you know rules about the light so i won't go over there but please stay in the mike so we can we can hear you all right with that we'll call the first case united states of america versus your hawkins mr per easy in this case to become distracted by the moral issues incest just sexual contact between and clinton is but our duty as judges and lawyers over the next forty minutes of this case focusing on the legal issues is put th moral issues aside as the case of two adults on blood related and the issue in the case is whether there is a couple mental state on the permission element of the abusive sexual context that you and if so whether the evidence was sufficient to fight beyond a reasonable doubt that will hawkins lacked the permission of j yeah she was yes curiosity was mr hawkins in the military no he was not in the military the reason   re requirement on the commission element this goes back to the landmark case of morissette versus united states justice jackson's great opinion detailing the history of common law offenses and even if the statute does not itself have a mens rea or requirement on an element there's a pin court said that there is a mens rea element mens rea requirement on each element that criminalizes otherwise innocent conduct and of course here having sexual contact with somebody is innocent unless it was without that person's permission thus there has to be amends written greyer requiring mens rea or requirement on the permission element this was reaffirmed the united states versus excitement video and the supreme court said that in the context of these common law crimes common law kinds against a person or property there has to be a c m to a mens rea or requirement on those elements that criminalize otherwise absent express contrary intent by the legislature and that's important because if you look at the sexual abuse chapter in title eighteen you'll see that in the section right before twenty two forty four and twenty two forty three  when they talk about statutory rape there is no mens rea every climate on the age of the victim and why is that it's because congress in twenty two forty three d expressly wrote the government does not need to prove a men's reya with respect to the age of the victim so if they got if they got if congress is explicitly putting in when there is no mens rea requirement then we have to assume that when they don't explicitly put in their intent that they're not be a mens rea that there is one and that goes back to the this is a common law crime there you are you relying on this default principle that we read in a mens rea requirement or you also arguing that just looking at the statute on its own is a matter of interpretive the grammar of that sentence that the knowingly requirement watch to the permission issue just cost i believe that if you look at it in a pure green marion level you wouldn't case on that because it's very tortured grammatical construction to get the knowing requirement on whether the visual depictions depict a chopper not a face and then if you look at i think staples versus united states that another good case to look at because there's no mens rea at all and that statute on fire and registration and yet even though there was no mental state at all no not not even knowingly there's no knowingly at all in the machine gun registration statute but the court still said you had to know your gun had automatic firing capability in order for you to be guilty of not registering a machine gun and that's because it's innocent and a long history of that in this case if you look at the government's response i think it's instructive too because the government does not really deal in its brief with the arguments that we make that are based on the supreme court precedent the government instead relies on pattern jury instructions and they rely on  published case law to get the point that there is no menswear on the permission element but i've looked at all those unpublished cases cited by the government and none of the they deal with the more set argument that there is a mens rea on each statutory element that criminalizes otherwise innocent conduct i also think and i've already talked about twenty two forty three and how that affects this analysis but it's also i want to direct the court's attention to the government's brief page twenty one at footnote eight they also say the statute twenty four twenty three and that's a statute that deals with transporting minors for the purpose of prostitution in interstate commerce i agree there is no mens rea in that statute on the age of the child victim but that's because that statute is and that that element is not clear little izing otherwise innocent conduct it's a crime to transport anybody regardless of age for the purpose of prostitution or any type of illegal sexual activity so that you know your rules of its otherwise innocent conduct i understand there's consensual sex happening all the time but in looking at the history so what the firearms case you look at the history of firearm  fight off her attacker and things like that and you know there's been a big move towards modern modernizing rape statutes and it seems to me this is this sort of issue has been such a focus over the years of you know how does that history inform the analysis we should do but i think first of all just kind of the modernization part i don't believe that congress has really modernized the statute since the movement has happened i mean this statute was less than men and eighty six and while i'm a firm believer the modernization movement that consent is not the absence and but the presence of yes that isn't in the statute and i firmly believe or actually even that that we have to uphold the law as it's written and this statute it does take out the amendments in eighty six to take out the requirement that when you use force a victim has to be