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

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

3

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

4

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

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

6

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

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

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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.
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

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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.