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.