UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                COOK, TELLITOCCI and HAIGHT
                                   Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                   First Lieutenant CHRISTOPHER S. SCHLOFF
                            United States Army, Appellee

                                    ARMY MISC 20140708

                          Headquarters, Eighth Army
         Wendy P. Daknis, Military Judge (arraignment & pretrial motions)
            Mark A. Bridges, Military Judge (pretrial motions & trial)


For Appellee: Lieutenant Colonel Jonathan F. Potter, JA; Captain Amanda R.
McNeil, JA; Mr. Philip D. Cave, Esq. (on brief).

For Appellant: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Janae M. Lepir, JA; Captain Carrie L. Ward, JA (on brief).

Amicus Curiae:

For the Special Victim Counsel: Captain Vietlong T. Nguyen, JA (on brief).


                                        16 December 2014
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                    MEMORANDUM OPINION AND ACTION ON APPEAL
                       BY THE UNITED STATES FILED PURSUANT TO
                   ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

                                         BACKGROUND

       Appellee, a physician’s assistant, was charged with, inter alia, abusive sexual
contact for “touching with a stethoscope the breasts of [] Sergeant [CP] by making a
fraudulent representation that the sexual contac t served a professional purpose,” a
violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 120
[hereinafter UCMJ]. Contrary to his plea, an officer panel found appellee guilty of
SCHLOFF—ARMY MISC 20140708

this specification and sentenced him to a dismissal. 1 Immediately thereafter, the
military judge dismissed that specification and charge for failure to state an offense
and set aside the findings of guilty and the sentence. The government, pursuant to
Rule for Courts-Martial [hereinafter R.C.M.] 908 and Article 62, UCMJ, appeals the
decision of the military judge.

         When dismissing the charge, the military judge reasoned:

               The offense of abusive sexual contact under Article 120(d)
               requires a sexual contact. The definition of sexual
               contact, provided in Article 120(g)(2), requires the
               touching of another person. Article 120(g)(2) also states
               that “touching may be accomplished by any part o f the
               body.” In so providing, [C]ongress has limited the offense
               of abusive sexual contact to a touching in which some part
               of the accused’s body touches the alleged victim. With
               regards to Specification 2 of the Charge, the specification
               alleges that the accused touched SGT CP’s breast with a
               stethoscope – not with any part of his body. The evidence
               at trial was consistent with the specification, establishing
               only that the accused touched SGT CP’s breast with a
               stethoscope.

               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.

The military judge detailed further analysis and concluded:

               The determination of whether the evidence in this case is
               legally sufficient depends upon whether the touching
               required by a sexual contact can be accomplished by only
               a part of the body or whether objects may also be used. If
               the court is correct in its interpretation that the statute
               limits a touching for sexual contact to those accomplished
               by a part of the body, then the evidence in this case would
               not be legally sufficient. If a touching can be
               accomplished with an object, then the eviden ce would be
               legally sufficient.




1
    The panel acquitted appellee of two other specifications of abusive sexual contact.


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SCHLOFF—ARMY MISC 20140708

                                    DISCUSSION

      Whether a specification states an offense is a question of law we review de
novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). We find the
touching of a person’s breasts with a stethoscope can constitute the offense of
abusive sexual contact as proscribed by Article 120(d), UCMJ. Therefore, we grant
the government appeal and will take appropriate action in our decretal paragraph.

       The issue here, as properly identified by the military judge, is the scope of
the term “touching” as found within the definition of “sexual contact” in Article
120(g)(2), UCMJ. We do not share the military judge’s narrow interpretation. The
language of Article 120, other provisions of the UCMJ, and the plain meaning of the
word all support a broader view than that of the military judge.

    First, we look at the relevant term through the discrete lens of Article 120(g),
UCMJ. The full statutory definition of “sexual contact” is :

             (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.

       The military judge initially observed “sexual contact seems to require that
touching of the body part by another party[’s] part, not by a stethoscope.”
Ultimately, the military judge decided that this conduct is limited to instances where
the “accused’s body touches the alleged victim.” Such a conclusion—that direct
body to body contact is necessary—is contradicted by the statute itself.

       The statute does not require direct contact. To the contrary, it contemplates
various levels of separation between the respective bodies of the perpetrator and the
victim. For example, a scenario involving a perpetrator who grabs another’s hand
and forces that person to sexually grope a clothed victim could satisfy all elements
of the definition of sexual contact although there are multiple interceding barriers
between the perpetrator’s body and the victim’s body. One can easily imagine
countless more examples involving indirect contact by objects such as gloves,
condoms, sex toys, and sadomasochistic devices that could surely fit under the
umbrella of “sexual contact” if all other mens rea factors were also satisfied.
Accordingly, touching a victim with a stethoscope while possessing the requisite
abusive or sexual intent can constitute sexual contact under Article 120(g), UCMJ.



