acquitted him on both charges and specifications.

  16. (Former) ArmyTC says:

    For discussion: A male touches someone else’s face with a condom-clad penis. Not clothing and not direct. Did a sexual contact occur? Assume the requisite intent exists.

  17. k fischer says:

    (F)ATC:  
     
    Yes, see United States v. Schloff, No. 20140708 (A. Ct. Crim. App. Dec. 16, 2014).  Assuming it is the Accused’s condom-clad penis, it is absurd to think that an accused is prohibited from touching a woman’s face with his erect penis bulging through his pants, but Congress intended that if he pulled his penis and put on condom on it, it would be mighty fine because a condom is not clothing.  In the very least, he is wearing clothing made of rubber, hence the term “wearing” or “condom-clad.” 

  18. DCGoneGalt says:

    k fisch:  If you consider Schloff then yes (F)ATCs hypo is a sexual contact.  However, based on a straightforward reading of the words of the statute, which I believe to be the controlling authority, the hypo is a sexual contact.  Condoms are not clothing (just give the degraded fashion of the day more time to devolve) and the touching is not direct.  IMO, it remains assault and battery.
     
    However, if the condom-covered penis penetrated the mouth rather than just touching the face it would be a sexual act rather than a contact as it would constitute penetration of the mouth by any part of the body (the penis) or any object (the condom) with the intent to arouse or gratify sexual desire.  In a weird twist, that would take it above the level of sexual contact (which is bypassed completely because there is no actual touching directly or through clothing) and make the act a sexual assault. 
     
    This hypo has gotten weird enough.

  19. anon says:

    Foremost, I would like to thank Mr. Cave for clarifying the procedural posture (my OCD was kicking in regarding jurisdiction under Article 62).  Its interesting to note the object of the action (alleged victim) was specifically referenced as being clothed or unclothed, however, the actor (alleged perpetrator) was only referenced in relation to contact with the body (“touching may be accomplished by any part of the body”). I believe in Latin they would call this Judge Haight’s oscitur a sociis expressio versus MJ’s unius est exclusio alterius with a schmeer (a little Yiddish for good luck) of interpreting a statute that would not lead to absurd results.  Seth

  20. DCGoneGalt says:

    anon:  IMO, the statute requires no interpretation on this point, the words of the statute are clear.   If that is not what Congress intended the statute to say then Congress should have made it said what they wanted it to say and they are free to change it in the future. 
     
    An absurd statute creates absurd results.  The fix should not be to judicially fix a perceived Congressional mistake.  Congress can fix their own mistakes on their own time.  Until then, the law says what it says.  A is A.

  21. k fischer says:

    Yes, the plain reading of the statute controls unless it leads to an absurd result, at which point you look to the legislative history.  
     
    I think the condom example is an absurd result.  The stethoscope example, because of the physician’s status, is less of an absurd result in my mind, and the Court’s speculation about other objects of a more sexual nature are well taken.  I think a stethoscope by a doctor is not in the same ballpark as a dildo, so I would like to know more about the facts of the case to see what the judge meant when he said the findings would be legally sufficient if the statute permitted the touching by an object to be a violation.
     
    But, to get back to the condom example and how that is an absurd result in my opinion, look at the legislative history.  If indecent act is no longer under the UCMJ because it was subsumed by the new Article 120, and it would have been an offense under the old article 134 offense, then that’s an indication that Congress did not intend for a condom wrapped penis slapping a woman in the face to be excluded as an offense because a condom, technically, is not clothing.  Would you argue that at a 917 motion or a panel, or both?  You’d argue that at a 917 motion because to argue that in front of a panel would be absurd. 
     
    That being said, Phil did a great job arguing this issue at the 917 because he was certainly successful at the trial level, and perhaps CAAF will overturn the ACCA, and I’m just plain wrong.

  22. stewie says:

    I don’t know. There’s an argument for plain reading in this case, there’s also an argument for an absurd plain reading.  If we are plain reading this to say a condom on a penis touching a face only counts as an assault and not a sexual assault, that’s pretty absurd. I don’t think it was intended by Congress.  I think one can read the statute “plainly” and still consider it a sexual assault.

