                       UNITED STATES, Appellee

                                    v.

             Christopher S. SCHLOFF, First Lieutenant
                       U.S. Army, Appellant

                              No. 15-0294

                       Crim. App. No. 20140708

       United States Court of Appeals for the Armed Forces

                        Argued April 28, 2015

                        Decided July 16, 2015

OHLSON, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. STUCKY, J., filed a separate
dissenting opinion, in which ERDMANN, J., joined.

                                 Counsel

For Appellant: Captain Amanda R. McNeil (argued); Lieutenant
Colonel Jonathan F. Potter and Philip D. Cave, Esq.

For Appellee: Captain Carrie L. Ward (argued); Colonel John P.
Carrell and Captain Janae M. Lepir.

For Amicus Curiae Special Victim Counsel:         Captain Vietlong T.
Nguyen.

Military Judges:    Wendy P. Daknis and Mark A. Bridges




       This opinion is subject to revision before final publication.
United States v. Schloff, No. 15-0294/AR

     Judge OHLSON delivered the opinion of the Court.

     This case is before us following the Government’s

interlocutory appeal under Article 62, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 862 (2012).

     Contrary to Appellant’s pleas, a panel sitting as a general

court-martial convicted Appellant of one specification of

abusive sexual contact by pressing a stethoscope to the breasts

of a noncommissioned officer in violation of Article 120, UCMJ.

The panel sentenced Appellant to a dismissal.       After sentencing,

the military judge, who had deferred ruling on Appellant’s

motion to dismiss, determined that the act of pressing a

stethoscope to the victim’s breasts (object-to-body contact) did

not constitute “sexual contact” as defined by Article 120(g)(2),

UCMJ, because, in his view, “sexual contact” can only occur when

one person’s body touches another person’s body (body-to-body

contact).   The military judge therefore dismissed the charge and

specification for failure to state an offense.       The Government

filed an Article 62, UCMJ, appeal with the United States Army

Court of Criminal Appeals (CCA).       The CCA determined that the

military judge had erred when he found that “sexual contact” did

not include object-to-body contact and vacated the military

judge’s ruling.

     We granted review to determine whether “sexual contact” as

defined by Article 120(g)(2), UCMJ, includes both object-to-body



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United States v. Schloff, No. 15-0294/AR

contact and body-to-body contact. 1   Based on the analysis below,

we hold that “sexual contact” may include those instances where

an accused touches a victim with an object.     We therefore affirm

the decision of the CCA.

                             BACKGROUND

       While assigned to U.S. Army Garrison-Yongsan, Republic of

Korea, Appellant served as a physician’s assistant.      The victim

in this case, SGT CP, sought medical care from Appellant for a

foot injury.    However, Appellant never examined SGT CP’s feet.

Instead, his examination involved the prolonged placement of a

stethoscope on SGT CP’s breasts during a purported lung and

heart evaluation.

       The Government charged, and the members found, that

Appellant had committed abusive sexual contact by “touching with

a stethoscope the breasts of . . . Sergeant [CP] by making a

fraudulent representation that the sexual contact served a

professional purpose.”    Appellant moved to dismiss the abusive

sexual contact specification for failure to state an offense.

The military judge concluded that the specification did not



1
    We granted review on the following 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).

United States v. Schloff, __ M.J. __ (C.A.A.F. 2015).

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United States v. Schloff, No. 15-0294/AR

state an offense because the definition of “sexual contact”

“unambiguously limits sexual contact to a touching accomplished

by some part of the accused’s body” and the specification

alleged a touching of CP’s breast solely by an object -- the

stethoscope.

                       STANDARD OF REVIEW

     This Court reviews de novo questions of statutory

interpretation and whether a specification states an offense.

United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014) (statutory

interpretation); United States v. Rauscher, 71 M.J. 225, 226

(C.A.A.F. 2012) (state an offense).

                            ANALYSIS

     The granted issue requires us to determine, as a matter of

statutory interpretation, whether the definition of “sexual

contact” under Article 120(g)(2), UCMJ, encompasses both body-

to-body contact and object-to-body contact.   “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.

Article 120(g)(2), UCMJ.


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     The parties dispute the meaning of the word “touching” as

used in this definition.   In the absence of any specific

statutory definition, we look to the ordinary meaning of the

word.    See Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 877

(2014); United States v. Schell, 72 M.J. 339, 343 n.1 (C.A.A.F.

2012).   We conclude that “touching,” as ordinarily used, means

that contact was made either by an object or by a body part. 2

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.

