UNITED STATES of America, Plaintiff-Appellant, v. Christopher JAMES, Defendant-Appellee.
No. 13-10543.
United States Court of Appeals, Ninth Circuit.
January 14, 2016.
Argued and Submitted Aug. 11, 2015.
Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender, Phoenix, AZ, for Defendant-Appellee.
Opinion by Judge TALLMAN; Dissent by Judge KOZINSKI.
OPINION
TALLMAN, Circuit Judge:
Federal law lacks a generic statute addressing nonconsensual rape, as every state has. Instead,
The district court granted a motion for acquittal after the jury rendered a guilty verdict against Christopher James on two counts of sexual abuse of a severely disabled woman under
We hold that the district court erred in granting that acquittal, although we acknowledge that determining what constitutes physical incapacity under
I
T.C.1 is severely disabled by cerebral palsy. Although T.C. was twenty-eight years old at the time of the sexual assault, she cannot care for herself and needs assistance from others with all of the major activities of daily living, including eating, grooming, and using the bathroom. She cannot walk without assistance. She must be lifted in аnd out of her wheelchair, into which she is fastened with a seatbelt in order to keep her from falling out when her limbs spasm uncontrollably. When T.C. is in the wheelchair, she can only use her feet to move around. When not in the wheelchair, she “can scoot herself kind of Army style on the floor, or she sits with her legs outward and she‘ll hop.” She has no use of her hands and is incapable of lifting heavy objects.
It is difficult even for those who know T.C. to communicate with her or to understand her attempts at speech. T.C.‘s tongue is enlarged and her voice box is thicker than normal, thus making her
On August 3, 2011, a family member caught James having sex with T.C. on the porch of her grandparents’ home, covered with only a blanket. The incident occurred inside the boundaries of the Fort Apache Reservation within Indian Country. Because James was adopted by the victim‘s grandparents—who also raised T.C. following the death of her mother during childbirth—T.C. is legally James’ niece. The aunt who discovered James lying on top of T.C. called for an ambulance, which rushed T.C. to the nearest clinic for a medical examination. A sexual assault nurse examiner conducted a vaginal examination and observed that T.C. had torn tissue and was bleeding from a laceration. The nurse testified that T.C. was unresponsive to her efforts at the clinic to obtain a medical or event history.
James admitted to investigators that he had sex with T.C. During interviews with an agent from the Bureau of Indian Affairs (“BIA“), James confessed to removing T.C. from her wheelchair and lifting her onto a bed, after which he took off her pants and underpants, pulled down his pants, and penetrated her vaginally with his digit and penis. James also said he had been drinking, hе was “ashamed,” and it was not the victim‘s fault. In a written statement—introduced at trial—James wrote: “I‘m ashamed and confusted [sic]. I don‘t know what made me do what I did.... I will not forgive me [sic] but I do ask God for forgiveness. [T.C.] is not to bleame [sic] either. She was incent [sic] of all things.” When a BIA agent questioned James about the statement, James responded: “It was intercourse, but it wasn‘t like sex, you know? ... [W]ith her, she‘s just laying there but, I mean, you are inside her and you are moving up and down.” James also informed the BIA agent that T.C. cannot talk, only “ma[ke] noises.”
Because the sexual assault took place on the Fort Apache Indian Reservation, James could be indicted only by the federal government since the state of Arizona has no jurisdiction there. See United States v. Mitchell, 502 F.3d 931, 946 (9th Cir.2007) (noting that enacted statutes have given the federal government limited jurisdiction over certain major crimes committed on Native American land); cf.
A three-day jury trial began on July 30, 2013. The investigating BIA agent testified that he was unable to ask T.C. about
II
We review de novo a district court‘s ruling on a motion for acquittal. United States v. Sanchez, 639 F.3d 1201, 1203 (9th Cir.2011). We review evidence presented against the defendant in the light most favorable to the Government to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir.2009) (internal quotation omitted).
III
Congress promulgated
Whoever, in the special maritime and territorial jurisdiction of the United States3 ... knowingly—
(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that other person is—
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.