  23. DCGoneGalt says:

    Not seeing it, the words are clear.  Reinterpreting (I would call it judicially rewriting) to avoid an “absurd” result is a slippery slope.  It allows a pro-defense or pro-government judge to avoid whatever they consider to be an absurd result depending on their leanings on the issue.  We have to live with the absurd results of absurd legislation until Congress changes it.  

  24. stewie says:

    No actually we don’t. We interpret all of the time because we realize that perfect legislation can’t be written, and it makes less sense to redo the legislation each and every time an absurd result comes along IF there is a reasonable way to interpret what is already there.
     
    and here, there is a reasonable way.

  25. DCGoneGalt says:

     I maintain it is Reading Comprehension 101.

  26. k fischer says:

    And the statute reads: 
     

    (B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

     
    ANY TOUCHING is pretty broad. The clarification that the touching may be accomplished by any party of the body, just means that the Accused’s body must be.used to accomplish ANY touching, which is bit ambiguous because it says to me that touching with a sex toy or doctor’s tool would fit under the definition of ANY touching.  To you, it means a body part must touch another person’s body part directly or through the clothes.  
     
    So, did the doctor use any part of his body to cause his stethoscope to touch this female NCO’s breast?  Yes, his hand was used to accomplish her breast being touched by the stethoscope.  
     
    I would say if a 15 yr old boy threw a paper wad down the shirt of a female in his class because he wanted to see it lodge in her cleavage to humiliate her or satisfy his lust or sexual desires, then that would qualify, as well, under the plain meaning of this statute.  So, if you will excuse me, I have to go register with the Sheriff.

  27. DCGoneGalt says:

    Ugh, I am done. 
     
    All SAPRO briefs are henceforth to be replaced with forcing all DOD employees to gather in large groups and karaoke Jermaine Stewart’s “We Don’t Have to Take Our Clothes Off (To Have a Good Time)” on a quarterly basis.  That should eliminate the problem so long as a disclaimer precedes the video that informs everyone they can only drink a reasonable amount of cherry wine prior to having said fun.
     
    https://www.youtube.com/watch?v=HWZisnZ-RGE
     

  28. k fischer says:

    Maybe the DoD and SHARP can contract with Weird Al to write a song based on Schloff and (F) ATC’s example:
     
     
    You don’t have to take your–clothes off,
    to commit Sexual–Contact.  
    If you touch a woman–in the face
    with your condom-clad–penis.  
     
    You’ll get so convicted, Mmm Hmmm,
    of sexual contact,  Uh-huh.  
    You can be fully clothed, Uh-huh,
    that ain’t no defense, Nuh-uh.

  29. k fischer says:

    Speaking of cherry wine and 80’s references, I think Uncle Ned was trying to get Alex drunk in this clip because he is a sexual predator, but Alex girded his loins and didn’t share his cherries with Ned.  Bad move, Alex P. Keaton. You could have sued him for millions after he won back to back Oscars.  

  30. DCGoneGalt says:

    While that is utterly amazing, I cannot approve of that song because I believe you would have to take your clothes off.  I would change it to “you do have to take your clothes off” or change it to “to commit assault and battery” and “of assault and battery”.  But that just doesn’t rhyme quite as well as your tune which, sadly, I can almost imagine being featured in a military-specific radio ad for Saul Goodman.   
     
     

  31. stewie says:

    kf and I don’t always agree, but when we do, we prefer Dos Equis.  I completely agree.  “ANY Touching” says nothing about “gotta be your body part and only your body part, you can’t accomplish the touching with an item.”

  32. DCGoneGalt says:

    Stewie:  The facts of the case and the facts of k fischer’s hypo all required direct touching rather than touching with an object in order to constitute sexual contact because the transitory nature of touching via an object (stethescope/condom) was eliminated with the change from indecent assault to sexual contact.  However, while the definition of sexual contact does not allow for touching with an object it does allow for touching through clothing.  So if a person wearing pants were to do a clothed hip thrust to satisfy themselves or to degrade or humiliate the other person then that would also be a sexual contact.   

