                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 13-10543
           Plaintiff-Appellant,
                                                D.C. No.
                  v.                     3:11-cr-08206-NVW-1

 CHRISTOPHER JAMES,
          Defendant-Appellee.                   OPINION


        Appeal from the United States District Court
                 for the District of Arizona
          Neil V. Wake, District Judge, Presiding

                  Argued and Submitted
        August 11, 2015—San Francisco, California

                       Filed January 14, 2016

  Before: Alex Kozinski and Richard C. Tallman, Circuit
  Judges and Lawrence L. Piersol,* Senior District Judge.

                  Opinion by Judge Tallman;
                  Dissent by Judge Kozinski




  *
    The Honorable Lawrence L. Piersol, Senior United States District
Judge for the District of South Dakota, sitting by designation.
2                   UNITED STATES V. JAMES

                           SUMMARY**


                           Criminal Law

    The panel reversed the district court’s decision granting
a motion for acquittal after a jury rendered a verdict against
the defendant on two counts of sexual abuse of a severely
disabled woman under 18 U.S.C. § 2242(2)(B), vacated the
judgment of acquittal, and remanded for reinstatement of the
jury verdict.

    The panel held that “physically incapable” under
§ 2242(2)(B)—which punishes a sexual act with a person
physically incapable of declining participation in, or
communicating unwillingness to engage in, that sexual act—
should be defined broadly and not confused with the more
narrow “physically helpless” standard employed by the
district court. The panel held 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 the woman was physically incapable
of declining participation in, or communicating her
unwillingness to engage in, a sexual act with the defendant.
The panel held that—to the extent a defendant raises a
factual dispute regarding consent as a defense under
§ 2242(2)(B)—the jury is the appropriate fact-finder to weigh
the question when evaluating the victim’s physical incapacity
to decline participation or communicate her unwillingness to
engage in the alleged sexual abuse.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. JAMES                      3

    Dissenting, Judge Kozinski wrote that, 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 the woman’s physical limitations rendered
her incapable of declining participation or communicating
unwillingness.


                         COUNSEL

Dimitra H. Sampson (argued), Assistant United States
Attorney; John S. Leonardo, United States Attorney; Mark S.
Kokanovich, Deputy Appellate Chief, Phoenix, Arizona, for
Plaintiff-Appellant.

Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, Phoenix,
Arizona, for Defendant-Appellee.


                          OPINION

TALLMAN, Circuit Judge:

    Federal law lacks a generic statute addressing non-
consensual rape, as every state has. Instead, 18 U.S.C.
§ 2241 prohibits aggravated forcible sexual assault.
18 U.S.C. § 2242(2) covers the less frequent scenario where
an assailant sexually assaults a victim who is (A) mentally
incapable of understanding what is happening, or
(B) physically incapable of resisting the assault. Under
§ 2242(2)(A), sexually assaulting a person whose mental
capacity is such that one cannot form the necessary consent
in many ways mirrors state statutory rape laws. The other
4                    UNITED STATES V. JAMES

subsection, § 2242(2)(B), however, covers the even more
infrequent scenario where the victim who is sexually
assaulted may have mental capacity to consent but is
incapable of communicating a refusal of unwanted
intercourse. We review the latter in greater depth today on a
record of heart-wrenching facts.

    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 18 U.S.C. § 2242(2)(B). The court found insufficient
evidence that the victim was “physically incapable” of
resisting or declining to participate in the sexual assault by
James. We hold that the district court erred in granting that
acquittal, although we acknowledge that determining what
constitutes physical incapacity under § 2242(2)(B) is a
difficult issue of first impression in our circuit. Applying the
familiar standard under Jackson v. Virginia, 443 U.S. 307,
320 (1979), we hold, contrary to the district court’s decision,
that there was sufficient evidence to support the jury’s
determination by proof beyond a reasonable doubt that James
violated the statute under which he was found guilty.

