DOJ-OGR-00002998.jpg

Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 64 of 239

explicit conduct or the rape, molestation, prostitution, or other form
of sexual exploitation of children, or incest with children.

18 U.S.C. § 3509(a)(8). The term “sexually explicit conduct” is in turn defined to mean, among
other things, “sexual intercourse, including sexual contact”; and the term “sexual contact” means
“the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify sexual desire of any person.” Id. § 3509(a)(9)(A). Courts have looked to the definition
of “sexual abuse” set forth in Section 3509(a) to determine whether the statute of limitations of
Section 3283 applies to an offense. United States v. Carpenter, 680 F.3d 1101, 1103-04 (9th Cir.
2012) (“We join our sister circuits in looking to subsection 3509(a) for a definition of ‘sexual
abuse’ under federal law, and find it the appropriate definition to use in applying section 3283’s
extended statute of limitations.”); United States v. Vickers, No. 13 Cr. 128 (RJA) (HKS), 2014 WL
1838255, at *10 (W.D.N.Y. May 8, 2014) (applying the definition of “sexual abuse” set forth in
Section 3509(a)).

As is evident from its plain text, the definition of “sexual abuse” set forth in Section 3509(a)
includes not only actual “sexual contact,” but also the “the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in, or assist another person to engage in,”
sexual contact. 18 U.S.C. § 3509(a). The breadth of this definition is underscored by Congress’s
use of the word “includes.” The Supreme Court has held that Congress’s choice of the word
“includes” is “significant because it “makes clear that the examples enumerated in the text are
intended to be illustrative, not exhaustive.” Christopher v. SmithKline Beecham Corp., 567 U.S.
142, 162 (2012) (citing Burgess v. United States, 552 U.S. 124, 131 n.3 (2008)). Thus, sexual
abuse “as defined here encompasses a wider set of behavior than just rape or other unwanted sexual
touching.” United States v. Schneider, 801 F.3d 186, 197 (3d Cir. 2015). In keeping with that

37

DOJ-OGR-00002998