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.