                                    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,


    1
    In order to protect the victim’s privacy, we refer to her solely by her
initials throughout this opinion. We summarize the facts in the light most
favorable to the prosecution in support of the jury’s verdict. See United
States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007).
                  UNITED STATES V. JAMES                     5

including eating, grooming, and using the bathroom. She
cannot walk without assistance. She must be lifted in and 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 largely non-verbal. She
communicates primarily through nodding her head yes or no
in response to questions and grunting. Her full time caretaker
of eight and one-half years testified that her responses are
frequently inappropriate or nonsensical to the questions or
situation. Her uncle testified that T.C. sometimes “gets mad”
and “kind of like growls and give[s] you the mean look” if he
changes a channel away from a program she prefers watching
on television. T.C.’s caretaker testified she “kn[ew] about”
an instance where T.C. bit a person she did not like, and that
T.C. can cry and express anger. When T.C. finishes using the
toilet, she will moan or grunt to indicate she is done. These
examples are reflective of the extent of T.C.’s
communicability.

   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
6                 UNITED STATES V. JAMES

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, he 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
                      UNITED STATES V. JAMES                               7

major crimes committed on Native American land); cf.
18 U.S.C. § 1162 (noting Arizona is not one of the six
enumerated states that have “jurisdiction over offenses
committed by or against Indians in the areas of Indian
country”). On November 1, 2011, a federal grand jury
returned an indictment charging James with two counts of
sexual abuse in violation of 18 U.S.C. § 2242(2)(B). For
reasons unknown, the Government did not charge James in
the indictment under § 2242(2)(A), nor did it offer an expert
at trial to establish her cognitive impairments, relying instead
on lay testimony from family members, caregivers, the nurse,
and the BIA agent.

    A three-day jury trial began on July 30, 2013. The
investigating BIA agent testified that he was unable to ask
T.C. about the event because he could not communicate with
her, but he videotaped his contact with her and that was
shown to the jury during the trial.2 The jury returned a guilty
verdict on both counts of sexual abuse. Though James moved
for a judgment of acquittal under Federal Rule of Criminal
Procedure 29(a) both at the close of the Government’s case
and again at the close of trial, the district court reserved its
ruling on both occasions to await the jury’s verdict. The jury


   2
      The Government submitted two videos that were admitted into
evidence at trial: (1) clips of T.C. at her school taken near the time of the
incident with James; and (2) the attempted “interview” between the BIA
agent and T.C. filmed after the incident. Both of these videos, particularly
the latter, demonstrate examples of T.C.’s extreme physical limitations
and her inability to provide a narrative as to what happened. This was
powerful corroborative evidence for the jury’s consideration of the
testimony offered by those who knew her best as to whether she was
physically incapable of declining participation in, or communicating her
unwillingness to engage in, sexual acts with James. She was not called as
a witness at trial for the same reasons.
8                    UNITED STATES V. JAMES

convicted. After post-trial briefing and oral argument, the
district court granted James’ Rule 29 motion and entered its
Judgment of Acquittal on September 26, 2013. The
Government timely appealed. We have jurisdiction under
28 U.S.C. § 1291, and we reverse.

                                    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 18 U.S.C. § 2242 in 1986 as part
of its effort to “modernize and reform Federal rape statutes.”
H. Rep. No. 99-594, at 6 (1986). It states in relevant part:

         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


    3
   The “special maritime and territorial jurisdiction of the United States”
includes Indian Country. United States v. Begay, 42 F.3d 486, 498 (9th
Cir. 1994).
                     UNITED STATES V. JAMES                             9

         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.

18 U.S.C. § 2242 (emphasis added).4           Because the
Government indicted James under only subsection (2)(B)—
physical incapacity—rather than subsection (2)(A)—mental
incapacity—the jury could convict James only if it deemed
T.C. physically incapable of resisting or communicating her
lack of consent.

