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.
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