CAAF decided the interlocutory Army case of United States v. Schloff, 74 M.J. 312, No. 15-0294/AR (CAAFlog case page) (link to slip op.), on Thursday, July 16, 2015. A divided court concludes that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact. CAAF affirms the decision of the Army CCA that reversed the contrary conclusion by the trial judge, and the court remands the case for further proceedings.
Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Stucky dissents, joined by Judge Erdmann.
The appellant is a physicians assistant who was charged with five specifications of abusive sexual contact in violation of Article 120(d) (2012). All five specifications alleged that the appellant committed sexual contact by touching an individual patient’s breasts with a stethoscope. Each specification involved a separate alleged victim. Three specifications were referred to trial, and Appellant was convicted of one.
At trial, the appellant asserted that the specifications failed to state an offense because touching with a stethoscope does not constitute sexual contact. The judge deferred ruling on the issue until after the members found the 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 Government appealed and the Army CCA reversed the trial judge. CAAF then grated review of 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).
In today’s 3-2 opinion, CAAF narrowly concludes that the Army court did not err, that there is no ambiguity in the statutory definition of sexual contact, and that the definition includes “those instances where an accused touches a victim with an object.” Slip op. at 3.
Judge Ohlson analysis begins with the statutory definition:
“Sexual contact” is defined as:
(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.
Slip op. at 4 (quoting Article 120(g)(2), UCMJ). Judge Ohlson’s analysis of this definition occurs in four steps.
First, Judge Ohlson considers the ordinary meaning of the term “touching,” finding that it includes contact with both an object and a body part:
We conclude that “touching,” as ordinarily used, means that contact was made either by an object or by a body part. Thus, the term “touching” in the context of Article 120(g)(2), UCMJ, means that “sexual contact” can include object-to-body contact as well as body-to-body contact.
Slip op. at 5. Next, Judge Ohlson finds that Congress did not intend to exclude object-to-body contact in this definition:
The statutory offense and its definition contain no limiting or qualifying words that would either require body-to-body contact or exclude object-to-body contact. We further note that in criminalizing abusive sexual contact, Congress included contact that occurs through the making of a fraudulent representation that the contact is necessary for a professional purpose. Real life experience indicates that “touching” for a professional purpose can occur either manually or with implements. This point is well demonstrated by the facts of the instant case where Appellant inappropriately used a stethoscope during what was supposed to be a professional medical exam.
Slip op. at 5-6 (citation omitted). Third, Judge Ohlson finds that the final sentence of the definition – that states that “touching may be accomplished by any part of the body” – does not mean that a touching may only be accomplished by any part of the body:
The use of “may” in this sentence indicates that this provision has a permissive, rather than an exclusive, meaning. Thus, the fact that “touching” may be accomplished by any part of the body does not necessarily mean that touching must be accomplished by some part of the body. Therefore, object-to-body contact is not excluded from the scope of Article 120(g)(2), UCMJ, by dint of the definitional sentence cited by Appellant.
Slip op. at 6 (citation omitted). Finally, Judge Ohlson rejects the appellant’s invocation of canons of statutory construction, finding that language of the statute is unambiguous:
Because we find no ambiguity in the statutory definition of “sexual contact,” we find no basis to apply the canons proffered by Appellant in determining the meaning of “touching” in this context.
Slip op. at 7.
Judge Stucky’s dissent makes two points.
First, Judge Stucky notes that in both the current and the prior (2006) versions of Article 120, Congress defined a sexual act as explicitly including penetration by an object, but Congress did not include similar language in the adjacent definition of sexual contact:
[I]n neither version [of Article 120] did Congress choose to mention, in the very next definition, that “sexual contact” could be committed with an object. When Congress includes particular language in one section of a statute but omits it in another — let alone in the very next provision — this Court presumes that Congress intended a difference in meaning. After considering the statute as a whole, I can find nothing to overcome this presumption and therefore conclude that Congress did not mean to include contact with an object as “sexual contact.”
Diss. op. at 2 (marks and citations omitted). Then, Judge Stucky rejects the majority’s consideration of “real life experience,” with a jab:
Today, the majority abjures analyzing the specific and broader context in which that language defining “sexual contact” is used in the statute by adopting “[r]eal life experience” as the touchstone for statutory interpretation. United States v. Schloff, __ M.J. __ (6) (C.A.A.F. 2015). Therefore, I respectfully dissent.
Diss. op. at 2.
During the oral argument of this case, the appellant’s counsel asserted that if the definition of sexual contact includes touching with an object, and if a bully throws a dodgeball at a person with the intent to abuse, humiliate, or degrade that person, and the dodgeball hits the other person in the buttocks, then the bully could be charged with a sexual offense based on the fact that Article 120(g)(2)(B) includes:
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
The majority’s conclusion that a sexual contact touching may be accomplished with an object effectively confirms that the Government could charge such a dodgeball bully with a sexual offense, and it firmly establishes that Article 120 is an incredibly (and perhaps dangerously) broad criminal statute.
Case Links:
• ACCA opinion
• Blog post: Analysis of ACCA’s opinion
• Appellant’s brief
• Government’s brief
• Amicus brief (SVC)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis