CAAF will hear oral argument in the interlocutory Army case of United States v. Schloff, No. 15-0294/AR (CAAFlog case page), on Tuesday, April 28, 2015 (after the oral arguments in Murphy and Stellato). The court will consider a single issue:

Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

I discussed the Army CCA’s opinion in this January post titled: Can touching with a stethoscope constitute sexual contact? Appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). Three specifications were referred to trial, and Appellant was convicted of one.

All five specifications alleged that Appellant committed sexual contact by “touching with a stethoscope, the breasts of [an alleged victim] by making a fraudulent representation that the sexual contact served a professional purpose.” Each specification involved a separate alleged victim. The complete charge sheet is provided in the appendix to the Government’s brief.

Note: The charge sheet attached to the Government’s brief is not redacted. It shows Appellant’s full SSN and the rank and whole name of each alleged victim. The Government’s brief also includes unredacted extracts from the trial transcript. This appears to be a wholesale violation of CAAF’s 2010 order regarding electronic filing. 69 M.J. 204-06. See also Notice Regarding Case Information.

The definition of sexual contact is:

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.

Article 120(g)(2), 10 U.S.C. § 920(g)(2) (2012). Appellant asserted at trial that touching with a stethoscope does not meet this definition and so the specifications failed to state an offense. The judge deferred ruling on the issue until after the members found Appellant guilty of one specification and sentenced him to a dismissal. The judge then set aside the findings and sentence and dismissed the specification for failure to state an offense. The judge ruled that:

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. Had Congress intended otherwise, they would have added the words “or object” at the end of that sentence. This conclusion is bolstered by the fact that Congress was aware of the distinction between body parts and objects, as reflected in its definition of sexual act in the same statute. That definition of sexual act, contained in Article 120(g)(1), provides that the penetration required for a sexual act may be accomplished “by any part of the body or by any object.”

App. Br. at Appendix A. The Government appealed and the Army CCA reversed, finding that touching with a stethoscope “if done under the requisite circumstances, can constitute a sexual contact.” United States v. Schloff, No. 20140708, slip op. at 5 (A. Ct. Crim. App. Dec. 16, 2014). The CCA’s decision was based on three factors: 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, the CCA found that this sentence “is unambiguously permissive and not exclusive.” Slip op. at 5.

CAAF then granted review.

Appellant’s brief argues that the statutory language is unambiguous and “does not contemplate criminal liability
without a bodily touching.” App. Br. at 12. Quoting the military judge, Appellant’s brief notes that:

“Had Congress intended otherwise, they would have added the words ‘or object’ at the end of that sentence Congress was aware of the distinction between body parts and objects, as reflected in its definition of sexual act in the same statute.” (Appendix A). His decision was rational and supported by the record.

App. Br. 13. Because the question of whether a specification states an offense is a question of law, CAAF will review this issue de novo, and may substitute its own judgment for that of the military judge (reversing even if it finds the judge’s ruling to be rational and supported by the record).

The Government’s brief also asserts that the the statutory language is unambiguous: “The Army Court found that the provision, ‘touching may be accomplished by any part of the body’ is unambiguously permissive and not exclusive.'” Gov’t Br. at 8. The brief argues that:

Plain language and statutory interpretation makes clear that Congress intended this additional language to expressly include touchings that may be accomplished by a part of the assailant’s body, but does not fully rise to the level of rape or the greater sexual assault. “May” is a permissive term, one chosen by the legislature to express its intent to separate offenses of a sexual nature from any other possible theory of criminal liability under the code. Congress did not use “will” or “shall” when stating that abusive sexual contact may be accomplished by any part of the body. It can be presumed that the lack of prohibition or other limiting language was deliberate. With the revisions to Article 120, Congress expanded the strict definitions of penetrative sexual assaults, allowing for criminal liability under Article 120 for other criminal sexual conduct. This deliberate expansion of criminal culpability cannot reasonably be interpreted to include such draconian limits that would result from affirmation of the military judge’s interpretation of the word “touching.”

Gov’t Br. at 9-10. I think the Government’s argument about the use of the word may has the potential to be very persuasive, but it’s use of the word draconian in the context of a possible limit on the scope of criminal liability is laughable. Draconian laws are overly broad, not overly narrow.

An amicus brief filed by a Special Victim Counsel (presumably representing the interests of the victim named in the specification of which Appellant was convicted) also argues that the statutory language is unambiguously broad:

Focusing primarily on subparagraph (B) , the language is noticeably broad. “Sexual contacts” under this provision includes any touching to any body part of any person if intended to sexually arouse or gratify any person. In this portion alone, the word “any” is used and applied four times. This is expansive language used to broaden the possibilities under which a sexual contact may occur. The legislature included the last clause – Touching may be accomplished by any part of the body – to reiterate and clarify the expansive applicability of this subparagraph, not to limit or exclude certain touchings.