This case turns on the breadth of the “physically incapable” standard in
Due to the lack of congressional direction and germane federal precedent, the district court opted to draw a parallel between the federal statute‘s “physically incapable” language and the “physically helpless” language employed by some states in their rape schemes—holding essentially that T.C. would need to be totally physically helpless in order for the jury to convict James under
But relying on state law as the district court did is problematic. First, the Supreme Court has held that “in the absence of a plain indication of an intent to incorporate diverse state laws into a federal criminal statute, the meaning of the federal statute should not be dependent on state law.” United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); see also Taylor v. United States, 495 U.S. 575, 591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We find this guidance particularly applicable here. State law statutory schemes are very different from federal law because state law punishes the broad category of non-consensual rape—but federal law has no such counterpart. Noticeably absent from
Second, the district court followed the line of state case law that construes the
However, the term “physically helpless” has various interpretations in other states. See, e.g., Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996) (rejected by the majority in Fourtin). Dabney found evidence sufficient to find the victim physically helpless where she was “blind, mentally impaired, partially handicapped, and unable to speak,” and “could only grunt, raise her hand, and shake her head from side to side.” Id. at 361-62. “Granted, the victim was not completely physically incapacitated, but this is not what the statute requires; it only requires physical helplessness, not total incapacity.” Id. at 362. As another example, Iowa punishes sex with an individual who is “mentally incapacitated, physically incapacitated, or physically helpless.”
Nothing compels us to adopt Connecticut and New York‘s narrow formulation of “physically helpless” over the broader approach taken by other states. The federal statute itself does not use the term “physically helpless” and the district court erred in defining “physically incapable” so narrowly. “Physically helpless” suggests a lack of physical ability to do anything while “physically incapable” is a term that is more susceptible to application to various factual situations that can come before a jury. A victim could have a physical incapacity to decline participation or be incapable of communicating unwillingness to engage in a sexual act and still not be physically helpless.
We find our support in differentiating the broader “physically incapable” standard from the more narrow “physically helpless” standard relied upon by the district court when we look to federal applications of
These federal cases support our conclusion by indicating that a defendant may be convicted under
Most compellingly, “whether a victim is physically helpless at any given moment is largely a question of fact for the jury to decide.” Fourtin, 307 Conn. 186, 52 A.3d at 695 (Norcott, Eveleigh, & Harper, JJ., dissenting) (quoting State v. Stevens, 311 Mont. 52, 53, 53 P.3d 356, 361 (2002)); see also State v. Tapia, 751 N.W.2d 405, 407 (Iowa Ct.App.2008) (same); State v. Rush, 278 N.J.Super. 44, 650 A.2d 373, 374 (App.Div.1994) (“It is thus for the jury and not the judge to determine whether, as a matter of fact, a victim‘s condition meets the physically helpless standard.“). The district court wisely deferred making a final decision until after the jury had spoken. It erred on this record by not abiding by its verdict.
IV
Now that we have settled the proper legal standard, applying the facts of this case is straightforward. We hold that the Government proffered sufficient evidence—when viewed in the light most favorable to it—to allow a rational juror to conclude beyond a reasonable doubt that T.C. was physicаlly incapable of declining participation in, or communicating her unwillingness to engage in, a sexual act with James. See Jackson, 443 U.S. at 320, 99 S.Ct. 2781.
The Government presented evidence that witnesses—even those who knew her well—could not always understand T.C. Cf. Fourtin, 307 Conn. 186, 52 A.3d at 680 (reasoning that “all the witnesses testified that, sometimes with the aid of a communication board and at other times, with appropriate gestures, the [victim] was able to make herself understood.” (alterations in original)). Although James was T.C.‘s uncle by adoption, he had never resided with her, and the evidence demonstrated they never spent any appreciable time together before James sexually assaulted her. Nothing indicates he knew her well enough to understand her or could otherwise understand her attempts at communication.
Furthermore, while T.C. had some minimal means of communicating, the evidence demonstrated that she had difficulty communicating even with her longtime caregivers, close family members, the emergency room nurse, and investigators. During the physical examination after the attack, T.C. could not communicate with the treating nurse—even through yes or no questions—nor did she seem to understand the nurse‘s inquiries or directives. James himself admitted that she was like a limp doll who “just lay[] there” during his assault. Thus, the facts presented at trial are sufficient to permit a juror to find that T.C.‘s cerebral palsy was sufficiently severe that it rendered her incapable of being understood by others, and thereby incapable of communicating to James her unwillingness to participate in the sexual act.
The evidence also suffices to show that T.C. was physically incapable of declining participation in a sexual act with James. T.C. does not have use of her arms, cannot lift heavy objects, and would not be capable of pushing someone off who was lying on top of her. She is unable to feed or groom herself. She cannot walk nor get into or out of her wheelchair without assistance. James had to physically lift her from the wheelchair to the bed, and then he had to disrobe the victim before penetration. The facts presented at trial would permit a rational juror to find that T.C.‘s cerebral palsy rendered her physi-
V
We emphasize that our holding does not preclude someone suffering from a physical disability from ever having consensual sexual intercourse. Someone may suffer from a physical disability and retain sufficient mental functional capacity to consent. It is one thing to impose per se legal violations with respect to minors and those who cannot comprehend the nature of the act under
The legislative history of
We hold that—to the extent a defendant raises a factual dispute regarding consent as a defense under
ticipation or communicate her unwillingness to engage in the alleged sexual abuse. See, e.g., United States v. Fasthorse, 639 F.3d 1182, 1185 (9th Cir.2011) (“Although Fasthorse testified that the victim ‘wasn‘t asleep’ and consented to the sexual act, the jury rejected his version of events.“). Here, James never raised consent as a defense and, in fact, concеded “it wasn‘t like sex” because “she‘s just laying there [while] you are inside her and you are moving up and down.” The district court erred by taking the question out of the jury‘s domain after it had rendered a guilty verdict against James, and we now vacate that ruling and remand to reinstate the verdict.
