is found on page nineteen of their brief and we suggest that it rests on an unsupportive speculative assertion regarding many things not the least of which is  disputed that an individual will naturally resist and resist strongly nonconsensual attempts to penetrate his or her private or us but the truth or falsity of that statement is not really a issue what's at issue is that where by the nature of the crime the non consensual sexual assault by its nature it involves a substantial risk is not correct well and however i don't believe that it's irrelevant that the government casts it in that light because the assumptions about the nature of the crime are reflected by the government's quote you're talking about assumptions i mean would just focus in on sixteen be with us yes sixteen b speaks of substantial risk right that's correct but can the what what is it about the reasoning which i understood to be something to the effect of that you know if you're haven't physical penetration of another person against their will you dear some there's certainly some substantial risk they're going to resist what is it about that that's illogical or are sort of stretches beyond the pale in your view various specifically that the agency and the government have equated the element of non consent with resistance and in fact that is something that that is a notion that was rejected specifically in the construction of the instance that you were not speaking now about sexual assault in the abstract or immoral behavior in the abstract were speaking about a categorical analysis of a very particular statute which was passed in response to what the pennsylvania legislators oh i thought was a deficiency in the existing scheme of sexual offenses isn't this just like burglary i mean you say they've equated it with force or resistance but i understood them to be saying something to the effect of there may be not consensual and non resisting acquiescence at at first but there's a risk that at some point that can change and it will escalate the violence isn't there a you know isn't that a logical thing to suppose that somebody might start off cowed into doing nothing and yet at some point start resisting physically jordan i respectfully disagree that it's like burglary in fact it's not like burglary because burglars a specific intent crime which is for which the burglar takes the rip the risk that there is going to be perhaps the use of force that if the the employed effect parsons the court this court third circu cause could not have meant to be something other than referring to violent force and i think it's very dense i questioned it i mean and and the question is how much force keeps it within sixteen v and and not make a great well where do you how do you draw draw the line between what is the force that is necessary here is that near penetration near and rachel and we are where does words become rape if it be if it was just mere penetration most respectfully there'd be no reason for th the force required to accomplish the sexual penetration itself this would be a meaningless that you but in fact it's just the opposite that in the non forceful group of legislature responded to i face the b any force at all yeah and why does that matter why does it matter maybe pennsylvania has sixteen sexual assault statutes with various grid ations the issue isn't how many statutes they have and what they require it's does it fit within is it a felony that by its nature involves substantial risk that physical force physical force and a violent force physical force against the person or property of another may be as the test and you look at that you look at the nature of the crime why we concern ourselves with what other crimes pennsylvania may have allies books i'd suggest that as they may all of it be crimes of violence  not only this court but the united states supreme court frequently examines a place with and others that's when you need to determine whether this there are sets of facts that that match whether you have to align them here we don't have that we is a matter of public policy we want to make it criminal to have sex with somebody who who doesn't want to engage in that intimacy even if that person you know we're not going to require them to fight back in order to make that criminal how does that speak to the substantial risk point and sixteen the sixteen b i guess i'm having trouble following your logic your logic is that the the pennsylvania legislature wanted to make sure that you you didn't make women fight back in order to be able to raise a sexual assault charge ok except that that's a public policy purpose how does that undermine the language of sixteen b itself which talks in terms of stuff substantial risk that things could ask let me respond this way let's assume hypothetically following your point that there could be an escalation scenario that there could be any encounter between human beings in this fashion raises the risk or substantial risk that it escalates to the point where not just someone you has the use force to overcome consent but in fact someone has to use force to overcome resistance let's assume hypothetically that in some worsen of the cases that so there's no evidence on this record that would support a support that the risk is substantial right but we  on the act to spread the actus reus is the the assault you don't recklessly commit the assault correct it is an intent crime well the judge becker writing for the court spoke in terms of pure recklessness contrasted what had existed in before in describing parsons and said you know in parsons we went out of our way to say there's there is pure recklessness and then there's something more in the something more the recklessness that's