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SCHLOFF—ARMY MISC 20140708

       Second, we look at the relevant term in the broader context of the entire
statutory framework to include other punitive articles of the UCMJ. As the Manual
for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 45 labels
the offenses proscribed under Article 120 as “Rape and sexual assault generally,”
comparison to another UCMJ article which the MCM also labels as “Assault” seems
natural. 2 Article 128, UCMJ, criminalizes assault and battery. In the MCM’s
explanation of Article 128 offenses, the term “touching” is used when defining
“bodily harm” as “any offensive touching of another, however slight.” MCM, pt. IV,
¶ 54.c.(1)(a). Further explanation reveals that the offensive touching may be
inflicted directly or indirectly. Various examples are set forth:

             Thus, battery can be committed by inflicting bodily injury
             on a person through striking the horse on which the person
             is mounted causing the horse to throw the person, as well
             as by striking the person directly.

             . . . It may be a battery to spit on another, push a third
             person against another, set a dog at another which bites
             the person, cut another’s clothes while the person is
             wearing them though without touching or intending to
             touch the person, shoot a person, cause a person to take
             poison, or drive an automobile into a person.

MCM, pt. IV, ¶ 54.c.(2)(b), (c).

       We find it appropriate and proper to interpret “touching” for purposes of
Article 120, UCMJ, consistently with “touching” for purposes of Article 128. See
Gustafson v. Alloyd Co., 513 U.S. 561, 568-569 (1998) (“[W]e adopt the premise
that the term should be construed, if possible, to give it a consis tent meaning
throughout the Act.”; “[T]he Act is to be interpreted as a symmetrical and coherent
regulatory scheme, one in which the operative words have a consistent meaning
throughout.”); see also United States v. Kuemmerle, 67 M.J. 141 (2009) (considering
and referring to the MCM’s explanation of the term “distribute” for purposes of drug
offenses to interpret the same term for purposes of child pornography offenses) . The
urge for consistent interpretation between Articles 120 and 128 is bolstered by the
fact the MCM’s analysis of Article 120 mentions that several terms found in that
article such as “unlawful” and “force” have been changed to align with the
interpretation of those same concepts found in Article 128. MCM, App. 23, Analysis

2
  We understand “[c]atchlines or section headings such as this are not part of a
statute. . . . and are available for interpretive purposes only if they can shed light on
some ambiguity in the text.” United States v. Lopez de Victoria, 66 M.J. 67, 73
(2008) (citing Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R ., 331 U.S. 519, 528-
29 (1947)). We find no ambiguity whatsoever in the text in question in this case.


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SCHLOFF—ARMY MISC 20140708

of Punitive Articles, ¶ 45.a at A23–15. Accordingly, just as touching can be
accomplished indirectly for purposes of battery, a touching can be accomplished
indirectly for purposes of sexual battery.

       Third, we rely upon the plain meaning of the relevant text. The sentence—
Touching may be accomplished by any part of the body—is unambiguously
permissive and not exclusive. UCMJ art. 120(g)(2). We read that provision not as
limiting proscribed behavior but as clarifying that these particular crimes can be
committed even when contact is made by or with certain body parts that are not
typically considered to be of a sexual nature. We interpret this statute in such a
manner as to focus on whether the alleged victim was touched and whether the
accused caused that touching. See generally United States v. Goins, 18 U.S.C.M.A.
395, 398, 40 C.M.R. 107, 110 (1969) (“The juristic norm is the protection of t he
bodily integrity of citizens . . . .”); United States v. Huerta, ARMY 20010097, 2005
CCA LEXIS 630 (Army Ct. Crim. App. 2005) (mem. op.) (“The focus of the offense
of indecent assault, however, is on the violation of the personal bodily integrity of
the victim . . . .”).

                                  CONCLUSION

      Here, appellee touched Sergeant CP with a stethoscope. That touching, if
done under the requisite circumstances, can constitute a sexual contact.

       The appeal of the United States pursuant to Article 62 , UCMJ, is granted.
The ruling of the military judge to set aside the findings of guilty and dismiss the
sole remaining specification and charge is vacated and the record will be returned to
the military judge for action not inconsistent with this opinion

      Senior Judge COOK and Judge TELLITOCCI concur.

                                       FOR THE COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




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