    This case turns on the breadth of the “physically
incapable” standard in § 2242(2)(B) for punishing a sexual
act with an individual with the physical incapacity to decline
participation in or communicate unwillingness to engage in


 4
   18 U.S.C. § 2241 proscribes aggravated sexual abuse, which includes
causing another person to engage in a sexual act (a) by force or threat,
(b) by rendering the victim unconscious (e.g., by a drug), or (c) when the
victim is a child.
10                  UNITED STATES V. JAMES

the act.5 The statutory definitions provided in 18 U.S.C.
§ 2246 do not define “physically incapable,” nor did
Congress provide context for this term in the legislative
history. While no federal court has definitively addressed the
issue, we hold that “physically incapable” under § 2242(2)(B)
should be defined broadly and not confused with the more
narrow “physically helpless” standard employed by the
district court. As so interpreted, we think the Government
provided sufficient evidence to permit the question to proceed
to the jury. The resulting guilty verdict meets the standard of
Jackson. See Jackson, 443 U.S. at 320.

    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 § 2242(2)(B). See, e.g., Conn.
Gen. Stat. § 53a-71(a)(3); N.Y. Penal Law § 130.35(2). The
district court may have relied on this parallel because some
states’ definitions of “physically helpless” similarly discuss
an inability to communicate. For example, both Oregon and
New York define the term “physically helpless” as “a person
[who] is unconscious or for any other reason is physically
unable to communicate unwillingness to [engage in a sexual]

  5
    The dissent appears to suggest we should apply the rule of lenity in
interpreting this statute. See Dissent at 20. However neither we or the
dissent find the statute ambiguous. Id. (“What this means is perfectly
clear.”). Therefore, the rule of lenity does not apply. See United States
v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies
only when, after consulting traditional canons of statutory construction,
we are left with an ambiguous statute.”). The question is whether the
evidence was sufficient to convict James under 18 U.S.C. § 2242(2)(B).
                  UNITED STATES V. JAMES                     11

act.” Or. Rev. Stat. § 163.305; N.Y. Penal Law § 130.00(7);
see also Tenn. Code § 39-13-501(5).

    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 (1957); see also
Taylor v. United States, 495 U.S. 575, 591 (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
18 U.S.C. § 2242 is a provision punishing non-consensual
sexual intercourse. The scope of conduct punished by federal
law is therefore narrower than the scope of conduct punished
by state law. See United States v. Cabrera-Gutierrez,
756 F.3d 1125, 1134 (9th Cir. 2014) (“Nonconsensual
intercourse with a mentally and physically capable individual
not involving a threat or the use of fear might violate Or. Rev.
Stat. § 163.425, but it would not violate 18 U.S.C. § 2242.”).

    Second, the district court followed the line of state case
law that construes the term “physically helpless” very
narrowly. See State v. Fourtin, 52 A.3d 674 (2012); People
v. Huurre, 603 N.Y.S.2d 179 (N.Y. App. Div. 1993).
Although both cases involved victims who suffer from
cerebral palsy as T.C. does, the district court ignored the
differences between the legal terms “physically incapable”
and “physically helpless.” In Fourtin, a 4–3 decision, the
majority held a woman who could not walk or talk
nonetheless failed to meet the physically helpless standard
because she could nonverbally communicate her
12                   UNITED STATES V. JAMES

unwillingness to engage in the sexual act by biting, kicking,
and screaming. 52 A.3d at 689. Rather than apply a common
sense interpretation of the term, Fourtin explained that
“‘physically helpless’ has a particular statutory meaning that
requires more than a showing that a victim is totally
physically incapacitated.” Id. (emphasis added); see also id.
at 682 (“[N]o one would dispute that the victim is physically
helpless in the ordinary sense of that term.”). In Huurre, the
state appellate court held that the victim was able to
nonverbally communicate her unwillingness to do something
by making guttural noises. 603 N.Y.S.2d at 306–07.
Although the state had not sustained its burden in presenting
evidence sufficient to demonstrate the victim was physically
helpless, Huurre noted that the state had sustained its burden
of showing an inability to consent “by reason of a mental
defect.” Id. at 310.6