more is what's talked about and sixteen b i can give you the specific language judges are numbered familiar with that quote and this is recklessness as it and that whole lot of cases that getting back to judgment dealt one about the substantial risk by its nature is is something that is on one hand speculative and you know esoteric the government still has the burden they still have the burden of showing by clear and convincing evidence that it would come within the ambit of something that was by its nature that's why there are that's why there is empirical evidence used in many of the substantial risk cases that to to distinguish because it's a non consensual sex with somebody you are risking physical force being involved at all and i know you say well those are all protected class well that doesn't speak to the question of risk of force well i'd have to disagree with the who are you talking about capacity to resist isn't it even more likely you have resistance if you have people who are unrelated and unimpaired not according to the pennsylvania legislature that constructed the statute specifically for non forceful nonconsensual proof that that the government has to show only by proponents of the evidence that the enhancement applies not by clear and convincing evidence and it's hard to read those cases and examine the other ones that it's in those cases and not see the stark difference between the instant case both as to men's and the elemental i mean sexual assault in pennsylvania says except as provided in rape and involuntary deviant sexual intercourse we have to give some respect to as a categorical matter to the language and assault statute well there's no mens rea in the statute itself we only know because this was a jury trial that we know that the jury was instructed that the jury would have to find that mr aguilar acted knowingly or at least recklessly with regard to the element of knock and said well i'm not worried about the i'm not consent i'm worried about the person engages in sexual intercourse or deviant sexual intercourse is that not an intentional act well the  act of penetration would be intentional that is correct the question is whether it is done at the intentional act two it separates the rape or involuntary deviant situation is that the attentional actor is bent where the burglar is bent on using whatever force is necessary to accomplish the goal whereas the reckless act and i think this is the point someone who is reckless with regard to not consent if there is resistance of any type whether verbal or physical the reckless actor is his goal is not to accomplish forcible sexual intercourse at any at under any by any means necessary it's just as likely in my view that the previously reckless actor would realize that he does not want to go any further well you you will have back burglary and you know that the supreme court's language in leak out is pretty specific they say that the they say the classic example is burglary because burglary be covered by sixty not because the offense can be committed in a generally reckless way or because someone may be injured but because by its nature burglary involves a substantial risk that the burgoo use force against a victim the computer completely cut by the very fact of going in the person's home you risk a confrontation whether it materializes or not there is substantial risk there and i guess the question is by going into another person's body i mean don't have much more so risk that at some point there's going to be an escalation isn't it inherent in the crime itself like every circuit who's looked at this has said that there will be a substantial risk that that not mere non acquiescence will turn into resistance which force will be applied i don't want to say judge jordan that no st e like this has been looked at by any of those services i mean no statute that was specifically designed to address acquaintances in this context and on unwanted sexual intercourse without the use of force  happy united states attorney general i'm just going to pick up exactly where he left off in terms of is this statute totally not comparable to other statutes and the answer is actually no if you take a look at the tenth circuit's rucks decision the difference is not so much in the statute as it is that they were evaluating the different definition under the a c c i which is slightly different but what's important is the rationale behind it in the te circuit the only difference is that they said that it's basically intentionally cause penetration without consent this is between adults not children not a parent there are separate sections for those offenses one iraq's intentionally ca penetration without consent that's basically exactly what we have here because as counsel admitted there is no dispute as to the intentions regarding the actus rights intentional penetration without consent and what the court or the te said in brooks is that the sexual assault statute requires a minimum intentional nonconsensual conduct against a person this is distinguishable from do you highs and other crimes of recklessness or negligence sexual assault endangers the health and life of the victim and this and that is also relevant to determining the violence and aggressive nature which was under the gate because that was again under the a c c i and i think that that is is the perfect statute to look at because it is the most like the statute i understand that there are differences amongst every statute the other thing i want to point out is that this is not pure recklessness as judge jordan pointed out in the tran case if you look tran was a sixteen b case and i think that it's very important look at that because what the person was charged with was