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Sexual Abuse Verdict Reinstated by 9th Circ.

SAN FRANCISCO (CN) - Clarifying a federal rape statute, the Ninth Circuit ruled Thursday that "physically incapable" should not be confused with the narrower "physically helpless" standard in the case of a man accused of sexually assaulting a severely disabled woman.

Defendant Christopher James was found having sex with T.C. - a 28-year-old woman with severe cerebral palsy and his legal niece - on the porch of her grandparents' home, which is inside the boundaries of the Fort Apache Indian reservation.

According to the Circuit's opinion, the woman's disability makes it "difficult even for those who know T.C. to communicate with her or to understand her attempts at speech." James admitted to investigators that he had sex with T.C., saying she was "just laying there" during the alleged assault, the opinion said.

Since the incident took place on an Indian reservation, James could only be prosecuted under federal law. A jury found him guilty on two counts of sexual abuse, but the presiding federal judge later overturned the conviction.

The relevant section of the federal rape statute forbids engaging in sexual acts with a person who is "incapable of appraising the nature of the conduct" or "physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act."

Writing for the Circuit's three-judge panel, Circuit Judge Richard Tallman said that "this case turns on the breadth of the 'physically incapable' standard for punishing a sexual act with an individual with the physical incapacity to decline participation in or communicate unwillingness to engage in the act."

Noting that "no federal court has definitely addressed the issue," Tallman said "we hold that 'physically incapable' should be defined broadly and not confused with the more narrow 'physically helpless' standard employed by the district court," Tallman said.

Due to the "lack of congressional direction and germane federal precedent," he said, 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 a jury to convict James.

But relying on state law in a case like this is "problematic," because state law statutory schemes punish the broad category of "non-consensual rape" while federal law has no such counterpart, Tallman said.

He then defined "physically helpless" and "physically incapable" as 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 various factual situations that can come before a jury," Tallman said.

"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."

After reviewing the "dearth of case law," Tallman said the panel found more persuasive the precedent cases which punish conduct under the "physically incapable" standard "because it will allow more cases to be submitted to the good judgment of a jury."

"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," he said.

Having settled the proper legal standard, the Circuit held that the government proffered sufficient evidence to allow a rational juror to conclude beyond a reasonable doubt that T.C. was physically incapable of resisting James.

And although James was T.C.'s uncle by adoption, "he had never resided with her, and the evidence demonstrated they never spent any time together before James sexually assaulted her," Tallman said.

"Nothing indicates he knew her well enough to understand her or could otherwise understand her attempts at communication," he said.

The panel emphasized that "our holding does not preclude someone suffering from a physical disability from ever having consensual sexual intercourse." But in a separate dissent, Circuit Judge Alex Kozinski wrote, "I'm not so sure."

"Today's opinion will make others more reticent about engaging in sex with people who are physically impaired," Kozinski said. "Their already difficult task of seeking out a partner for sexual gratification will become even more daunting."

He said "the whole enterprise seems misguided," because the federal rape statute "is clear and thus not reasonably susceptible to conflicting interpretations."

The majority opinion "tries to squeeze more meaning" out of the law's language and seeks to "pump up the statute beyond its ordinary meaning," Kozinski said.

And the majority's "let the jury decide what's illegal" approach is "unwise and, most likely, unconstitutional," he said.

Since the government didn't charge James under the section of the statute concerning victims who are "incapable of appraising the nature of the conduct," Kozinski said, "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," he said.

Furthermore, he said, the majority opinion could allow juries to impose "lifetime sex bans" on disabled individuals.

Keith Hilzendeger - the federal public defender who defended James - said in a telephone interview that he was "disappointed" with the Circuit's ruling, and that Kozinski's dissent "more faithfully applied the language of the statute and the legal standard that governed the issue here."

"This particular statute was charged in an unusual way - it's not even the typical fact pattern that arises," he said.

"This is the first time that a published decision has interpreted this particular statute applied to a victim like the one in this case. I think this means that the application will be limited going forward."

Cosme Lopez, from the U.S. Attorney's Office in the district of Arizona, declined to comment.

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