  33. stewie says:

    You read into the statute “touching can’t be done with an object.”  The statute is SILENT as to manner. It doesn’t say “touching with a body part of the accused the body part of the victim or through the clothing.”  All it says is “any touching.”  How the latter gets transformed to the former I don’t quite get.  I can see a very narrow reading that gets you there, but it’s not the only rational reading.
     
    Heck, you can cause a whole other person to do the touching.  So, touching with a vibrator, no, but touching with another person entirely yes? Come on, that’s internally inconsistent.

  34. DCGoneGalt says:

    Webster’s Dictionary:  Touch – 1) to put your hand, fingers, etc. on someone or something, 2) to be in contact with (something)
     
    The statute says touch directly or through the clothing.  It does not say “or cause something to come in contact with”.  Assault and battery contains that specific principle.  And so did indecent assault prior to 2007.  Congress chose to eliminate it and change the offense to a sexual contact offense that was limited to the word touch.    

  35. k fischer says:

    DCGG, 

     
     So if a person wearing pants were to do a clothed hip thrust to satisfy themselves or to degrade or humiliate the other person then that would also be a sexual contact.   
     

    Exactly.  So, if I’m turnt up on the dance floor in the club and Miley Cyrus rolls up and starts twerking on my junk without my consent, then she is guilty of sexual contact.  ****disclaimer–this is a hypo for which none of it should be taken to mean that I would ever be in a club, turnt up, or allow such a loathsome person to approach me close enough to twerk on my junk. 

  36. DCGoneGalt says:

    K Fischer:  Yup, in that scenario she would be guilty of sexual contact.  But if she rubbed on your “junk” with her large foam finger thingy instead of grinding on you, then you were assaulted and battered but not sexually contacted.    Unless the court finds that the large foam finger is a glove, and thus considered to be clothing. 

  37. (Former) ArmyTC says:

    Well…this thread went places when I wasn’t looking…and DCGG was correct: it got weird.

  38. stewie says:

    Here’s a link to the entire Webster’s definition for touch:
     
    http://www.merriam-webster.com/dictionary/touch
     
    Please note:
     

    1 :  to bring a bodily part into contact with especially so as to perceive through the tactile sense :  handle or feel gently usually with the intent to understand or appreciate <loved to touch the soft silk>

    2 :  to strike or push lightly especially with the hand or foot or an implement
     
    Key word in 2 that I think addresses this situation.

  39. DCGoneGalt says:

    I can’t pull the definition online that you posted, likely due to some net filter.  However, you have to read that with the statute language that says “[t]ouching may be accomplished by any part of the body” in the last sentence of Art 120(g)(2) which covers both of the methods of sexual contact.  The body part must touch directly or through clothes, and touching is defined as being with a body part.  The statute is clear.

  40. stewie says:

    Nope, if touching involves “hand, foot OR an implement” by definition, then you can accomplish that by any part of the body.

  41. DCGoneGalt says:

    Not when the statute says “touching may be accomplished by any part of the body“.  It doesn’t say implement, stethescope, condom, or foam finger.  It says any part of the body.  I happen to read “any part of the body” as any part of the body. 

  42. stewie says:

    And I look at the definition of touching, and the word may…

  43. k fischer says:

    DCGG,
     
    Miley’s foam finger touching my junk is also sexual contact because she used her hand and arm, which are both parts of her body, to accomplish the touching of my junk with the foam finger.
     
    So, we should settle this with a poll.  Currently you have 5 to my 7.  
     
    Supporting your interpretation is:  You, Phil Cave, and the MJ Bridges (who sort of supports your side), Matt, and Peanut Gallery.
     
    Supporting my side is: me, the brilliant legal mind belonging to Stewie, the three judges at ACCA, Judge Hight, Cook, and Tellitocci, anon, and (F)ATC whose hypo was clearly intended to show the absurdity the notion that a sexual touching cannot be accomplished by part of the body covered by an object.
     