reckless burning or an exploding whack lessness was in the actual title of the crime which is most of the crimes he points out pure recklessness your recklessness is called reckless endangerment reckless mental state has nothing to do with it and your honor that's our first argument definitely and just in case the court is buying some of this reckless idea i wanted to say we have to buy it based on training i mean does it don't tran and paul in our own preceden recklessness as to causing the harm because in that statute you had to intentionally intentionally start a fire or cause an explosion and thereby risk recklessness as to the act correct yeah that was that was reckless while it was reckless as the effects of what he was doing in terms of explosion and starting a fire and so what i wanted to point out is that no the reckless this was as to the victim's lack of consent where in this case but what i also want to point out about that is that he could have been knowing and he actually admitted as much which which is very important to you because if you do want to look at mens rea at all again the government's argument is that intentional penetration doesn't doesn't have any question about it it's an intentional act but if you want to consider the consent the consent in this case is not always reckless with regard to it it is knowing what reckless in tray and the crime of which he was convicted  in the burglary context the is it is there going to be involvement of people who are fighting back when someone enters their home yeah well the same kind of thing well i think that under the statutes not the and racial it's illegal well it is because it was out without consent that that that it was right it was without consent but the point is is that this is not entitled to some reckless crime so that it always involves pure recklessness as my is my point well the other thing is if you're talking about lack of consent that does not involve a mens rea a does it well i mean the knowledge that's not the issue of the the agree that the it's in the mind of the perpetrator which is not this statute is about whether the victim did or did not consent to clearly they did not i guess that this is why the government doesn't believe that you have to get into that aspect of the men's r due respect that requires is it not a degree of a mental state i mean you couldn't possibly be here arguing that if somebody says three weeks later you know what i sure wish i had had sex with you and now you're going to go to jail and be deported there's there's some aspect it's not only the victim's mindset that matters by its terms the statute itself speaks in terms well i should say by its terms by by force of pennsylvania law which i a minimum reckless mindset to the crime like this there has to be some culpable mindset on the part of the perpetrator right i mean we're not talking about a strict liability crime here right it's not a high so it's not a strict liability crime and there is some aspect of mindset required that is culpable mindset on the part of the perpetrator then when he finally realizes reckless when he finally realizes that it's no right then that he is it is not not as much and nature of this crime that he stops well it's the fact that he achieves penetration you have to achieve penetration under this status when you have about sixteen be the right but you have to achieve the penetration so somebody didn't stop before penetration so once there's penetration you have a physical contact that requires a response and the response if someone is not consenting to the penetration and again this is what makes a sexual offense very different from other types of offenses where there is an actual physical penetration that way that invites the victim to respond it's a natural response and it's just like burglary because if you can defend your house my goodness you can defend your own body and  that's why i think the burglary analogy is so compelling in this case because you it's the risk it doesn't matter whether force was actually use because you do have other statutes that clearly show ok now we know that force was use is the victim can't always show that the perpetrator was intending to use force and that's why they go for this statute the nature of the crime has to be one where there's a substantial risk the force was used right now maybe  be rape requires more force than is required it may require it but we're talking about the risk of force if that is so key here because it is the risk and that involves  the use of force in physics versus physical contact with a person not you know they weren't using they weren't accepting the fact that of course every touching you will say has force and we're not going to look at just that and you know i not telling the court to do otherwise target certainly any touch is force you have to understand the type of touch in this case is something so so in fundamental to a person's integrity their bodily integrity that this is not just any touch this is not the same as touching someone over their clothes either which the legislate the pennsylvania case on the x clear that this in has to involve penetration and but argue that this is big you know physical force against a person may be used well you know it doesn't say after resistance doesn't say anything and there you know it could be that i mean physical force just about any i know this was not decidable obote would you consider this a crime of moral turpitude well your honor you're correct court is being asked to decide you know on a statute that only the district court has decided in unpublished decisions but i do think that the court can rely on those district court decisions as well as the other decisions and some of the