compelled by that's worse because we don't want to have to look at the victim's conduct when force comes into effect but when you that's twenty two forty one and i think most of the twenty eight j material the government is about what we do in these forced cases and i think that yeah the legislature yes the legislature made a really good decision in saying when force is years we don't have to look at the conduct of the victim because we don't want a victim to have to injure herself in order to later say it was great but i think we have to push that aside when it's not a worse case because we're not those concerns aren't there and not force cases what we have to look at here is whether and i don't believe that the amendments change the law that there has to be a mens reya on the element that transforms otherwise innocent conduct into a criminal one so for those reasons i believe that the argument still stands if especially under this statute that was passed almost thirty to turn next to if there is a mens rea every climate on the permission element as we argue then the evidence was insufficient to support the trial court's verdict and it all comes down to really the only evidence that the government has which is j a statement that she testified to i don't think you should be doing at and that's supposed to be this proof beyond a reasonable doubt that mr hawkins did not know he had permission so we have to look at that statement and the first thing i think we need to look at within that statement is the word should should connotes usually advice or recommendation for example i shouldn't eat ice cream before i go to bed every night but i do why do i do it i do it because i want to it's my it's my choice just like when somebody says you shouldn't do that that doesn't necessarily mean that you don't have their permission and i think this is also the what point in the case where the relationship between  uncle and these does come into play here should connotes a moral issue should i be having sexual relations with my uncle should i be having sexual relations with my niece and in that context you have to look at that that rapid situation i don't think it turns it exactly on the words i think it also turns on the conduct of j f k and i think it's very important that as this relation sexual contact was escalating she testifies at our other record on appeal at one sixty three that she did not object as the massage approached her genital area and then she also testified that lasted about three minutes before the actual touching begins but this is almost like foreplay and escalation if you're allowing that to happen and clearly communicating your consent to that that happening you need something more unequivocal to revoke that consent and saying right before the sexual contact ha don't think we should be doing this or i don't think you should be doing that that's not enough to commute and it might be enough in her subjective state of mind but it's not enough to communicate to mr hawkins that this escalating sexual situation is suddenly no longer wanted by somebody whose body movements have indicated the entire time that she wants to have the sexual contact it's important to also notice that there's no force at all used by mr hawkins and that's important because mr hawkins and yet there's no defensive wounds on mr hawkins there's no testimony that any of this ever happened in considering whether he knew he walked permission isn't it a relevant factor that this is incest honor i think that that dynamic should lead somebody to believe that the news doesn't want to do it but we also have this is not a child this is an adult niece she's eighteen and she's argument where that comes into some consideration but also it has to come into consideration that with this relationship with the incest with the uncle niece relationship when somebody asked a question like should that's also why it can be interpreted as a moral issue rather than a withdrawal of consent so there are some ways in which maybe a reasonable person at fifty four shouldn't think that an eighteen year old wants to have sexual contact but at the same time when the touching starts to escalate when the touching is consensual you need more than this equivocal statement to communicate it withdrawal of consent and the government needs more than that to prove beyond a reasonable doubt that he knew he did not have permission and that's a big problem it is child because we know the government and the trial court didn't even think that there had that there was an element of mens rea on the permission element so that's why the government's proof is very lacking there's not even a finding  is correct fortunately for mr hawkins appeal this was a bench trial and his plea of not guilty sufficed as a motion for directed verdict and thus preserve air on this issue despite defense counsel's failure to realize statutory interpretation based on the words and purpose of the legislative history is in this one case it's it's unpublished and it's also a district court but it's the the one case that has analyzed the legislative history what i said in that my twenty eight jail it or the house report and it concluded that congress was aware of the mens rea requirements and didn't set forth those requirements if the intent was to expand the reaches of the of the of all the offenses that they're talking about all of the constellation of the effects is not one particular fit it was intended to expand their reaches  was intended to be construed broadly and so the chap in court reasoned that the congress intent to focus on defendants conduct and not on one state of mind  lack of knowledge would result in additional focus on the victim resistance as in this case which the committee wanted to but many if not most of state contemplating the need to make that fact to terminations he did so isn't it do these cases