United States v. Christopher James

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, 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…