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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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 contact 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

2

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 of 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 evidence would be 

legally sufficient.

 

1

The panel acquitted appellee of two other specifications of abusive sexual contact.
SCHLOFF—ARMY MISC 20140708

3

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.
SCHLOFF—ARMY MISC 20140708

4

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 consistent 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. 
SCHLOFF—ARMY MISC 20140708

5

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 the 

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 H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: