outset just to clarify fact issue you have a foot of a six that indicates that the perception that mr d mi was not even employed d at the facility where this woman previously was in december of eight is that correct that's correct but yet he pled guilty to sexual d assault i believe he was that he was actually convicted after  croak this court looks at the elements of the statute in the statute of conviction and i asked what is the lease culpable conduct hypothetically necessary to sustain a conviction on in goes elements a here grit is required under suggested of kinds of conduct it is contrary to accept pace in that piece it is doing with strict liability sex crimes committed against children which is certainly a more vulnerable class of victims than we have in this actually and still her st met and had her interaction on sources public property that was not affiliated with the institution dewees case and there was that was principles of agency law the b i it was wired to acknowledged and to distinguish its own precedents here it failed to acknowledge that president simply ignored it and in fact held contr offense of the c m t analysis and the b i in this case deviated from that precedent without any explanation that renders the b i as decision arbitrary and capricious now i think that that issue here all of that points towards this to the phrase violent more dangerous not refined to conduct the cause of psychological harm to for example if you just look at the structure of the of the text itself violent or dangerous is a phrase that when paired together indicates that the the attorney general had in mind physical or bodily harm not psychological harm statutory terms gather meaning from the words around them and pairing dangerous with violent again that connotes physical harm but with this statute protecting children protecting inmates protecting people under supervision isn't a psychological harm it really is one of the main concerns that the new jersey legislature and in an act in this act i agree your honor that was the motivating force for the new jersey legislature a decision to criminalize this conduct but i don't think that that should have any bearing on what the regulation means what the phrase violent or dangerous means we have not only the sort of plain text reading pointing towards bodily harm we also have the fact that this regulation has never been interpreted in this way before break the very violent or dangerous comes from that in regina is when you t statute under the regulation i should say so you can think of many many examples of crimes it could be dangerous but not violent preventable drunk driving recklessly dangerman winning from the scene of an accident those are all examples of conduct i think anyone would call dangerous conduct because of the risk of bodily injury but not violent conduct because it doesn't have that level of intentionality and is typical when people use the phrase fuck it would just be violent and dangerous which is what i understand category one there is conduct that can be dangerous but not violent i think a drunk driving offense would be a dangerous offense not a violent offense but the issue of whether psychological on could be dangerous or violent again there is just the phrase while i made the point being we just had a case we talked about severe being used to conjunction with pervasive and yet severe is different that pervasive here you have violent being used in conjunction with i think the courts interpreted to a pit as reaffirmed by the supreme court's decision kaiser requires it to look at all of all of the relevant factors right that it's not only the tax but also the contact and the history here and i think it's telling your honor the dysregulation has now been around for twenty years or so i think that in regina decided in two thousand and two that the b i or the government has still decided to a single case others in this case in which the penetration would have to be knowing and looking at the statute to respond to your specific question this statute does provide that the offender needs to act within the scope of his professional position to leave the statute itself says that the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal professional our occupational stance that part of the knowing with regard to knowing that you have disciplinary or supervisory power over a victim but if the court feels that sort of occasion to the new jersey supreme court would be helpful to the decision of this case then that is certainly a question i think the new jersey court would be in the best position to address but should the court not certify again i do think that looking at the statute and the statutes referenced to the offense having to be committed  with regard to the actors legal professional or activation of status we expect people to understand and to know what is entailed in their professional responsibilities so that would include knowing that you have responsibility in this case if you are a mental health technician over the patient in your care or her gave the employee did he have such supervisory control over her well i think that is an issue  that the core does not have jurisdiction over that is something that was decided when he was convicted it's an element of the statute so before this court we have to take the conviction as it stands and can't look behind the terms of it end being convicted and the jury who was involved in his trial found based on the instructions of the judge that he did in fact have supervisory or disciplinary control over his victim the th circuit has a case kind of criticizing that footnote and the th circuit noted that in the case that they were deciding i think it's actual penetration plus that that person is within the supervisory or disciplinary control of the person engaging in the in the sexual act correct yes and it's the nd thing that we don't necessarily know what it is seems a sober trevino would speak to that you've got to know that that person is wit hin your supervisory or disciplinary control or power where the board says we know however that our decision does not reach crimes commonly known as statutory rape these