Three years ago, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page), a divided CAAF held that sexual contact – as defined by Article 120(g)(2) (2012) – includes both body-to-body contact and object-to-body contact.
The alleged object-to-body touching was stethoscope-to-breast contact during examinations performed by First Lieutenant (O-2) Schloff, a physicians assistant. The procedural posture of the case was unusual; Schloff was convicted of one such touching and sentenced to a dismissal, and then the military judge dismissed the specification as failing to state an offense. The Army CCA reversed and CAAF affirmed the CCA, remanding for further proceedings (ordinary Article 66 review).
On remand Schloff alleged that the findings were tainted by unlawful influence because during deliberations two of the members argued that the Army needed to appear strong on sexual assault issues.
In an unpublished opinion issued in February, a three judge panel of the Army CCA agreed, and it reversed the conviction and authorized a rehearing, concluding:
Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . . . was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process.
Allowing this UCI to hover would prejudicially impact the fairness of appellant’s court-marital.
United States v. Schloff, No. 20150724, slip op. at 4 (A Ct. Crim. App. Feb. 5, 2018) (link to slip op.).
The facts include that:
At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].
All the members had the ability to hear these statements and all members were engaged in the deliberations. The members debated these comments, with [two of the members] in disagreement with [COLs JW and AM]. The discussion regarded the general climate on sexual assault in the Army and in Korea at the time and Army policy. [LTC JV] argued that the case should be decided on the merits and that ‘the outside’ shouldn’t be brought into the deliberations, or words to that effect. The members then debated the evidence and voted on findings.
With regard to the comments about the ‘climate,’ [COL AM], the second senior member, believed the political climate ‘was put aside to deal with the facts,’ and was not further discussed. However, [LTC JV] stated the debate over the comments resulted in an ‘impasse’ implying nothing was resolved about the comments. The comments were described variously as ‘innuendo,’ ‘vague,’ ‘general,’ and as ‘the elephant in the room.’
Slip op. at 2-3 (quoting DuBay findings) (marks in original).
The CCA rejects dismissal with prejudice, reasoning:
Here, we determine the drastic remedy of dismissal with prejudice is unwarranted. Setting aside the findings and sentence and authorizing a rehearing is the appropriate remedy to eradicate the UCI. The UCI was not “so obvious or so egregious” or of a nature to adversely impact the essential
fairness and integrity of the military justice system when it was committed by two panel members in contravention of the military judge’s instructions and without government knowledge or ratification. Authorizing a rehearing affords appellant the right to receive a fair trial by an impartial panel.
Slip op. at 5.