of consent must have some degree of as the board has continually said to be a couple state of mind there must be intentional conduct that is itself wrongful or at the very least in some cases reckless not you turpitude not this the statute itself covers conduct that is not necessarily reprehensible conduct so the question to be clear is not whether the conduct that the defendant petitioners you're engaged in was reprehensible conduct up we get to go so we get to we get to look at jury instruction we get to look at the shepherd approved documents do we not to determine which crime mr and rick is was convicted of but there's no dispute between the parties which would look at jury instructions to determine what crime he was convicted of and there's no dispute that he was convicted of be one and that's the only purpose whether the syrians be won just in general what are the elements of the one the elements of b one is in here though is whether or not the statue can be applied in this court as that could be applied to situations where the realistic there has to be a realistic probability that it would be applied yes your honor in this case it was the judge specifically made that statement about so it a try terms of lack of consent you know that is that was the basis and the reason that we know that the statement were that well the statement that that's not an element of the offense as  interpretation that age based offenses is what's required that you could be convicted here based solely on the age the board adopted that interpretation this court recently sent back him in a studio for the board to reconsider decision here said two things that are important first it said it is not dispositive that the statute just not also include an explicit menswear with respect to a lack of consent element and it cites a menace india zero which this court just sent back to the board to reconsider but more than criminal negligence and this is in the fourth paragraph at the end and the board said however where as here the statute also provides that the act it's racist be done intentionally and under the circumstances set forth by the statute i e lack of consent travis said correct that it has to be established but if you look at the way that the statute is set up there's nothing to say that you can't establish by age or by status but the more important point is it also has also it hasn't been so applied that t r that all of the elements of the offenses that he was pleading guilty to were present and the offense that included a without consent element was the provision of the sexual offense statute and prosecutor specifically said as to not knowing the age of the victim that that was not an element of the found offense and then the court says so the nonconsensual piece of this is that she didn't have the age to consent so we know here that he has maintained throughout that he has maintained before the court that he did not have awareness of the fact that made in this case the reason we view it as dispositive is because the court couldn't have accepted his point if there is a mens rea are required for consent and he is saying he didn't have awareness of the fact that consent was lacking there is nothing else in the way that goes to consent well there's no he did not he maintained he did not i know there was an initial we talked about how they're pleading guilty because the fourteen euro is has a child with his best brand and so he wanted to resolve it i mean the person that he assaulted was his had a child with his best friend he was not a he maintained before the core and what he proffered in his plea called me was that he was not aware of her age but but it does not matter if client would like the court to be aware of is that he says he did not know the age of the victim yes at the time and he did tell the police that in his interview on the dr as well that would be the only addition he would like to make to the record but it doesn't ultimately even if this cour on the elements of the statute in how it's interpreted by marilyn case law and jury instructions and still the jury instructions here require the state to prove that the contact w victim those one if you look at the prosecuting documents that are comparable to what this court also relied on in martinez the prosecuting documents for example dealing with the situation in the house where the only element in the prosecuting documents reflecting lack of consent was that the person did not permanently offer consent and that's consistent with the perez where they took the jury instruction and altered it to say that you have to affirmatively agree to that conduct so silence can be as reflected in the charging documents that we submitted so you should have the affirmative proof there is a situation where the offender did not there was no request not to do it it was simply an engagement and charging documents and he said that the victim did not agree to the conduct and that doesn't reflect whether the offender intentional touching of the victim's genital anal or other intimate area for a second or abusive purpose so the only issue that's remaining here in this case is whether or not that conviction constituted a categorical crime involving moral turpitude this court has deferred to the board definition of crime involving moral turpitude as a crime that involves a vile reprehensible or base conduct and some degree of scienter and petitioners statute of conviction satisfies both fronts of that so you would agree that we can affirm only on the grounds that the agency adopted well so the agency didn't parse the elements of the statute maybe if you just answer that question first then you can go i don't know the review but yes i do know i thought the theory was that we gave the agency the authority we were guarding them at least in the past we've had them as the expert they make the factual findings but they also make a legal determination and we on this court and all of the courts have found that the board is not an expert when it comes to analyzing state law so so this court even if the board had carefully parsed the elements of the statute at hand he you're here but this court would have deferred to there in alice on that statute anyway they would they would have deferred to the definition of crime involving moral turpitude but they would have gone to the back to the elements itself in statute in order to find out whether or not that the that the statute necessarily involves reprehensible conduct and petitioner made the specific argument that they can raise here that that that lack of consent element could be proved by victims absolutely on the board to go back to the statute in order to find out if that was decision on at the time so at the time they did not go through the statute they just took their existing law which was good at the time that they made that decision and dismissed particular or rejected petitions argument on that basis beyond that for example they cited travis in tate to conclude that three three zero eight b one requires that a lack of consent of the victim be proven as an element of the crime rather than implied by virtue of the status oh that is cracks if i could also just address one thing that we've been discussing that about the the model jury instructions now prez actually does talk about the model jury instructions  as applied to specifically three dash three zero eight b one and in that case that was a case involving a fourteen year old child and her adult stepfather they did not say that the lack of consent piece could be automatically established just because she was fourteen and this person was an adult as petitioner urges that this court to understand the statute instead what what happened was that he's hinged on a journey instruction that that