thank you honor and may please the court rd degree sexual assault under connecticut law is undoubtedly a grave offense one that often involves violence as we understand that term broadly in our day to day usage but it is not categorically a crime of violence as that particular term of art is construed has been construed by the supreme court and cases arising under eighteen u s c section sixteen a those cases make clear and the government here concede the term crime of violence contemplates a category of violent active crimes and then order to satisfy that definition a state offense must categorically necessarily include as an element the use or threatened use of physical force which the court has defined to mean violent force force capable of causing physical pain or injury to another person or at a minimum as the court held last year last t necessary to overcome the victim's physical resistance rd degree sexual assault in connecticut simply does not require that degree of force we know this because the defense used to require a degree of force like that it used to require the force necessary to overcome ernest resistance but the state legislature amended the statute in one thousand nine hundred and five or rather repealed and replaced it to eliminate that requirement i'm having difficulty seeing why the removal part of the removal of the active resistance requirement in a lot of statutes across the country and around this time means that there is no force element in the statute i mean the statute by its terms correct me if i'm misunderstanding that you have to compel another person to submit to sexual contact by the use of force against such other person or a rd person which reasonably causes such other person to fear physical injury i mean why would they should components in act why would the offense can be satisfied by either the use of force and there are cases showing that that use of force need not be physical at all gagnon the appellate court decision that came right after huffer and is the one involving a police officer who forced a woman well there was no physical contact with exactly you think well but it was force rather physical force that doesn't require touching but there wasn't any threat of physical force either now there was force clearly that's what the decision states and that's our position there was force there was a a non physical force a compulsion that she needs to pull over because this man is pretending to believe be a police officer and he's in a position of authority over and there may well be cases where   rd degree sexual assault conviction could be sustained if an employer compels his subordinate to submit to six sexual contact and that is all to the good janja and probably case for the other side guess that that would seem to be the minimum requirement for under that statute what do you do again it's a court of appeals case it's not the supreme court we is required under that statute no matter what the words of the statute i think it's as your honor stated it's the minimum requirement under the statute that there be some compulsion a forcible compulsion but not a physical compulsion and that's how the court distinguished offered now important understand those are two cases in the one thousand nine hundred and eighty s not too long after the statute was amended prior to that the idea of physical restraint and helplessness was common in the common law sexual assault so the difference was  the helplessness of the victim in hartford was achieved legally she was legally restrained and it was illegal and gang and the point i want to get across is the legislature i think we can assume from this moment wants that to be rd degree sexual assault in kenya and it does not want that to be th degree sexual assault that is a very grave offense it simply did not require active violent physical force that or threat the road there's no threat of physical force and in other cases so and  may be a threat but that's not a threat of physical force but this is not the government hasn't suggested that this is divisible statute between the use of force or the threat of force so we have to look at the least probable act under the statute and it's clear that it doesn't require physical force gagnon says that pretty clearly that's a case that the supreme court denied sort of occasion and it's thirty years old it's been cited i think over fifty times as of this morning so it's not one that this court can really reverse i'm afraid and again this is all to the good i think ok the legislature made a conscious decision not to require the degree of force that is required under the federal generic definition it wants you to be able to convict the defendant for sexually assaulting a victim even if she doesn't resist or he even force is not sufficient to overcome a victim's resistance and it would be problematic i think for this court and the collateral immigration proceeding to say oh no it does require that degree of physical force it requires more than the legislature has said it requires more than connecticut's state courts have held that i think would be would pose a problem and it would give defendants in these actions more grounds to defend against these prosecutions so i think the consequences of a decision in our favor are not so grave as a con threat a physical force hanging in the air that would be sad satisfaction off to satisfy the know what the connecticut cases make clear is that the force of the contact is not the force or part of a statute there has to be for  issues here that the parties disagree over the st is the generic definition of a crime of violence and under this court's precedent as well as stoke playing i don't think that the court has conceded that the that we agree on the same terms crime of violence must be a violent act of crime as the supreme court discussed in leo call but also in stoke wing it must be injust or improper force and as the court cautioned in stoke lang that the parties cannot cherry pick adjectives and order to define