VI
The law in its majesty protects from assault those who are too weak and feeble to protect themselves. No society worthy of being called civilized may do any less. We reverse, vacate the judgment of acquittal, order reinstatement of the jury verdict, and direct the district court to proceed to sentencing.
REVERSED, VACATED, and REMANDED with instructions.
KOZINSKI, Circuit Judge, dissenting:
I am puzzled and confused by Part III of the opinion. My colleagues work hard to prove that the district court read
Here‘s what the statute says:
Whoever ... knowingly ... engages in a sexual act with another person if that other person is ... physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act ... shall be fined under this title and imprisoned for any term of years or for life.
I also disagree with the methodology employed by the majority in seeking to pump up the statute beyond its ordinary meaning. The majority purports to find the statute crystal clear, maj. at 679 n. 5, but then decides it must pick between broader and narrower interpretations of the statutory language. It opts for the broader one because “it will allow more cases to be submitted to the good judgment of a jury.” Id. at 682. This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work. People must have fair notice of what is legal and what is illegal, which is why we apply the rule of lenity when confronted with an ambiguous criminal statute. See Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). The function of the jury is to find facts and determine guilt by applying known legal standards, not to make up the law as it goes along. The majority‘s “let the jury decide what‘s illegal” approach is unwise and, most likely, unconstitutional. I emphatically disapprove of it.
The majority finds yet another reason for giving section 2242(2)(B) a capacious interpretation: According to the majority, we must read
In any event, all of these interpretive calisthenics are beside the point. As I said at the outset, the statute speaks for itself: A jury can convict only if it has proof that the victim could not physically express her lack of consent to the defendant‘s sexual advances. Because the government chose to prosecute James under
It‘s quite clear that the district judge understood and applied this standard. I can do no better than to quote the district judge‘s own review of the evidence:
In her opening statement, the government‘s counsel said, “[The victim] communicates primarily nonverbally with gestures and sounds. She can say yes or no.” The government‘s witnesses included Special [Agent] Adrian Jim, Patricia Shands, Mark Quay, and Jodie Quay.
Special Agent Adrian Jim testified that when he first met with the victim, she was crying and “[i]t didn‘t seem like she wanted to talk to us.” He testified that he interviewed the victim on a second visit, and the video recording of the second interview was played for the jury. The video showed the victim nodding her head in agreement and shaking her head for disagreement. Special Agent Jim testified that during the second interview the victim responded to his questions by nodding her head for yes and shaking her head for no.
Patricia Shands, the victim‘s direct caregiver, testified that part of the victim‘s school program involv[ed] practicing language skills, such as “sounding out our ABCs and her vowels,” working on the alphabet, and using flash cards with pictures to practice the sounds of letters. Ms. Shands testified that when the victim gets out of her wheelchair, she chooses where she wants to sit. Ms. Shands also testified that the victim requires assistance to use the toilet, but “she‘ll moan when she‘s done” so that a caregiver can help her get back to her wheelchair. Ms. Shands testified that the victim can talk, but sometimes she has difficulty understanding the victim, and it is easier for the victim to show you something than to tell you. She also testified that the victim has many friends at school, and she can express anger and dislike for someone. Ms. Shands testified that the victim communicates by nodding or shaking her head and making grunting sounds. She further testified that the victim can communicate her needs and desires, such as when she needs to go to the bathroom, when she is finished using the toilet, when she wants to go play on the computer, when she wants to play games, when she wants to do something, and when she does not want to do something.
Mark Quay, the victim‘s uncle, testified that the victim understands both English and Apachе and responds to questions by nodding her head for yes and shaking her head for no. He testified that she does not talk much, but she can talk. Mr. Quay testified that sometimes she expresses that she loves him by hugging him. He said that when he comes to her house, she always points at him and says “Mark” or “uncle.” He also testified that if you change the television channel when the victim does not want you to, she gets mad, growls, and gives you a mean look. Mr. Quay further explained that when the victim gives you a mean look it looks like the mean look that others give.