     This understanding of “touching” is consistent with the

statutory offense of abusive sexual contact.   See United States

v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (noting that

statutory meaning is determined by language itself, the context

in which the language is used, and the broader statutory

context).   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



2
  See Merriam-Webster Unabridged Online Dictionary,
http://unabridged.merriam-webster.com/unabridged/touch (last
visited July 13, 2015) (defining “touch” as “bring[ing] a bodily
part briefly into contact with so as to feel” and “extend[ing]
. . . an implement so as to reach, nudge, stir up, inspect,
arouse”).

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United States v. Schloff, No. 15-0294/AR

representation that the contact is necessary for a professional

purpose.   See Article 120(b)(1)(C), (d), UCMJ.    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.    We therefore

conclude that Congress did not seek to exclude object-to-body

contact in a professional setting when it determined the scope

of abusive sexual contact.

     Appellant argues, however, that the following sentence in

the definition of “sexual contact” limits the ordinary meaning

of “touching” to direct body-to-body contact:     “Touching may be

accomplished by any part of the body.”    Article 120(g)(2), UCMJ.

We disagree.   The use of “may” in this sentence indicates that

this provision has a permissive, rather than an exclusive,

meaning.   See United States v. Moss, 73 M.J. 64, 68 (C.A.A.F.

2014) (“Ordinarily, ‘may’ is a permissive rather than a

mandatory term.”).    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.



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United States v. Schloff, No. 15-0294/AR

     Appellant also seeks to support his position that “sexual

contact” is confined solely to body-to-body contact by employing

a variety of canons of statutory construction in analyzing the

provisions of Article 120(g)(2), UCMJ.   We acknowledge that

these “canons are tools designed to help courts better determine

what Congress intended, not to lead courts to interpret the law

contrary to that intent.”   Scheidler v. Nat’l Org. for Women,

Inc., 547 U.S. 9, 22 (2006).   However, “[t]hese ‘rules of thumb’

give way when ‘the words of a statute are unambiguous.’”

Sebelius v. Cloer, 133 S. Ct. 1886, 1895 (2013) (quoting

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–254

(1992)).   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.

     In sum, we hold that “sexual contact” as defined by Article

120(g)(2), UCMJ, may encompass both body-to-body contact and

object-to-body contact.   Therefore, by alleging, in relevant

part, that Appellant committed sexual contact through “touching

with a stethoscope the breasts of . . . Sergeant [CP],” the

Government adequately stated the offense of abusive sexual

contact.




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United States v. Schloff, No. 15-0294/AR

                            CONCLUSION

     We affirm the decision of the United States Army Court of

Criminal Appeals.   The record of trial in this case is returned

to the Judge Advocate General of the Army for further

proceedings consistent with this opinion.




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United States v. Schloff, No. 15-0294/AR


     STUCKY, Judge, with whom ERDMANN, Judge, joins

(dissenting):

    “Our first step in interpreting a statute is to determine

whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.    Our

inquiry must cease if the statutory language is

unambiguous . . . .”   Robinson v. Shell Oil Co., 519 U.S. 337,

340 (1997); accord Connecticut Nat’l Bank v. Germain, 503 U.S.

249, 253-54 (1992); see United States v. Morita, 74 M.J. 116,

120 (C.A.A.F. 2015).

     Whether a statutory term is unambiguous, however, does
     not turn solely on dictionary definitions of its
     component words. Rather, “[t]he plainness or
     ambiguity of statutory language is determined [not
     only] by reference to the language itself, [but as
     well by] the specific context in which that language
     is used, and the broader context of the statute as a
     whole.”

Yates v. United States, 135 S. Ct. 1074, 1081-82 (2015) (quoting

Robinson, 519 U.S. at 341).

     In both the 2006 and 2011 versions of Article 120, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 920, the definition

of the term “sexual act” immediately precedes that for “sexual

contact.”   In both versions, Congress made it clear that a

sexual act could be committed by penetration “by any part of the

body or by an object.” (Emphasis added).   See Article 120(t)(1),

UCMJ (2006 version), reprinted in Manual for Courts-Martial,
United States v. Schloff, No. 15-0294/AR


United States Punitive Articles Applicable to Sexual Offenses

Committed During the Period of 1 October 2007 Through 27 June

2012 app. 28 at A28-3 (2012 ed.); Article 120(g)(1)(B), UCMJ

(2012).   But in neither version did Congress choose to mention,

in the very next definition, that “sexual contact” could be

committed with an object.   “[W]hen ‘Congress includes particular

language in one section of a statute but omits it in another’ --

let alone in the very next provision -- this Court ‘presume[s]’

that Congress intended a difference in meaning.”   Loughrin v.

United States, 134 S. Ct. 2384, 2390 (2014) (quoting Russello v.

United States, 464 U.S. 16, 23 (1983)).    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.”

    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.




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