what a crime of violence mean it must be unjust improper force that overcomes the resistance this court has considered that slight force in psychs in thrower recently decided that the force does not have the likelihood does not need a likelihood or probability that it will cause physical pain it just must be unjust or improper do you agree with you have the connecticut law you have to separate out the sexual assault from the force that used to get you in the position to commit the sexual course it's two different things right yes that's that so that would be the nd point i believe that we disagree over is what the connecticut use of force law requires and i would just like t point the court to the missouri decision from the connecticut i believe appellate court the cite is six o two a nd twenty nine and in that case the connecticut court reference to the legislative history and said that it was changed to that submission does not pardon the use of force is the use of force that's required under the statute it's not the amount of submission or the amount of resistance that was put forth by the victim use of force to get the person and the position to be means but the use of force in that case was his pretending to be a police officer or i forget whether and pulling her car over that that was the use of force and i think it was a threat and use of force case it's not a use of force case if you look at what the court decided again and have it in front of me it talks about how the individual put on his lights and pulled the vehicle over rendering her illegally immobile he stood in front of her door in front of the window and told her that he would introduce himself as an officer he informed her that she was driving a car with unregistered plates and that he would forget about the whole thing if she went bed with him he then reached into the car and grabbed her breasts and assaulted her ok that's the assault that's the assault that's not the use of physical court for direct they use that to threaten force if you want to threaten use of force if you say it's not use of force case so what's the threat and use of force to get her in the position to be assaulted he was standing in front of her door unable for her to leave he was an officer that pulled her over his physical stature is larger than hers if you look at requires for the use of force to be met either use or threatened either use or threatened use of violence physical coercion or superior physical strength and that's the rule out of her that all one of those three things has to be met in order to get a conviction under the statute so it's either superior physical strength physical coercion meaning standing in front of someone pushing someone some of the other physical coercion cases are forcibly removing a victim's underwear or forcing someone on a bench and straddling the victim obviously violence includes actual violence and this other is a fury or physical strength cases include individuals with much larger statue like flex in a belt or compelling someone to go into is to submit to the assault or to submit to the violence one of the way the other there's force involved so i would suggest again is a threat of force case and i think that it does meet the standard it may be it may be the least will conduct under the standard because it was somebody who just stood in front of a car door and precluded that person from leaving but under the circumstances as the victim how the jury could reasonably find that this victim felt compelled to submit to the conduct and i'm happy to answer other questions about either sixteen a or sixty or the connecticut statute but i do think that the important distinction here in terms of the connecticut statute is that there has to be either an implied use of or threatened use of force or an actual use of force and while the the threatened use of force may be implied or explicit car off the road thereby rendering her physically healthy helpless we conclude that the defendant's conduct constituted physical coercion but it did and there was no physical contact with the victim so this case remains one where the force requirement under their degree sexual assault need not be satisfied by any kind of physical force let alone violent physical force let alone the physical force required to overcome the victim's resistance or about throw it's not a threat case but there was no threat can accomplish this if you can it be convicted of this crime without using or threatening force of that degree then you're outside the scope of the federal definition this crime the state offense sweeps in more conduct  reply brief polow so was where there was both a rd and th degree assault conviction it was a double jeopardy challenge the only difference between the conduct was that the defendant gave the victim ecstasy and the court held that the delivery of the x the satisfied the force element and that's why there was no blocker problem between rd and th degree and that gets to this dangerous instrument issue which you can use you can compel sexual contact by giving someone drugs without any physical contact and there's a number of cases addressing the sexual contact element that also show out to emma's want to have in mind where there's no force at all it's just the touching and again that under state law doesn't qualify and the last thing if i may i just want to note is that this would not holding in our favor in this case wouldn't depart from any other circuits as far as i'm aware and fact if you look at united states versus davis an th circuit decision that state seventy five f three thousand five hundred and ninety two the court held that sexual abuse by forcible compulsion under alabama law it's not categorically a crime of violence these used to be under sixteen b they were crimes of violence that's no longer an option under sixteen a i'm not aware of any court that has held that an offense like this is categorically a crime of violence thank you very much thank you both will reserve decision in this case