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Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 55 of 69 solely on the age of the participant, the generic federal definition of minor requires that the age of the alleged victim be the then-current age of consent in the jurisdiction where the sexual activity was intended or did occur. Where the ability or incapacity to consent to sexual activity is age-dependent, the proof must satisfy the elements governed by the statute in effect at time and place where the alleged sexual activity may occur. For each count in the Indictment, age is a predicate element which the government must prove to bar the defense of consent. Counts Two and Four specify violations of New York State Penal Law § 130.55, which criminalizes sexual contact with a person less than 17 years old.*? For Count Two, the government must prove that Ms. Maxwell knew thar a: less than 17 years old.*4 For Count Four, the government must prove that was less than 17 years old during purported sexual activity.*> For Count Six, the government must prove that Ms. Maxwell knew that yg was under age 18.36 Counts One and Three charged conspiracies alleging conduct involving all four accusers identified in the Indictment and multi-jurisdictional locations with varying local state laws. Depending on the age of the accusers during the time frame of the conspiracy, consent may be an 3 Section 130.55 — Sexual Abuse in the Third Degree — states in pertinent part: A person is guilty of sexual abuse in the third degree when her or she subjects another person to sexual contact without the latter’s consent, except that in any prosecution under this section, it is an affirmative defense that (a) such other person’s lack of consent was due solely to incapacity by reason of being less that seventeen years old. Designated a B misdemeanor, the maximum penalty is “shall not exceed three months,” (§70.15(2)), far less than the16 months Maxwell has served in pretrial detention. 34 See Government Proposed Request to Charge. 35 See Government Proposed Request to Charge. © See Government Proposed Request to Charge. 47 DOJ-OGR-00005510