  6
     Critically, states like Connecticut and New York can afford to be
narrow in their interpretation of “physically helpless” because they have
other statutes that address conduct where a physically restrained or
disabled victim verbally or non-verbally indicates lack of consent. See,
e.g., People v. Morales, 528 N.Y.S.2d 286, 286–87 (N.Y. Sup. Ct. 1988)
(dismissing one count because the victim, who “suffers from muscular
dystrophy rendering her paralyzed from the neck down and wheelchair
bound,” was not physically helpless, but sustaining indictment for forcible
rape); State v. Hufford, 533 A.2d 866, 869–72, 873–74 (Conn. 1987)
(setting aside guilty verdict for sexual contact with a woman restrained on
a stretcher due to insufficient evidence she was “physically helpless” and
of use of force to compel the sexual contact, but remanding for new trial
to determine guilt under non-consensual sexual assault statute); see also
State v. Bucknell, 183 P.3d 1078, 1081–82 (Wash. Ct. App. 2008)
(reversing rape conviction because victim, who suffered from ALS and
“was bedridden and unable to move from her chest down,” was not
physically helpless, but remanding for entry of judgment on a lesser
charge of non-consensual sexual intercourse).
                  UNITED STATES V. JAMES                    13

    However, the term “physically helpless” has various
interpretations in other states. See, e.g., Dabney v. State,
930 S.W.2d 360 (Ark. 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.” Iowa Code
§ 709.4(d). The state defines these terms separately:
“Physically helpless” means a person who “is unable to
communicate an unwillingness to act because the person is
unconscious, asleep, or is otherwise physically limited,” and
“[p]hysically incapacitated” means a person who “has a
bodily impairment or handicap that substantially limits the
person’s ability to resist or flee.” Id. § 709.1A. These
statutes demonstrate that the concept of being “physically
helpless” need not be as narrow as defined by Connecticut or
New York and that “physically incapable” is a separate,
broader standard.

    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” and “physically incapable”
are two separate standards. “Physically helpless” suggests a
lack of physical ability to do anything while “physically
incapable” is a term that is more susceptible to application to
14                UNITED STATES V. JAMES

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 § 2242(2)(B).
For example, we have held in the context of sentencing that
a defendant had committed an act in violation of § 2242
where the victim “repeatedly gained and lost consciousness”
and “was unconscious or nearly so” when the defendant
engaged in intercourse with her. United States v. Morgan,
164 F.3d 1235, 1237–38 (9th Cir. 1999). The Eighth Circuit
has similarly held that sufficient evidence supported finding
the victim physically incapable where “the lingering effects
of the marijuana may have hindered her ability to object
straightaway to the abuse,” even though the victim was
conscious at the time of the sexual assault. United States v.
Carter, 410 F.3d 1017, 1028 (8th Cir. 2005); see also United
States v. Barrett, 937 F.2d 1346, 1348 (8th Cir. 1991)
(upholding conviction where the victim, though not fully
awake until penetration, “vaguely remember[ed] someone
pulling off her jeans and underwear”).

    These federal cases support our conclusion by indicating
that a defendant may be convicted under § 2242(2)(B) where
the victim had some awareness of the situation and—while
not completely physically helpless—was physically
                     UNITED STATES V. JAMES                           15

hampered due to sleep, intoxication, or drug use and thereby
rendered physically incapable.7

     Most compellingly, “whether a victim is physically
helpless at any given moment is largely a question of fact for
the jury to decide.” Fourtin, 52 A.3d at 695 (Norcott,
Eveleigh, & Harper, JJ., dissenting) (quoting State v. Stevens,
53 P.3d 356, 361 (Mont. 2002)); see also State v. Tapia,
751 N.W.2d 405, 407 (Iowa Ct. App. 2008) (same); State v.
Rush, 650 A.2d 373, 374 (N.J. Super. Ct. 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.