that the judge provided when when the jury came back to ask the question why it against the will and lack of can with and without consent meant and the judge in that case stated that lack of consent means actually  and rather than merely submitting as a result of threats or coercion and so the instruction that the court of special appeals affirmed as as a correct still required how can we now consider it without speculating on what they might have said or should have said if the question is whether or not whether or not reported there if they didn't say that well you can argue to find out what the elements of the state's statute say so if the l is there so this court has has expertise on state statutes that the board does not have expertise on so even if the board hadn't had reviewed that call where it seems like everybody including the government agree that there need not be a concern here i do think they were talking about two separate but i will say that we are supposed to look at more authoritative state sources on what the law actually modified category so the shepherd approved documents well so so what we call shepherd documents  well we look at the shepherd documents in order to establish what the fact of the conviction what he was actually convicted of so we know from the people that he was convicted of three o eight b one but from there after we separate issue and and also part of the part of the reality of the tree colloquy is that they were allowing this person to plead down from one crime that matched the elements that he actually admitted to that carried a twenty year sentence two on review anyway and so there was sort of a level of casualness in which the elements of the crime was discussed you know petitioner points to the fact that they got that that lack of consent  om but he doesn't mention the fact that the statute specifically states that the sexual conduct under this statute has to be something other than that is which is incidental to intercourse we know from from from the documents in the record that what actually happens is that he had sex or sexual intercourse with this child and there was no evidence that there was there was any touching of intimate parts that wasn't incidental to that so so we know that he pled guilty to something that didn't have interpreted that statute so what do you think are remained in the other case does to your disc case has no effect at all because i do think you're left with a conduct in resisting or the defendant's conduct in creating an atmosphere where she didn't she couldn't resist then then the existing definition of a crime involving moral turpitude as reprehensible conduct and insufficient mens rea or that would satisfy satisfy that in another itself if you find that petition or argument this cracks that the lack of consent piece could be established by the by the victim status alone  is is trying to make this statute the reason that i didn't see that it necessarily follow the as you have believe we've said that a strict liability statute would be certainly be impacted the question he her and what the hurdle the petition would have to get over is it strong to say is that this is also a strict liability statute that's correct and it's not and you can see especially in  established solely by the fact that she was a child the jury had to find that either it was against her will and she expressed that or if she submitted that it was because that she was doing so as a result of threats are coerc are if there are not any more questions and then i just want to quickly address some of the statements that of the type of conduct that petitioner contends may be prosecuted under the statute petitioner presents several hypotheticals but doesn't actually present any any actual cases where that sort of conduct was actually was actually prosecuted there aren't any cases that i could find or that petitioner cited where there was a nineteen year old who w the lips are an intimate area the only case that they say is in writing a case were where that statement is soley and what actually happened there was that the defendant came up to a teenage victim who was along with children that she was babysitting and grabbed her by the breasts mean sexually explicit comments to her put her in a headlock bit her cheek and the way that the court described put his tongue stuck his tongue down her throat so that's a far different scenario than a fifteen year old and  reason to assume that that the court would have would have found so had there not being significant aggravating factors if you compare the requirements the elements under this statute to say simple assault you can see why nonconsensual kissing has historically and and repeatedly been charged as simple assault in maryland which allows for a defense of a reasonable belief that the person was going to consent to the  to show that realistic probability an offender of course may show that the statute was so applied in his own case but he must at least point to his own case or other cases in which the state court in fact did apply the statute in the specific non generic manner which she argues so it would certainly be useful to support your argument that at some point marilyn seems to be is to say to establish this as a strict liability statute if we do not agree with you that this is a strict liability statute can you still prevail yes your honor because at a minimum the statue whether you think it's a strict liability  a negligent statute in the statute wouldn't qualify even as to recklessness the only time the board with respect to statutes like this has extended to recklessness they should have known standard is when the sexual offense statute involves children so even if your hon thinks that this is not a strict liability statute there is nothing on the face of the statute to say that negligence is insufficient and in her which we cite a page eighteen of our opening brief maryland courts have said that if there is an intent element of if there is a m to ignore those jury instructions but there's nothing in the jury instructions that require that the defendant consciously disregarded the risk of lack of consent there is nothing that required that the defendant knew that there was no consent so in the prosecuting charging documents that we submitted the victim said that they in fact did not offer consent but there is no affirmative showing a lack of consent no saying no and in it the government said the president resistance or force but in fact if you look at as the press corps recounted the instruction for second degree rape the first part which talked about reasonable fear the second sentence which talked about circumstances were personally from our safety and the courts that those two instructions only apply for rape and so you have to take those sentences away and this is up to eighty four to eighty five and fourth degree sexual offense does not require proof of force only lack of consent and when and the consent instruction that was affirmed by the maryland court in that case said consent means actually agreeing to the act rather than merely submitting as a result of threats or coercion and so you see in the charging document that if even if strict this court does not mean it as a strict liability that it is there is no reason to believe that negligence isn't sufficient and that i'm sorry when you were to me again what you were lying on your career as the language that can sit and it's actually going to be at both that language which is at page two eighty one and then at page two eighty four and two eighty five where the court recounts the second degree rape instruction and then says that the first two instructions concerned proof of the element of force and i thought that language occurred in the context of the