consensual activity with victims up to eighteen years old and does not require sexual intercourse nor any sexual contact whatsoever second it does not require any age difference between the victim and the offender and third it does not require a special relationship trust the supreme court held in a ton of the sessions it is not sexual abuse of a minor to have consensual intercourse with the seventeen year old victim if that's the case then it is also not sexual abuse of a minor to commit acts leading up to sexual intercourse with that same seventeen year old such as proposing sexual activity or exposing oneself excuse me doe one mr c that is the supreme court specifically carved out the situation of  specifically weren't told in about those cases and when you look at it every time they talked about the relevance of the special relationship it was always in conjunction with some sexual act they said there might be a higher age of consent in cases involving a special relationship that means the age at which a minor can consent to sexual intercourse and that link between the special relationship and the sexual act is it's  explicit at the end of the opinion when they say we leave for another day whether the generic offense encompasses sexual intercourse between involving victims over the age of sixteen you know earlier north process correct your honor that statute was limited to victims under sixteen and so therefore the supreme court's hold in has nothing to say about that type of a crime and also your honour's opinion in wran custom made your honor hold something similar that the general age of consent is sixteen and your honor said that there might be your honor said that you weren't holding anything about crimes involving a special relationship and you pointed types of laws that they were working with because they told us that the laws generally provide that an older person may not engage in sexual intercourse with a younger person under a specified age known as the age of consent so the word strict liability are no where in that opinion i also pointed out that due to the structure of our statutes here the reference to knowing intent and intentionally comes along after the reference to the age of the victim so it's not entirely clear whether the statute is strict liability as to the age of the victim the government hasn't pointed to any case stayed in that this is a strict liability offense so every time the supreme court talked about a special relationship it was always in conjunction with some sexual act and that was the same me let me just make sure i'm trying to understand your are your argument as i understand you saying to judge wilkinson and from your br that qualify as a sexual abuse you're asking us to say that those were overruled by the supreme court in s q l can terah correct i mean you you know you want to i don't think we have to do that and the contact offense that includes non contact as well so why are we having this discussion if those cases are not zero because the supreme court held that there is something special about sixteen  seventeen year olds there capel they're generally capable of consent to sexual intercourse so if you look at the statutes in chris perez and also diaz a parra they also they all involved victims under sixteen so say the contrary and you cannot point to any well they held something special about victims who are sixteen or seventeen so there is some tension between the opinions and i've tried to resolve that  don't you agree that tension doesn't help we're apparently we're looking at those prior decisions just what i'm just curious why you keep coming back do you think your case depends on this idea that non contact offenses can't qualify i mean that you keep coming back to that and trying to tie it back it seems squarely foreclosed and so i'm just curious why you keep going back to it in a scenario where it seems squarely for clothes which makes me wonder i'm just curious why if this statute had been limited to people who were under sixteen that absolutely it would be squarely for clothes so i agree on that point but the supreme court held that there is something special about all the victims were included in this the sessions it's nine zero f thirty five forty two the case involved the online solicitation of a minor and they held that the supreme court decision had displaced earlier for the circuit case law i  don't think we have to overrule previous cases there are certain some ten certainly some tension for example some statements india as a virus say that this is a that it's entirely an intent focused generic offense that if someone has intent to gratify sexual desires but that's all we need i agree there is some tension between that and the supreme court decision but all of these statutes which have been ruled to be  sexual abuse of a minor i don't think i'm changing any of that i'm not changing this circuit's generic definition of sexual abuse of a minor i believe some accommodations have to be made judge wilkinson you noted that uniformity is important in this area of law and so i think it does not make sense to ignore a supreme court decision which is the only body capable of imposing uniformity on this area of law  rape and even within that subcategory victims who were sixteen seventeen years old and didn't seem to mean open the door to abuse of minors grant and so if this court rules in our favor oh have to go before an immigration judge and prove and show the facts of his crime and explain why they outweigh well the facts of his where the negative factor of his crime but you get to the point of your question if if a statue was limited to certain designated leadership positions such as scout leader teacher things like that then i would have no problem but in virginia the state the case law is very wide they've applied they said that a custodial supervisor relationship was formed because a gentleman gave someone a ride and a fifteen year old so that's a relatively tenuous relationship it can be formed it can be formed with no formality the statute doesn't require any supervisory relationship whatsoever can