    After surveying the dearth of case law, we find the cases
more persuasive which punish conduct under the broader
“physically incapable” standard rather than the narrower
“physically helpless” standard because it will allow more
cases to be submitted to the good judgment of a jury. A jury
could properly convict under § 2242(2)(B) for sexual acts
committed against a victim who cannot verbally articulate her
lack of consent—“physically incapable of communicating
unwillingness”—as well as a victim who cannot physically
resist the sexual act—“physically incapable of declining

   7
     In contrast to our situation involving a developmentally disabled
woman, the law is well established that a sexual act with one who is
physically incapable due to sleep, intoxication, or drug use is punishable
under § 2242(2)(B). See United States v. Fasthorse, 639 F.3d 1182, 1184
(9th Cir. 2011) (citing United States v. Wilcox, 487 F.3d 1163, 1169 (8th
Cir. 2007)) (affirming conviction even where the victim woke up while the
sexual act was ongoing); Carter, 410 F.3d at 1027–28. Contra United
States v. Peters, 277 F.3d 963, 967 (7th Cir. 2002).
16                UNITED STATES V. JAMES

participation.” We hold that the district court erred by, in
essence, requiring the Government to prove T.C. was
physically helpless in order to allow the jury’s verdict to
stand.

                              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
physically incapable of declining participation in, or
communicating her unwillingness to engage in, a sexual act
with James. See Jackson, 443 U.S. at 320.

    The Government presented evidence that witnesses—
even those who knew her well—could not always understand
T.C. Cf. Fourtin, 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
                     UNITED STATES V. JAMES                             17

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 physically incapable of declining participation
in this unwanted sexual act.8


   8
      The dissent highlights evidence that could support an acquittal.
Dissent at 22–25. While that evidence might support a conclusion that
T.C. was capable of communicating her unwillingness to participate in the
sexual act, the jury heard this evidence and did not credit it. We must
presume “that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” United States v. Nevils,
598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (quoting Jackson v.
Virginia, 443 U.S. 307, 326 (1979)). “[A] court of appeals may not usurp
the role of the finder of fact by considering how it would have resolved the
conflicts, made the inferences, or considered the evidence at trial.” Id.
The evidence is sufficient under Jackson to support the jury’s conclusion.
18                UNITED STATES V. JAMES

                               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 § 2242(2)(A);
it is quite another to say the law is designed in this manner for
individuals who suffer solely from a physical disability.

    The legislative history of § 2242(2) is clear that “[l]ack of
consent by the victim is not an element of the offense, and the
prosecution need not introduce evidence of lack of consent or
of victim resistance.” H. Rep. No. 99-594, at 16 (emphasis
added). This makes sense, as it would be very difficult to
prove a sleeping or intoxicated person—who could not
provide any verbal or non-verbal cues—did not consent to the
sexual act. But we do not think this means that in the case of
a severe physical disability the jury cannot consider the
presence of consent when determining physical incapacity.

    We hold that—to the extent a defendant raises a factual
dispute regarding consent as a defense under § 2242(2)(B)—
the jury is the appropriate fact-finder to weigh the question
when evaluating the victim’s physical incapacity to decline
participation 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, conceded “it wasn’t like sex” because “she’s just
                  UNITED STATES V. JAMES                      19

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
18 U.S.C. § 2242(2)(B) too narrowly, but I’m not sure how
the majority’s reading is any different from that of the district
court—or mine, for that matter. The whole enterprise seems
misguided because the statute is clear and thus not reasonably
susceptible to conflicting interpretations.

    Here’s what the statute says:

        Whoever . . . knowingly . . . engages in a
        sexual act with another person if that other
20                 UNITED STATES V. JAMES

        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.

18 U.S.C. § 2242. What this means is perfectly clear: The
government must prove that the alleged victim had a physical
impairment and that this impairment made it impossible for
her to say no to (“communicat[e] unwillingness to engage
in”) or otherwise indicate nonconsent to (“declin[e]
participation in”) sexual acts. There must be enough
evidence for the jury to find beyond a reasonable doubt that
the victim could not indicate, by word or deed, her lack of
assent to a proposed sexual contact. Insofar as the majority
tries to squeeze any more meaning out of these words—such
as the possibility that the government could prove a violation
by showing the victim could not actually fight off her
assailant, see maj. at 10, 17—I must respectfully disagree.
The statute is simply not susceptible to any such
interpretation.