Jodi Quay, the victim‘s aunt, testified that on August 3, 2011, she saw the Defendant and the victim talking and laughing together, communicating. Ms. Quay also testified that she can communicate with the victim, and the victim nods her head for yes and shakes her head for no.
At the time the Court reserved ruling on Defendant‘s Rule 29 motion, the evidence showed that the victim was physically able to communicate her unwillingness to engage in a sexual act and physically able to decline participation in a sexual act by head movements and vocalizations such as growling. As in [State v. Fourtin, 307 Conn. 186, 52 A.3d 674 (2012)] and [People v. Huurre, 193 A.D.2d 305, 603 N.Y.S.2d 179 (1993)], the government may have been able to present evidence that the victim was “incapable of appraising the nature of the conduct“—such as evidence of mental limitations, developmental delay, and lack of knowledge about sex—sufficient to support a conviction under
§ 2242(2)(A) . But the government did not charge Defendant under§ 2242(2)(A) . The victim‘s mental limitations likely affected her ability to know what she should and should not be unwilling to do, but§ 2242(2)(B) requires evidence that the victim is physically incapable of expressing unwillingness or declining participation. Thе evidence presented by the government at trial was not sufficient for a jury to reasonably find that the victim was “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.”
United States v. James, No. CR-11-08206-PCT-NVW, 2013 WL 5423979, at *5-*6 (D.Ariz. Sept. 26, 2013) (emphasis added) (citations omitted).
As the district court recognized, the government simply did not introduce the type of evidence that would allow “any rational trier of fact” to conclude that T.C.‘s physical limitations rendered her incapable of declining participation or communicating unwillingness. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Significantly, the government never elicited testimony from a witness who knew T.C. that she was physically incapable of expressing her refusal or disagreement. The fact that T.C. was unresponsive during her medical examination, see maj. at 682-83, is wholly irrelevant. See State v. Fourtin, 307 Conn. 186, 52 A.3d 674, 689-90 (2012) (concluding that a viсtim‘s failure to communicate with physicians “simply is not probative of whether the victim was unable to communicate to the defendant that his sexual advances were unwelcome“). The nurse‘s testimony that T.C. “could not say yes or no” to simple questions tells us nothing about whether T.C. was physically incapable of communicating. All the nurse observed was that T.C. did not respond.
It‘s possible that T.C. didn‘t comprehend the situation, either when she was with James or with the nurse. See maj. at 682-83. But because the government didn‘t charge James under
The majority ultimately lists a number of facts that are pretty much beside the point and thus cannot overcome the solid wall of evidence that T.C. was capable of communicating her lack of consent when she was so inclined. For example, the majority‘s reliance on the fact that T.C.‘s caretaker and guardians can‘t always understand her specific needs, maj. at 676-77, 682, is not the least bit helpful. Evidence
The majority also notes that “James had to physically lift [T.C.] from the wheelchair to the bed, and then he had to disrobe [her].” Maj. at 682. But this only proves that T.C. was unable to get out of her wheelchair or disrobe herself—which everyone agrees was the case. It has nothing to do with her ability to communicate, verbally or nonverbally. Even if T.C. had affirmatively consented, James would still have had to lift and disrobe her in order to consummate the act.
Finally, the fact that James said T.C. was “just laying there” during intercourse, see id., doesn‘t show that she couldn‘t say “no.” By characterizing the sexual act as “unwanted,” id., the majority engages in circular logic: If T.C. was physically capable of declining participation, she would have done so; therefore her failure to resist must mean she couldn‘t. This begs the question because we don‘t know that the sexual act was “unwanted.” The fact that the government doesn‘t have to prove nonconsent under section 2242(2)(B) doesn‘t make lack of evidence of affirmative consent dispositive.
The majority claims that its holding “does not preclude someone suffering from a physical disability from ever having consensual sexual intercourse.” Maj. at 683. I‘m not so sure. James will go to prison, likely for many years, because he had sex with someone whose physical handicap impaired her ability to communicate, even though those who knew her testified that she could physically convey the idea of “no” when she wanted to. Today‘s opinion will make others more reticent about engaging in sex with people who are physically impaired. Their already difficult task of seeking out a partner for sexual gratification will become even more daunting.
Adopting a reading of the statute “that allow[s] more cases to be submitted to the good judgment of a jury” will deter all those who do not wish to submit their lives to the judgment of a jury, which I‘m guessing includes most people. T.C. herself, for example, will never have sex again; who‘d be foolish enough to risk it? If we‘re going to let juries impose lifetime sex bans on disabled individuals, it should only be by Congress speaking in far clearer terms. Cf. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442-43, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (noting that how mentally disabled persons “[are] to be treated under the law is ... very much a task for legislators ... and not by the perhaps ill-informed opinions of the judiciary“).