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Case 1:20-cr-00330-PAE Document 439 _ Filed 11/12/21 Page 54 of 69 VI. CERTAIN EVIDENCE OR ARGUMENT THAT MINOR VICTIMS CONSENTED TO SEXUAL ABUSE MAY BE ADMISSIBLE. The government seeks blanket preclusion of evidence or argument that the accusers “consented to sexual abuse.” It bears noting that the Indictment does not charge sexual abuse. The charged offenses allege “sexual activity” (Counts One through Four) and “sex trafficking” (Counts Five and Six). The age of consent for sexual contact purposes varies by jurisdiction. The offenses charged in the S2 Indictment allege sexual activity with minors and focus on age, rather than mental or physical incapacity. Accordingly, to qualify as sexual activity with a minor, the statute must prohibit sexual acts based at least on age of the purported victim. See Esquival-Quintana v. Sessions, 137 S. Ct. 1562 (2017). As the Supreme Court noted, “state criminal codes aid our interpretation of ‘sexual abuse of a minor’ by offering useful context.” /d. at 1577 n.3. For purposes of sexual activity alleged in this case, the definition of “minor” varies among states and nations: New York defines “minor” as a person under the age of 177%; Florida: under the age of 18°; United Kingdom: under the age of 16°°; France: under the age of 15.7! New Mexico does not have a specific age of consent statute but criminalizes all sexual contact of a minor under the age of 13 when no coercion or force is involved.*” In the context of the charged offense focusing °8 NY Penal Law Ann. § 130.03(3)(a). »? Fla. Stat. § 794.05(1). At the time of the charged offenses in Counts Five and Six, individuals under the age of 18 could be charges with prostitution. In 2016, the law was changed, decriminalizing prostitution of by individuals under the age of 18. >° Sexual Offences Act, Chap. 44. 31 Penal Code, Article 227-25. 32 NM Stat. Ann. § 30-9-13(A)(1). New Mexico criminalizes sexual contact of minor on a child 13 to 18 years old when coercion is involved. § 30-9-12(A)(2). 46 DOJ-OGR-00006471