be anybody on the planet these things then why does that make any difference if your own are referring to i in talking about the generic federal offense there's no mention at all of a supervisory relationship and so why does this argument help because it's just wilkinson is saying the statute in virginia is narrower because even if it extends to the person who's giving somebody a ride the jr federal offense applies to everybody in the world who does the sac right anybody in the world who does it without some special statue of conviction here has a limiting element that takes it out of any possible application of the rule and asking all contain at the age of consent is sixteen years old and that limiting element of the board of  guy we know twenty two forty three involves contact as are intercourse type cases but even before that point when he describes sexual abuse he describes it two different ways and when he refers to a dictionary definition using sexual contact right and then accordingly he explains that qualify as sexual abuse just as you can bitch and must prohibit certain sexual acts right and so if we take those three things together so we take sexual contact which is justice thomas phrase sexual acts says phrase and his reference to twenty two forty three why wouldn't we take this decision as suggesting or i think it's in the context of the situation itself because it was dealing exclusively with doctors or rape which of course necessarily requires a sexual act so i think the whole decision is simply doesn't have to address that issue and is for me  twenty two forty three which is sexual contact it describes sexual action right all those phrases it does not in the specific context of the case but in trying to understand you know as it says we begin with the tax it is trying to define the phrase sexual abuse of a minor well why isn't that your point is this is dicta don't rely on it but i'm a little hesitant about taking that approach with the supreme court well i would say that the justice thomas said four times we're talking about in the context of statutory rape so it takes it out of a new application beyond that in that context the generic statutory rape then just the reference to the statue makes sense in the reference to sexual context makes sense but it took to read beyond that i think goes well beyond what the supreme court intended in town and the in the fifth circuit in the case that my colleague mentioned actually dealt with the same question there they have also had a definition of sexual abuse of a minor that included both physical and nonphysical conduct and they did they did held that up by their with respect to the age of consent before but before reaching that they said no it did not change anything with respect to what contact d there's no reason you should but are you aware of any statutory rape statute that include enticement or and use mut as the offense ask that all statutory rape that you're aware of and i'm not  the eight us c thirty five zero nine which is the eighteen u s c i'm sorry which is the rights of child child abuse victims and that one is a broad provision that includes inducement and other non physical contact a matter i suppose that the supreme court would want to approach it implicitly that would be something they would address frontally and and hit on and not judge rich judge richardson pointed out earlier if there is a tension tension may not be enough but that would be on that would be a big s of his way to repeatedly say whole narrow decision was only in the context of generic statutory rape as one example category of crimes of sexual abuse of a minor so in one sense it's a view that the riaa want one of these days i would point out that this that the states that used that were referenced that you can even situation it is not remotely you know an internet communication or pretty much in that in that same rush now why i think the example that was used in paris perez was a sleeping child just because a sleeping child is not aware that something in sexual nature occurred doesn't mean that the  perpetrator can escape the definition of sexual abuse of a minor so i think it goes along the same of those lines the mission should be broad must be brought to cover all these possible scenarios where we have a young child who's not a who's not aware of the consequences i did want to address the nature of the relationship that is required in the region because i think that the examples that my colleague has provided are really only exist in the realm of theoretical possibilities this is not realistic probability showing and to the contrary as we were arguing a brief the hutton case i stablish of the contrary that you do think that there are these to be more than simply presents with a minor for the relationship to arise there is a key question that needs to be answered and that's whether the adult exercises care and supervision care and responsibility over the miners response over the mine safety and well being and i think that once that once that is implicated then you have a relationship that is directly or indirectly four of them there would be alaska district of columbia utah and wyoming they all have predicate relationships that are very similar to the ones that are in virginia where that laskin district of authority over a child in utah it's an individual a position of authority which enables individual specks or size undue influence over the child in wyoming it's a position of authority with a catchall in the other person who by reason of his position is able to exercise significant influence over child so i consenting parties nets it seems to me very different yes john and i think absolutely and i think that's part of the reason why we were framed our brief in the way that we did is that if once the want to mention what i think is most strongest point that every other jurisdiction in the fourth circuit the criminalizes activity with victims up to age eighteen limited to sexual contact so the generic approach works by looking to the generic adjourned until tomorrow morning and save the united states and this honorable