Amicus Br. at 5.

I disagree with the various assertions that the definition of sexual contact is unambiguous; I think there’s plenty of room in the text for the arguments of both parties. But I also think that the Government’s reading of the statute would render the final sentence (“Touching may be accomplished by any part of the body”) superfluous, because if the statute’s reference to “any touching” encompasses all offensive contacts, then the further explanation is unnecessary.

However, the amicus brief also discusses the offense of assault consummated by a battery in violation of Article 128 as a lesser included offense of the charged abusive sexual contact. I see no reason why a conviction for assault consummated by a battery could not be affirmed even if the military judge’s ruling about the meaning of sexual contact is found to be correct. It seems, however, that the military judge never considered that option. CAAF could issue a narrow ruling in this case, finding that sexual contact does require some form of body-to-body contact, but reversing the military judge’s ruling dismissing the specification because of the failure to consider a conviction of a lesser included offense.

Case Links:
ACCA opinion
Blog post: Analysis of ACCA’s opinion
Appellant’s brief
Government’s brief
Amicus brief (SVC)
• Blog post: Argument preview

22 Responses to “Argument Preview: United States v. Schloff, No. 15-0294/AR”

  1. Phil Cave says:

    (Note I was counsel for Schloff at trial, and am on appeal one of his counsel.)
     
    The gubmint requested an instruction on the LIO at trial.  The MJ declined to give it.
     
    I’ll say no more.

  2. stewie says:

    I find it highly unlikely that Congress intended direct skin to skin contact for this offense. 

  3. DCGoneGalt says:

    When the intentions run afoul of the words, the words win.
     
    Although, I think we pretty much covered that little debate in: http://www.caaflog.com/2015/01/07/can-touching-with-a-stethoscope-constitute-sexual-contact/
     
    That post had some great examples and featured the lyrical stylings of k fischer.  One of my all-time faves!

  4. Former DC says:

    @stewie:  I disagree.  In the best tradition of Justice Breyer, consider this hypothetical:  In an attempt to make someone look like a fool, an Airman extends a four foot long inspection rod through a window, which makes contact on the outer shell of another Airman standing with his back to the window wearing long underwear, ABU trousers, and cold-weather trousers over top of them, at a position approximately 1 inch below the beltline approximately four inches to the left of center.  The Airman is startled and jumps, causing general laughter at his reaction.  Under the Government’s theory, this would be a sexual assault under paragraph 2(A) – touching through the clothing on the buttock for humiliation.  But is it, really?  Of course not – it is a prank, pure and simple.  That is why the last sentence is there, to make it clear that the accused must have used his/her body to accomplish the touching.  Otherwise, silliness becomes criminal.  Sure – in this case, it looks like that it minimizes things, but I would suggest that there should have been another, more appropriate, charge.  For example, it would seem that Art 120c(a)(1)[Indecent viewing] would seem to apply.  After all, if the facts are as alleged (i.e., no medical reason to be on the breasts), then the elements seem to be met.  They even could have been charged together and reconciled after findings (which it appears the MJ was willing to do).  Bottom line: It is black letter law that Congress is presumed to give every word meaning, and the last sentence would be superfluous under the Government’s reading.

  5. DCGoneGalt says:

    And so it begins.  Again.

  6. k fischer says:

    DCGG,
     
    I share your misery, although the previous post was quite a run. 
     
    And, what exactly is a four-foot inspection rod, and why is an Airman wearing that much snivel gear in April?  Is he stationed at Minot?  And what kind of dipstick TC is going to make someone a sex offender for life for such a charge.  Please tell me, Former DC, that is merely a hypothetical and not an actual charge on a charge sheet.

  7. Former DC says:

    @k fischer:  Merely a hypothetical.  If you listen to the USSCT arguments, you will discovery that Justice Breyer is famous for asking such out on the edge hypos, in order to test whether a rule is effective or not.  If not, then he tends to disagree with the concept.  It makes sense.  Many, if not most, are patently ridiculous, but that’s the point:  if the rule works with silly facts, its a good rule.  But if it creates an absurd result, he tends to look for a different rule.  That was my point:  the Government’s rule won’t work.

  8. DCGoneGalt says:

    Former DC:  I think you are missing the point by using logic.  If you suspend logic and think about this from the Piven-derived “overwhelm the system” post-modern absurdist perspective of a legislative drafter then you can clearly see that the statute being ineffective and resulting in bizarre outcomes is actually one of it’s better features.

  9. John O'Connor says:

    The statute says that “[t]ouching may be accomplished by any part of the body.  It doesn’t say that touching must be accomplished with a part of the body.  I think the CCA got it right.

  10. Tami (a/k/a Princess Leia) says:

    I think the “by any part of the BODY” limits the touching to the body of the assailant, or any part of the body of another person the assailant is causing to touch the victim.  If Congress intended to include inanimate objects in a sexual contact offense, they would have said “by any THING, including but not limited to, any part of the body of the assailant….”  Or something like that.
     
