In United States v. Schloff, 74 M.J. 312 (CAAF 2015), the Court of Appeals for the Armed Forces (CAAF) maintained the definitions of sexual contact in military criminal justice settings. In particular, it held sexual contact described in Article 120(g)(2) can be defined by body-to-body contact and/or object-to-body contact. Perhaps more importantly, though, it and the Army Criminal Court of Appeals found unlawful command influence (UCI) in case deliberations can be enough to call for a rehearing.
KEY DETAILS OF U.S. V. SCHLOFF
In U.S. v. Schloff, First Lieutenant Schloff, who was acting as an assistant physician at the time, was accused of sexually harassing a service member by making sexual contact between a stethoscope and her breast. A military judge ruled for Schloff’s conviction of inappropriate sexual touching and sentenced him to dismissal before deciding the specified allegation actually did not clearly state any sort offense was conducted. Due to the unusual circumstances of the alleged misconduct and the complicated scenario the ruling created, the decision was challenged and reversed by the Army Criminal Court of Appeals (CCA).
The case was next passed up to the CAAF, which agreed with the Army CCA’s reversal. However, it remanded the case to lower courts again for additional review.
The argument then arose that the case’s findings were altogether unusable due to unjust influence created by statements that claimed the Army had to harshly penalize people accused of sexual misconduct in order to boost its own social and governmental reputation. The Army CCA, which was deliberating the case for the second time due to the remand ordered by the CAAF, did find ample reason to believe the findings had been unjustly tainted by subjective, weighted statements by influential officers. In particular, it concluded “unlawful command influence” or “UCI” wrongfully skewed the deliberations away from Schloff’s favor and impartial review. It reversed Schloff’s conviction and authorized a rehearing of the case, which is now based upon circumstances that allegedly unfolded three years ago.
The three-judge panel’s explanation of its ruling argued it had been given reason to believe UCI occurred. Furthermore, it found no counterarguments to say UCI did not occur. Either the deliberating parties were unaware of the UCI and feasibly could have been unknowingly swayed by it, or they knew of the UCI and reached a decision based on it and not the actual objective evidence brought forth. As a final factor to back its decision, the Army CCA judges noted that members involved in deliberations discussed how ruling against conviction could make the Army policy “appear soft” on service members accused of serious sexual conduct crimes.
The latest decision to reverse Schloff’s conviction underlines the omnipresent and unshakable duty of the military criminal justice system, and indeed civilian criminal justice systems, to give any and all peoples accused of crimes a fair trial. It further shines a light on what has the potential to unfairly tip a trial’s proceedings away from the accepted standards of impartial justice. Indeed, it makes and defines the argument that mere words from an influential party – in this case, influential officers – is enough to corrupt trial proceedings or related deliberations.
Attorney Joseph L. Jordan has been defending the rights of Armed Forces members – from the Marines to the Air Force – for years and with impressive success. Due to his unparalleled understanding of military criminal law and the Uniform Code of Military Justice (UCMJ), he has been retained by military service members stationed at bases across the country and around the world. He is also the go-to name for service members who need legal representation during a military court martial. You can learn more about his legal services and why you should choose a civilian defense attorney for your case by calling (866) 361-4723 or contacting his law firm with an online consultation form.