other circuits that were mentioned i think jordan pointed out about how just because you know there is a greater risk you resist or have force when you're not impaired when you're a child a child can be more complicit a child is going to be scared a child is going to potentially be abused by his own father someone else who he's afraid to stand up to i think that you made an excellent point that the victim who is not an impaired as asking questions yes so let me ask you a question here about simple salt statute that it requires a mens rea of recklessness rather than intent and quote it is not a crime of violence under sixteen a ok so it's a sixteen any case but the principle i guess i'm asking you is  were we laying down a marker there that says it's got to be more than reckless for it to be a crime of violence in our circuit you i think that's pretty consistent with with other i think the ninth circuit is also found with battery but that is the general idea behind a tree and so we put our position is that this is more than reckless if it's if but the the instruction to the jury was knowing or at least reckless if the jury is instructed that under pennsylvania law this crime can be committed with the state of mind reckless are we then obligated under a categor approach say well we look at the lowest possible mindset that's involved it's reckless according to pennsylvania law therefore this conviction does not qualify as a crime of violence or sixteen b that's not affecting the intentional penetration which is what is creating the risk it is the fact that there is not consent there is not consented judge randall pointed out it's not up to the perpetrator you know in his mind the fact is that there is no consent and you are overcoming it's the risk that in overcoming someone's one consent which you have to do under the statute you have to overcome someone's not consent so you can see the pennsylvania law the judge instructed the jury and correctly well judge instructed the jury that you can find the straggler guilty if you decide that he was reckless that was the instruction given and i think it was consistent with pennsylvania law which says where there's not a statement of a mens rea in the statute itself will imply knowing or at least reckless well if that's the case that that's actually the state of the law and that's the instruction that's given to the jury why isn't what  is controlling here is force the mens rea of we have to have in mind because they were convicting him as a matter of what satisfies the statute this court is not taking a state statute and putting it into the federal context of the definition and that's why it's our position that the scheme the statutory scheme under pennsylvania law is is not the determining factor it doesn't matter that he was convicted under pennsylvania law with these jury instructions which arguably under the categorical approach you're not really giving that she much weight because you're looking at the terms of the statute itself no but it does i mean if the statutory requirement has a recklessness standard by virtue of pennsylvania law then we do i mean that's part of its nature is recklessness standard so i mean i think we do have to consider that the question is whether the reckless a lot of the reckless non consent aspect overtakes or undermines the intentional perpetration aspect and maybe it doesn't you know someone just you know the person said oh you know sure you know go ahead and the person recklessly thought they said you know he said no and they you know recklessly thought they said you know and the consent was wrong and then went ahead and conduct the perpetration then later said wait a minute you know i i heard you know not not no don't convict me of this crime would that it by it's nature if it's a reckless mens rea iowa as to the consent and that's the minimal standard then is this does this  not know and that was that was reckless on their part would they would then have been it doesn't change the fact that there's a substantial risk of the use of force in having that penetration no but i'm going back to the issue of we have held that crime of violence has to have a minimal intentional not reckless mens rea correct they intended to penetrate regardless of what they they thought ok you're saying that but i'm playing devil's advocate going along with what judge perry was saying that is it a crime of violence have you committed is it a crime of violence if it's there's a reckless lack of consent such that under a case law that says crime of violence has to be intentional that would not be the case well your honor we our position is that even if there was recklessness with regard to the non consent that the elements combine together with the fact that there was distinction in training right the distinction in transit is that it was looking to the very fact that there are first of all under the statute as you know you're looking at the typical situation which could be knowing or reckless according to petitioner and according to these jury instructions we got to go to the lowest price of oil when that doesn't help you the only thing i can see that could possibly be this is the government here is the analogy again the burglary that this is which strand describes as involving something more than pure recklessness absolutely because it's invoking a potential response from someone in self defense and there and there's nothing more fundamental about that because when someone is not consenting whether it's to the intrusion of their home or the intrusion into their body they are not consenting to something and they are going to defend themselves or their property this burglary have as an element without the permission of the person