    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 10 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 15. 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
                  UNITED STATES V. JAMES                      21

v. United States, 471 U.S. 419, 427 (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 section 2242(2)(B) more broadly than
analogous state laws because “state law punishes the broad
category of non-consensual rape—but federal law has no such
counterpart.” Maj. at 11. This is a legislative choice
Congress was free to make; it gives us no license to stretch
other provisions of federal law beyond their natural meaning.
The question “is not what Congress would have wanted but
what Congress enacted.” Republic of Argentina v. Weltover,
Inc., 504 U.S. 607, 618 (1992) (internal quotation marks
omitted). Our task is to construe the language as written, not
to fill in what we perceive to be gaps in the statute.

    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 subsection (2)(B) (dealing with
physical incapacity) rather than subsection (2)(A) (dealing
with mental incapacity), we must assume that T.C. was
capable of understanding and consenting to sexual intercourse
with James. The only question is whether she was able to
communicate lack of consent if she chose not to participate.
22               UNITED STATES V. JAMES

    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
          UNITED STATES V. JAMES                     23

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
Apache 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,
24             UNITED STATES V. JAMES

     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, 52 A.3d
     674 (Conn. 2012)] and [People v. Huure,
     603 N.Y.S.2d 779 (N.Y. App. Div. 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
                 UNITED STATES V. JAMES                   25

       § 2242(2)(B) requires evidence that the victim
       is physically incapable of expressing
       unwillingness or declining participation. The
       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 (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 nonresponsive during
her medical examination, see maj. at 16–17, is wholly
irrelevant. See State v. Fourtin, 52 A.3d 674, 689–90
(concluding that a victim’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.
26                UNITED STATES V. JAMES

    It’s possible that T.C. didn’t comprehend the situation,
either when she was with James or with the nurse. See maj.
at 16–17. But because the government didn’t charge James
under section 2242(2)(A), T.C.’s mental capacity to
“apprais[e] the nature of the conduct” was never at issue
before the jury and is not at issue now. We therefore must
presume her limitations were purely physical, and that her
comprehension of the situation was no different from that of
any other adult woman. The majority’s periodic references
to T.C.’s mental capacity betray its effort to justify James’s
conviction under a provision he was not charged with
violating.

    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 5, 16, is not the least bit helpful. Evidence that
it’s hard to understand T.C.’s “wants or needs” doesn’t
demonstrate that she is incapable of expressing her
unhappiness with a situation. Witnesses familiar with T.C.
agreed that she can express disapproval with head nods,
grunts, moans, growls, tears and mean looks similar to those
given by able-bodied people. The majority is right that the
video introduced into evidence “was powerful corroborative
evidence for the jury’s consideration of the testimony offered
by those who knew her best,” maj. at 7 n.2: The video
confirms that T.C. could express a simple concept like “no”
by physically verbalizing that word. While those who knew
T.C. testified that people less familiar with her might not be
able to understand the exact message she is trying to convey
with her growls or grunts, none of them said that she was
                  UNITED STATES V. JAMES                    27

unable to communicate a simple concept like “no” by means
of head shaking, mean looks, crying or kicking. This
testimony, along with the video showing T.C. saying the
word “no,” gives rise to only one conclusion: T.C. had
multiple ways to “communicat[e] unwillingness” that a
reasonable person unfamiliar with her could understand.

     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 17. 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 18. 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
28                UNITED STATES V. JAMES

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
(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”).

    In the end, the majority faults James for not trying to
prove consent as a defense. Maj. at 18–19. But the absence
of an affirmative defense does not lower the government’s
burden to prove the elements of the crime. Because the
government didn’t (and couldn’t) prove one such element
beyond a reasonable doubt, I would affirm the sound
judgment of the district court.
