A common question in sexual offense cases under military law is whether contact must be skin to skin to count, or whether touching over a person’s clothes is enough. Under Article 120, UCMJ, the answer is clear: touching through the clothing can constitute sexual contact. The statute defines sexual contact in terms that expressly include touching done through the clothing, so the absence of skin-to-skin contact is not a defense to the contact element. What the statute does require, in addition to the touching, is that it reach a specified part of the body and be done with one of the specified intents.
The statutory definition
Article 120, UCMJ, is codified at 10 U.S.C. section 920 and addresses rape and sexual assault generally, including the lesser offenses of abusive sexual contact and aggravated or wrongful sexual contact. The statute supplies its own definition of sexual contact, and that definition controls. Sexual contact means touching, or causing another person to touch, either directly or through the clothing, certain enumerated body parts of any person, with one of two categories of intent. The phrase either directly or through the clothing is the operative language. By its terms, the definition treats contact made over clothing as the legal equivalent of contact made on bare skin for purposes of the offense.
This resolves the core question. Because the statute itself says the touching may be accomplished directly or through the clothing, a touching that occurs over a garment can satisfy the contact element of sexual contact. The factfinder is not required to find skin-to-skin contact.
The body-part requirement
Not every touch through clothing qualifies. The touching must involve one of the body parts the statute lists. Under the definition, the enumerated parts are the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person. A touch through clothing to one of these areas can be sexual contact; a touch to an area outside the list is not sexual contact under this definition, however it occurs. The clothing makes no difference to this requirement; what matters is which part of the body the touching reaches.
The statute is also broad about how the touching is accomplished. Touching may be done with any part of the body or with an object. So a touching through clothing using a hand, another body part, or an object can all satisfy the conduct element, provided it reaches one of the enumerated areas.
The intent requirement
The element that most often determines these cases is intent. Sexual contact requires that the touching be done with one of two purposes: an intent to abuse, humiliate, harass, or degrade any person, or an intent to arouse or gratify the sexual desire of any person. The touching, whether direct or through clothing, is not sexual contact unless it is accompanied by one of these specified intents.
This intent requirement is what distinguishes criminal sexual contact from incidental, accidental, or non-sexual contact that happens to reach a covered body part. A brush against a person in a crowded space, a medical or athletic touching for a legitimate purpose, or an accidental contact lacks the required intent and is not sexual contact, even if it touches an enumerated area through clothing. Because intent is a state of mind, it is usually proven circumstantially, from the manner of the touching, the surrounding conduct and words, and the context in which it occurred.
Why the through-the-clothing language matters
The express inclusion of touching through the clothing forecloses a defense theory that might otherwise seem plausible: that no offense occurred because there was no skin-to-skin contact. Under Article 120 that argument does not work as to the contact element. The legislative choice to define sexual contact to include touching through clothing reflects a judgment that the wrong addressed by the offense, an unwanted or abusive touching of intimate areas done with a prohibited intent, is present whether or not a layer of fabric intervenes. As a result, defenses in these cases generally focus not on whether clothing was involved but on whether the touching reached an enumerated body part, whether it occurred at all, whether it was consensual where consent is relevant to the charged theory, and above all whether it was done with one of the required intents.
How the elements fit together
To establish abusive sexual contact or wrongful sexual contact under Article 120, the government must prove the touching, that it reached one of the enumerated body parts, that it was done with one of the specified intents, and the circumstances that make the particular charged offense applicable, such as the absence of consent or the use of force, depending on the theory charged. The through-the-clothing language operates within the first of these elements, confirming that the manner of contact may be over clothing. It does not relax the body-part or intent requirements, which remain fully in force.
Bottom line
Touching through clothing can constitute sexual contact under Article 120, UCMJ. The statutory definition in 10 U.S.C. section 920 expressly provides that the touching may be accomplished either directly or through the clothing, so skin-to-skin contact is not required. To be sexual contact, however, the touching must reach one of the enumerated body parts, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks, and it must be done with intent to abuse, humiliate, harass, or degrade, or to arouse or gratify sexual desire. Clothing does not defeat the offense, but the body-part and intent requirements still must be met, and intent is usually the element on which these cases turn.
Disclaimer
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