are distinct category of crimes that require the penetration of the child or similar conduct even though these offenses do not require  in line with this line of questioning in the courtroom of who said that strict liability morality offenses like indecent assault which was what was the issue in the who are cia mts because of the community consensus that such offenses reasonable way out was the conclusion that we had in the mbutu case other words if the and after mobo doesn't the big i have to respect its own precedent and we in effect are going to follow suit and defer to that in this in this case and what i can't figure out is why the b i a didn't refer to its own precedent falling back on the book doesn't really seem to help very much when the case of which who was deferring to is no longer the position where i understand that i think that again i do think that the court is doing some of its own analysis although it is alternately deferring to the b a s conclusion that would require any sort of brand x deference i think that this case is different from the situation that was addressed until the trevino in the situation that so the tribunal expressly reserved question on granted it doesn't involve a child but it doesn't doubt penetration and a vulnerable class of victims similarly to children so i don't think that the board given this footnote in silver trevino was deciding something that's contrary to silva trivino i don't think statute and would also point to new jersey case law in no case in new jersey does it seem that it would be a situation where the offender did not know in martin the situation is a juvenile in a shelter with a shelter employee  inspan the individual is actually in immigration and customs enforcement custody span also says that consent force are there or threats are relevant to the analysis but it is given the nature of the crime the only issue is intercourse we would argue that the nature of the crime involves knowing that you are in this position with regard to the victim and again that's based on the statute the conviction then couldn't make the conclusion that he goes satisfy the cmdr element that we're looking for now yes that is our argument that the conviction itself involves in every case where a conviction results there it would involve a situation where the person knew the status of himself and of his victim in this sort of power imbalance relationship we can look at the model of jury instructions as well and there are several instances within the  where they'd indicates that the state does not need to prove that the offender knew it's usually the age of the victim the model jury instructions here do not include that instruction indicating that the state would have to prove or would have to offer some evidence showing that the victim or that the offender knew the status of the victim jury instructions also directors as they're considering the relationship to consider whether the band and offered advice and guidance to the victim and question is it questions and issues outside the defendant's role as however he's employed so the jury instructions i think are directing jurors to to find that this is a relationship that both parties were aware existed it's not talking about a situation where it comes to light afterwards that this will asians have existed it is at the center of the statu so so based on that the fact that the statute does require this knowledge and the fact that as we've argued in our brief that is an implicitly nonconsensual offense we argue that it is categorically anti as the board found no jurisdiction but if we're saying what does by lindt or dangerous mean physical harm or does it can also include psychological harm that seems to be an issue of law rights or to the extent that the court has jurisdiction over that i think it would be the court would defer this is the interpreting its own regulations so the court would have quite a good deal of deference to at the regulations when they say violent or dangerous mean essentially violent or creating a risk of bodily injury in a duel which is an unpublished case of this court the court cites and th circuit  in two thousand and seven when it says the heightened standard rationally is rationally related to the immigration policy of not admitting aliens who would be a danger to society so i think that's an indication that the court order that the regulation does apply to dangerous if i see my time has expired so i think that's an indication that the regulation is applying to dangerous offenses and i think that this certainly is a dangerous offense it is in acted to protect the vulnerable victims of society so mr dean by his commission of the offense is not necessarily posing a violent risk toward anyone but he is putting in danger society's most vulnerable victims you thank you are just a couple points st on the issue of whether the statute requires the defendant to know of the victim status i heard counsel referred to the jury instruction several times people jury instructions are quite clear that they only require knowing conduct that the element of mens rea does not apply to any of the other elements in the jury charge but i also heard counsel refer to several times the circumstances and includes a section section eighty seven dollars that does have an express requirement that the defendant knew or should have known of the victim status that section deals with victims who are mentally or physically incapacitated there are new jersey legislat took an affirmative step to acquire proof the defendant knew or should have known of the victim status that's that's sort of an element that's what of language is not present mr dean statute to prove actual showing that it was not intended to be part of that said in other cases however remote and instead of focusing on hypothetical conduct i think it's helpful to focus on what was the jury charge given what the jury have to find they did rule doesn't apply and then as a port circuit said the b i a would have to provide some reason analysis why the general rule doesn't apply in those circumstances here we just don't thank you thank you to both careful very well presented arguments