came out the ninth circuit in the montas decision talking about what it means to have unlawful entry in a generic burglary and it could just mean entry it is the is actually permissive but you had the intent to commit the crime and that was an unlawful entry even though it was a consented actual physical and but how do we square it with the reckless and danger with the fire with i mean the setting the fire but because it was reckless endangerment even though the fire was intentionally set the act it still wasn't a crime of violence how do you square that with this it's not a sexual offense it's plain and simple i mean i think i think the fact that it was you know recklessly set the fires of the idea well if you were he recklessly i mean it looks like he may have intentionally or it was al not so aided it was also you could have aided someone to set the fire i think the point is that a sexual offense is fundamentally different than any other type of bird is that weird is where you get that well actually in the statute we are you familiar with the rule of leather yes how would that affect this well i understand that when there's ambiguity but our argument intentional penetration involved and the analogy to the burglary offense which is universally recognized as a sixteen the offense despite the fact that there doesn't have to be any contact at all in in the burglary definition and what it means to commit burglary it's just the risk of confrontation it's the risk of confrontation that's what you're that's what you're dealing with here and here and this is in an even more compelling than burglary is a sexual offense where there's no if there was a confrontation  it wasn't just the risk of a confrontation it was a confrontation and the thus the physical aspect to it is almost fundamental to the crime as opposed to burglary you don't actually start with a crime that involves physical contact so so it's the fact that there was already this penetration involved anybody who is not consenting to that it has a natural impulse if that's what i meant in the brief when i said it's undisputed this natural impulse because if someone touches you and you don't like you almost have a natural impulse so if someone goes so far as to penetrate you i think that it can't be disputed that you have a natural impulse and that's that's what i think that sixteen b is talking about the risk of this happening the substantial risk and it is substantial when you're in a penetration situation and the fact that there are other crimes in the pennsylvania statute that address exchange does not take away from the fact that i mean i think that's why there's a sixteen and a sixteen be sixteen b does address with sixteen a dozen address just like thirty one twenty four point one addresses what the the rape the actual rape which is the intentional use of force the threat of force and that is something that just because that  wasn't used i mean you know it's it maybe the statute was an active because the legislature thought there would be little force you or maybe it was used in this case because the victim couldn't prove the intent of the perpetrator but that doesn't matter because the perpetrators inten with respect to their consent isn't the intended to penetrate and so the it's the government's position that the court does not need to consider the mens rea of the consent but not consent i see that my judges for the opportunity and i'd like to just respond and follow up on the point of what the intent of the actor is who is rebuffed the burglar burglary is a specific intent crime that is complete upon the entry into the swelling whether or not there is someone present the lead count doesn't doesn't hinge on that point the supreme court is specific in saying the reason it's a sixteen b crime is because of the risk that you're going to confront somebody if yes if that's the that's the thing that makes it a sixteen because however it is in fact a specific intent crime and when you specifically intend to commit a crime it started while you go inside that well in the crime is complete and of course the risk is there that there could be somebody there inside that well but in this instance that you and in terms of the vagueness of sixteen just as we had some interesting comments about that in the psych case because of course where does it say someone who was willing to pull out a gun and point the trigger that's just that specific language in the big eight case it goes right to your point judge perry is it not equally likely that the previously wrecked this act or reckless act or when confronted with some resistance will just not continue how do you define the nature of this but i don't know i'm well into the extent that the actors mens rea is particularly relevant i must disagree with my colleague on this point because it's that it all goes to the reasonable ness of his perception of whether in fact there is present or not and i have to say that it's very hard in the in the factual context of a sexual  counter to distinguish between recklessness as it goes to consent and not have that recklessness as part and parcel of the visibility intentional act of penetration and then how do you address the distinction that this court drew intranet and parse and between between quote pure recklessness and that is transients of it is like putting it in quotes pure recklessness and a sort of a heightened kind of recklessness which is the recklessness sixteen b envisions that is risking some escalation to greater problems and in fact trent in fact this is i think the reverse and trend the intentional act came first right it was the intentional burning without an appreciation with only a reckless appreciation or not appreciation of what the