     

  44. k fischer says:

    DCGG,
     
    So, would you argue to a panel that a doctor who whipped out his condom clad penis and rubbed it on an unsuspecting patient was not guilty of sexual contact because he was wearing a condom which is an object and he didn’t touch her with his bare penis?   Therefore the touching does not meet the definition of sexual contact, so they must acquit him of that and find him guilty of the lesser included offense of assault?
     
    Would you seriously make that argument in front of a panel?   Because let me know if you do, so I can watch.  (Does your military judge let members of the gallery bring popcorn to the trial?)  :  )  

  45. DCGoneGalt says:

    The three ACCA judges trump anyone else at this point.  I could have sworn there was a case on here a few months ago on this exact issue that came to the opposite conclusion (I recall it being NMCCA) but, for the life of me, I can’t find it. 
     
    If that was the fact pattern that I had, the client pled NG and there no reasonable dispute that the incident occured then I would certainly argue it in front of members if that was the only card I had.  However, this is either a motion to dismiss or 917 motion for a judge.  It is certainly not one I would look forward to arguing to a panel. 
     

  46. stewie says:

    That it’s 5-7 or whatever the ratio ends up being, tells me reasonable minds can disagree, and when reasonable minds can disagree, that tells me the statute is not, on it’s face, subject to one, and only one interpretation.

  47. DCGoneGalt says:


    United States v. Quick, (N-M. Ct. Crim. App. Oct. 31, 2014)

  48. DCGoneGalt says:

    Just had someone point out that while CAAFLOG did cover the case I thought I remembered, it was actual live viewing v later recorded viewing in 120c from the Quick NMCCA case.

  49. k fischer says:

    Stewie, 
     
    Well, that means that the statute is ambiguous, so have you thought:
     

    Maybe we should consider this for a second.
    Maybe–and I’m just spit balling here-but
    maybe we as JAG officers have a responsibility
    to resolve all ambiguities in Schloff’s favor.

    Maybe we as JAG officers have a responsibility
    to this country to see that the men and
    women charged with crimes at court martial are protected by the
    Due Process provisions of the 4th Amendment. Yes. I’m certain
    I once read that somewhere. And now I’m
    thinking that your suggestion of legislating from the bench, while expeditious, and certainly painless, might not be in a
    manner of speaking, the American way.Sorry, couldn’t resist.

  50. stewie says:

    I don’t know if it’s ambiguous, Colonel k-essup, just prone to two interpretations. 

  51. RKincaid3 (RK3PO) says:

    (B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

    Oh yeah…”masturbation” could arguably fit that section. Would probably fail for other reasons, but applying the plain language of the statute to masturbation, the charge would certainly fit self-gratification.

  52. stewie says:

    Soooo many jokes there.  Soooo many jokes.

  53. k fischer says:

    I didn’t know droids did things like that, but, then again, you are a protocol droid.

  54. DCGoneGalt says:

    RK3PO:  Perhaps it could only be a sexual contact offense if the act of self-love is done to to “another person” who shares your body:
     
    1) Threatening or placing another in fear – What if you are split personality and threaten your other self to let you touch the body part? And who does the body part really belong to if both you and your other personality are self-aware at the same time?
     
    2) Causing bodily harm to that other person – While acts of self-love can cause harm to yourself, what if there is another person living in your head who shares the same body?  And if you are able to communicate between your personalities you could cause bodily harm to the other person, couldn’t you?  I am not sure if different personalities have a contractual time-share on the single body they inhabit.
     
    And on and on as for fraudulent representation, inducing a belief by artifice/concealment, on one who is asleep/unconscious/unaware, incapacitated or with a known mental disease/defect (what if one personality knows of a defect the other personality has?). 
     
    I am sure someone somewhere could find a forensic psych to at least advance the theory in a motion.
     
    K fischer:  Now this is an argument I would love to see in front of members.