    Here’s another hypothetical:  I think it’s funny if my dog shoves his nose in people’s crotches.  While walking my dog on a leash, he runs up to someone and shoves his nose in that person’s crotch, which embarrasses that person.  Have I committed a sexual assault simply because I held an “object” (a leash) that was attached to an animal who touched the person’s crotch?  Under the Government’s theory, apparently yes.
     
    You can sexually penetrate someone with any THING, including an inanimate object.  But if you want to convict on a sexual contact offense, you have to prove a touching with any “part of a BODY.”

  11. DCGoneGalt says:

    Tami, a.k.a. street cred name Princess Leia:  While the dog may be an independent actor, you are right.  You knew it had a tendency to put it’s nose in crotches and found it amusing.  Therefore, you caused an object (a dog) to touch a listed body part (penis) through the clothing for the purpose of degrading/humiliating them.  BTW, that hypo was k fischer-esque.

  12. DCGoneGalt says:

    I should have qualified my first sentence by ending it with “While the dog may be an independent actor, you are right if you believe the words of the statute are only a starting point to deciphering what the mystical intent of the Congressional shamans was in enacting Art 120”. 

  13. stewie says:

    The reverse is equally silly.  A gloved hand.  There’s an object between the hand and the person being touched.  You’d find that not fitting under the rule either? Why would it be different than a 4 foot long pole? Both involve objects between the skin of the person doing the touching and the person being touched, only a matter of length is involved.
     
    Or what if I create a nano-pole, one that is infinitesimally small, but nevertheless extends from my hand.  Different result or not?
    Of course, science geeks know that no one actually ever touches anything…our atoms repel each other before we make contact which we register as contact/touch.

  14. DCGoneGalt says:

    Touching may be accomplished by any part of the body.  The end.

  15. stewie says:

    I can accomplish a touching using my hand to push a stethoscope onto a breast (or a glove).  There, I’ve accomplished a touching using a part of my body. (In) the end.

  16. stewie says:

    To be clear, or a glove should have come after stethoscope.  Also, my last line would have been funnier if breast was replaced with end/rear/behind.
     
    My apologies all.

  17. DCGoneGalt says:

    I anxiously await the day the Gubmint takes your interpretation to its conclusion and prosecutes a man who gets a lil’ Bill Nye-style freshness going by knocking over a long line of dominoes that hits a rubber ball that rolls down a long tube then drops on the switch of a fan that blows a paper plane across the room into the boob of a woman who goes to SHARP who takes her to a televised interview with the POD People.  His hand caused contact.  He is a sex offender.  
     
    Imagine a world where this couldn’t happen.  It’s easy if you try.  You may say I’m a dreamer, but I’m not the only one.

  18. stewie says:

    so gloves is or is not? You like to go one extreme, but still haven’t answered the other.

  19. DCGoneGalt says:

    I thought we rode this bronco for more than 8 seconds in the previous post?  With gloves is a winner, gloves are clothing. It is touching through clothing with a part of the body.  Unless you have a Band-Aid on the tip of your finger to break the chain of clothing.  An atmosphere of hysteria begets stupid legislation which begets absurd results which begets injustice.  Alas, you get what you vote for.
     
     
     
     

  20. Tami (a/k/a Princess Leia) says:

    DCGG,
     
    Thank you for the compliment on the “kfischer-esque” hypo.  My dog doesn’t actually shove his nose in people’s crotches, but he does like to hump a lot.  I just wanted to take the Government’s argument to the next absurd level.
     
    Surely if Congress intended the “touching” to be the same as that in Article 128, then Congress wouldn’t have bothered to define “touching” in Article 120.  Congress could just have criminalized “touching” with the requisite intent and left “touching” undefined.  that way, it would be appropriate to look at other UCMJ articles to determine intent in defining “touching.”  But Congress chose to define “touching’ very specifically in Article 120, thereby recognizing it takes more than just your “average” touching to result in a conviction that will also get you registered as a sex offender.  I think ACCA was wrong in looking to Article 128 to divine intent for the definition of “touching” in Article 120.

  21. stewie says:

    OK rubber gloves.  I don’t think that counts as clothing.
     
    If we are talking congressional intent Tami, I don’t think Congress intended a loophole where you simply needed something not your body or “clothing” to sexually touch someone.  I don’t think they intended the result that this person has not committed any crime but an assault. 
    Of course, I get that folks are arguing it doesn’t matter their intent, it’s the plain meaning of the words…and if I thought they were as unambiguous as others did and could only be interpreted one way, I’d agree…but I don’t. 

  22. k fischer says:

    Leia/Galt
    You have brought a tear to my eye.  First, Galt described something as kfischeresque, and Tami said it was a compliment.