consequences of the burning would be so that's the distinction in this case there isn't you say this is just the same c just say that this isn't an intentional physical encounter with a reckless mind set about whether the victim wanted it or not because she want me to be making these advances and penetrating her body or not i don't care i'm reckless about that i say is that the same well i guess the question is what what this encounter mean when is the crime complete the crime is complete upon an iteration the question is in penetrating which is an intentional act was there some reasonably was it reckless that was recklessness that was the defendant's perpetrator state of mind reasonable just like in the young no situation other as you have to in fact one of the pennsylvania cases and it's cited in the brief that followed the lead the fisher case which call for in light of berkowitz and in light of the sexual assaults not your call for supplemental jury instructions and specifically this situation that would have asked the jury to to consider the reasonable ness of the defendant's apprehension of whether there was consent or not right so so you really are talking about a case aren't you where to be convicted under this pennsylvania statute it takes a little bit more than misunderstanding no for you know you've got to be you just have to have a sort of a i just don't give a flying you know what you want and what you don't want i'm getting what i want and i'm getting it right now is that  of forcible compulsion but the but the thirty one twenty four point one language is specific in talking about intercourse without a complainants consent and and we read into that a recklessness and i don't know how to read recklessness except something higher than mere negligence something that involves a a i really don't you know whether you're interested or not is not something i'm all that interested in i'm proceeding heedlessly that's what reckless means doesn't however you're i would have to say that there's no other way to parse between a rapes that you again we're not talking about an abstraction here this is a rape statute and a sexual assault sure there is and you've just given it to me you just said it's either force or threat of force that is i either actually i'm forcing you or i say something or i'm doing something that imp that shows i'm going to force you whereas this statute seems to be saying there doesn't have to be those atmosphere it's that involved actual or immediately threaten force there just has to be enough for you the perpetrator to to have and by any reasonable standard beyond notice that this is very unwelcome and you're proceeding heedless of that that seems to me to be the fair reading of the statute however if a someone goes into that encounter with the intent to commit the act regardless of what the complainants responses i would submit to you that's not sexual assault that's right because you're at you're acting regardless of what the response would be and just getting finally to the the essential nature of sixteen b as has been you know perhaps apparent from this discussion it's so hard to to a right what's the essential nature of a non forceful but nonconsensual encounter and that's why i come what's your best case as authority for well i think the any of the recklessness cases from this circuit and in the post we get work with is this whole and all the cases that have come come out of the list but but let me let me point to something in tram we said there tran intentionally started a fire but of course starting a fire is not in the self a crime much less a kind of violence the second dispositive element of his crime is the reckless and dangerous of the property of another all right so we didn't say they're ok because there's another element that's reckless tried seem like it's you know i consent we didn't say ok no crime of violence we then one ought to say this element on its face involves a substantial risk of causing injury to the property of another but it does not involve a substantial risk of using force against the property of another therefore it's not a common event we didn't but we didn't none of us but we didn't stop the analysis by saying ok there's an intentional act and then a reckless mens rea or with the endangering so no kind of violence we went on to look at the next aspect which is did it in substantial risk here when we do that so we get to that issue we've we don't we don't lock it out on a mens rea a basis we get to that issue and you will argue wrongly but to my mind we can say could have been evidence that a certain degree of encounters that started out you know between acquaintances escalate to physical force whatever that or civil situations after non consent this is but it seems to me the perfect  you know subject matter for the type of the curriculum is what we're talking risk analysis here and are the courts have in the courts been fairly consistent when there have been a risk analysis it's at the burden of the government to provide one but we're not talking here well i mean we're talking about the agency deciding crime of violence for purposes of you know deportation and cetera and you know if they want to say it's the least bit of physical force imaginable  demonstrate the victims of sexual assault really don't want to be penetrated we ought to have statistical analysis or that there's a substantial risk of that there's a substantial risk and as we know in the for context you would need analysis because that those rape cases but in cases where there is no overt force violent force that still there is a risk of that when you hear this i thought i know we don't consider the facts in the case of the underlying case but you know i think