that say we can affirm so long as a substantial evidence dealing with and those situations where the evidence really is one sided as opposed to here where there least is some argument that could be made that the comments and the other action by the victim need to be escalating sexual contact he his idea is to massage her midsection because of exercising to get rid of cramps there's no there's no escalating sexual situation the second thing is the abruptness of the contact she testified that right after she made the no permission statement that's when he immediately went to that to that what she described as the the took place over a matter of seconds that the sexual contact when she says i do i don't think you should be doing that he he doesn't stop to clarify it he goes right to woody's doing as to the purported statements that were made by the victim about a courage that those were denied by  completely could could find her credible and him not credible own there's no conflict between the victim's account and the physical evidence of it as far as the federal tear we're talking about peach two thirty one she said it was consistent with a finger pull her story was consistent with course facial hair of that expert never testified that his explanation was more likely ohm and then  for me the intent and knowledge can be affirmed from he said in the trap here he chooses the time early in the morning he chooses the place the remote lake area he chooses the exercises that she does and then he's keys covering up all of all of this because it shows and ted he says the gym was closed which is why we went there jim wasn't closed he says we couldn't go to the gym because she didn't have any shoes there there's no that's another story that was the home has credibility she immediately runs away goes to a strange person in the car sergeant and immediately says my uncle molested me when he's when he's interviewed he doesn't say this was consensual he did he lies that there was any contact and so the lot of those lies an incredible stories are indicative that he intended sexual contact and then the obvious point which has already been mention that the fifty four year old uncle would naturally know that he didn't have permission for contact with his eighteen year old niece cohen the only case and cohen is more of an assuming without the citing there's no analysis and cohen but cohen said that that any airline travel would naturally know there was no permission problem with a failure to make findings on the rules of permanent procedure provide that in a bench trial the judge can just say guilty who raised that in the in the brief to begin with and then that was my mistake twenty three years ago that was my case and the judge king in light me that that that's not necessary in but you see it i saw in the context of everything i was talking about it's it's it's a signal to stop if it's not an unambiguous signal to stop it requires further exploration it no findings of fact there were findings of fact and records at record accept number four so it does show these findings show what the trial court found right after the when the testimony was fresh in the child court's memory regarding the bond admission that occurred three months later and the trial court didn't even have the benefit of the transcript because the trial court issued its order on the bond issue on june seventeenth but the transcript wasn't completed until june twenty fourth and that's in the record set the trial court when it's making this additional finding in response to my bond motion is not in any better position than this court and i would argue worse because they don't have the transcript or the record and he's just denying a bond motion and saying no you're wrong he didn't know th you had all the testimony you heard on the test but what i'm arguing though is that he heard that testimony but it was three months later and i just i think that that needs to come of it if you read the testimony and that was a finding that he thought the testimony lead to luck and we take three months sod these cases i don't think we're going to have forgotten argument you make an opiate the podium that just you know give us a little more that's a little more creative and i just think that it's it is it is important to remember kind of make that argu i think that there's a slippery slope there that a spec not not with regard to force and that this is a good thing about this case we don't we're not talking about force at all we're talking about here whether somebody knew they had permission so if  victim's subjectively says he didn't have my permission but everything the victim did show that there was permission how could we ever argue that there wasn't that there was permission unless we look at the victim's conduct i would just think it's impossible to prove that there was permission and last you analyze what the victim said and what the victim did what did she do to indicate permission i mean it's want to get a he starts going under the panel under the pants line a little bit and there's never an objection and she's complete and she has her hands out to the side i don't know if there was any of that that's not going to be a firm or give permission but it doesn't yes i believe that if if it adds more to the side of a statement that he should have interpreted was it was equivocal then i would agree but i think what happened here is he didn't even think it was equivocal at the time because he so interpreted it as a moral question and because of that that's why he felt like he had permission to proceed so it was  he i mean i know that we that the trial court gave credibility to j s version but he testified it was more of a question and if you look at the physical evidence and i'm not going to go over all the physical evidence here but you'll see that this is much more prolonged encounter that she