United States v. Schloff , 74 M.J. 312 ( 2015 )

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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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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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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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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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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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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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.
2