Full opinion text
SHEPHERD, Circuit Judge. A jury convicted James Bruguier of sexual abuse, in violation of 18 U.S.C. § 2242(2); burglary, in violation of S.D. Codified Laws § 22-32-1; aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a); and sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a). The district court sentenced him to 360 months imprisonment followed by five years of supervised release. Bruguier challenges only two of his four convictions on appeal. First, he challenges his sexual abuse conviction under section 2242(2), arguing the jury instructions on that offense erroneously omitted a mens rea element and constructively amended the indictment. Second, he challenges his burglary conviction, arguing insufficiency of the evidence. In addition, Bruguier challenges his sentence. We have jurisdiction under 28 U.S.C. § 1291. Because we hold that the jury instructions erroneously omitted a mens rea element, we reverse his sexual abuse conviction under section 2242(2), remand for a new trial on that count, and consequently vacate his sentence. We affirm his burglary conviction. I. Bruguier’s sexual abuse conviction under section 2242(2) stems from an incident at Crystal Strieker and her boyfriend Mike Miller’s home in Lake Andes, South Dakota, on January 10, 2011. Witnesses testified that Strieker and Tracie Thunder Horse, Miller’s sister, returned to Strieker’s home after a long night of drinking. Miller was asleep in the house, woke up briefly when they returned, and then went back to bed. Thunder Horse testified that Bruguier arrived at Strieker’s home later that night. She said that Bruguier and Strieker spoke in the living room, while she went into the kitchen. Thunder Horse testified that while she was in the kitchen, she heard “a big boom” and turned around to see Strieker lying on the living room floor. Bruguier “was on top of her, pulling her pants down” and “was starting to have sex with her.” Thunder Horse testified that Strieker’s eyes were closed, her head was pushed up against the wall, and she was not moving or speaking. Thunder Horse “got scared” and called for Miller, and Bruguier “told [her] to shut up.” Miller testified that he was in bed when he heard “a big bang in the living room,” followed by Thunder Horse calling his name. He also heard someone say “Shut up.” Miller went to the living room, where he saw Bruguier having sex with Strieker. Miller testified that Strieker was not moving or speaking, that “her head was tilted towards the vent” on the wall, and that “[h]er eyes were open, but they were glossy red.” Miller grabbed Bruguier’s shoulder and told him to leave. He noticed that Bruguier’s penis was erect and that Strieker had semen between her legs. Miller described Strieker as “laying like she was knocked out” and “in a daze.” Thunder Horse testified that after Miller threw Bruguier out of the house, Miller “went to [Strieker] and started shaking her ... and calling her name, telling her to get up.” Strieker testified she was so intoxicated that evening that she did not remember returning home. However, she testified that she did remember standing in her living room near the stereo some time after returning home. The next thing she remembered after that was lying in her own bed while Miller told her what had happened with Bruguier. Strieker testified that she felt “dirty” when Miller told her what Bruguier had done and that she never consented to having sex with Bru-guier. Bruguier testified that Strieker kept asking him to dance after he arrived at her house and that they kissed and had consensual sex. He testified that Strieker was conscious, moving, and moaning throughout their sexual encounter and that she never asked him to stop. Bruguier’s burglary conviction stems from an unrelated incident during the summer of 2010. T.S., who was a minor at the time, testified at trial that she was asleep in her Lake Andes home when she heard a noise and awakened to find Bru-guier standing in her room. Bruguier asked T.S. why she was dating her boyfriend instead of him. T.S. testified that she told Bruguier to leave, but he hit her on the head and raped her. Bruguier stipulated that he is an American Indian and that all alleged events occurred in Indian country. II. A. Bruguier first argues that the jury instructions for his sexual abuse conviction under 18 U.S.C. § 2242(2) were erroneous both because they omitted a mens rea element of the offense and because they constructively amended the indictment. Because we find his mens rea argument dispositive, we need not address his constructive amendment argument. “[Although district courts exercise wide discretion in formulating jury instructions, when the refusal of a proffered instruction simultaneously denies a legal defense, the correct standard of review is de novo.” United States v. Young, 613 F.3d 735, 744 (8th Cir.2010) (internal citation omitted). Thus, we review Bruguier’s jury instructions de novo, beginning with the language of the statute. Section 2242 states in pertinent part: Whoever, in the special, maritime and territorial jurisdiction of the United States ... knowingly— (2) engages in a sexual act with another person if that other person is— (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2242. Bruguier contends section 2242(2) requires that the defendant have knowledge of the victim’s incapacity or inability to consent. To that end, Bruguier proposed a jury instruction that would have required the jury to find not only that he knowingly engaged in a sexual act with Strieker and that Strieker was incapable of consenting, but also “that James Bruguier knew that Crystal Strieker was physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The district court rejected Bru-guier’s proposed instruction. Instead, the court construed the applicable elements of section 2242(2) as being (1) that “Bruguier did knowingly cause or attempt to cause Crystal Strieker to engage in a sexual act”; (2) “that Crystal Strieker was physically incapable of declining participation in and communicating unwillingness to engage in that sexual act”; (3) that Bruguier is an Indian; and (4) that the offense took place in Indian country. ■ The issue before us is whether “knowingly” in section 2242(2) requires only that Bruguier knowingly engaged in a sexual act with Strieker, or whether it also requires that Bruguier knew Strieker was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” § 2242(2). This is an. issue of first impression for this Court. “[Determining the mental state required for commission of a federal crime requires construction of the statute and ... inference of the intent of Congress.” Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (internal quotation marks omitted). “The language of the statute [is] the starting place in our inquiry....” Id. The Supreme Court has stated that courts “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Flores-Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). Moreover, “offenses that require no mens rea generally are disfavored, and [the Supreme Court has] suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples, 511 U.S. at 606, 114 S.Ct. 1793 (internal citation omitted). Thus, pursuant to Staples and Flores-Figueroa, there is a presumption that “knowingly” in section 2242(2) applies to the circumstances following the conjunction “if.” Reading section 2242(2) in “the manner in which the courts ordinarily interpret criminal statutes,” Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886, leads to the conclusion that section 2242(2) requires that Bruguier knew Strieker was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act,” § 2242(2). We find no reason to depart from the ordinary approach that the Supreme Court articulated in Staples and Flores-Figueroa. The Supreme Court has explained that situations where the term “knowingly” does not apply to all elements that follow it “typically involve special contexts or ... background circumstances that call for such a reading.” Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886. Here, however, neither the “context” nor “background circumstances” lead to the conclusion that “knowingly” in section 2242(2) does not apply to the victim’s incapacity or inability to consent. In fact, the context and background circumstances further compel the conclusion that “knowingly” does apply to each element. Section 2242(2) was passed into law as part of the Sexual Abuse Act of 1986 (“the Act”). See Sexual Abuse Act of 1986, Pub.L. No. 99-646, § 87, 100 Stat. 3592, 3620-24 (codified as amended at 18 U.S.C. § 2241-44, 2246). In addition to section 2242(2), the Act included two other statutes that use the term “knowingly” and then specify circumstances under which it would be illegal for a defendant to “engage[] in a sexual act.” See 100 Stat. 3620-21. The first statute, codified at 18 U.S.C. § 2241(c), makes it illegal for a defendant to “knowingly engage[ ] in. a sexual act with another person who has not attained the. age of 12 years.” The second statute, codified at 18 U.S.C. § 2243(a), specifies: (a) ,Of a minor.. — Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in a sexual act with another person who— (1) has attained the age of '12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. A side-by-side comparison of sections 2241(c), 2242(2), and 2243(a) illustrates the similarity between these three statutes and their comparable linguistic structure: § 2241(c)_§ 2242(2)_§ 2243_ Whoever, in the special maritime and territorial jurisdiction of the United States. . . knowingly_knowingly — . . ._knowingly__ _engages in a sexual act with another person_ who has not attained the age of 12 years. . . if that other person is— (A) incapable of appraising the nature of the conduct; or. (B) physically incapable of declining participation in, or communicating unwillingness _to engage in, that sexual act; or attempts to do so, shall be [subject to differing punishments!. who— (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; § 2241(c); § 2242(2); § 2243(a). Significantly, both section 2241 and section 2243 include provisions that explicitly narrow the mens rea requirement. Section 2241 specifies that “the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” § 2241(d). Section 2243 provides: (d) State of Mind Proof Requirement. — In a prosecution under subsection (a) of this section, the Government need not prove that the defendant knew— (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging. § 2243(d). Section 2242, however, contains no affirmative language relieving the government of its burden to prove the defendant’s knowledge. See § 2242. The Supreme Court has recognized a general rule of statutory construction that “[wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (internal quotation and alteration marks omitted). Here, all three statutes included in the same Act make it illegal for a defendant to “knowingly” engage in certain “sexual act[s].” Sections 2241 and 2243 explicitly limit the application of “knowingly,” while section 2242 does not. Thus, reading section 2242(2) in the broader context of the Act, and applying Rodriguez’s presumption that “disparate inclusion or exclusion” of statutory language is intentional, Rodriguez, 480 U.S. at 525, 107 S.Ct. 1391, reinforces the conclusion that “knowingly” in section 2242(2) applies to the victim-incapacity element of the offense. See also Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 2717-18, 177 L.Ed.2d 355 (2010) (rejecting interpretation of statute as “untenable in light of the sections immediately surrounding” it because “Congress did not import the intent language of those provisions” into the statute at issue); Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010) (noting that “explicit exception” in one statute was “powerful evidence” that similar statutes did not “imply such an exception”); Northcross v. Bd. of Educ., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (noting that “similarity of language” in two different statutes was “strong indication that the two statutes should be interpreted” the same). Moreover, interpreting the knowledge requirement in section 2242(2) to extend only to knowledge of the sexual act would raise interpretive concerns with sections 2241 and 2243. As discussed above, Rodriguez instructs that sections 2241(c), 2242(2), and 2243(a) should be read together. If section 2242(2)’s knowledge requirement were construed to- apply only to knowledge of the sexual act, then this same construction logically should apply to the knowledge requirement in sections 2241(c) and 2243(a). Doing so, however, would render superfluous sections 2241(d) and 2243(d), both of which explicitly narrow the respective statutes’ knowledge requirements. This would run afoul of “the cardinal principle of statutory construction that it is our duty to give effect, if possible, to every clause and word of a statute.” Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal quotation and alteration marks omitted); cf. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 58, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (recognizing “the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form”); Albernaz v. United States, 450 U.S. 333, 341, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“Congress is predominately a lawyer’s body, and it is appropriate for us to assume that our elected representatives know the law.” (internal quotation marks, alteration marks, and citations omitted)). In summary, Staples and Flores-Figueroa create a presumption that “knowingly” in section 2242(2) requires a defendant to know the victim was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act,” § 2242(2). See Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886; Staples, 511 U.S. at 606, 114 S.Ct. 1793. Flores-Figueroa instructs that this presumption can be rebutted where the “context” or “background circumstances” of a statute lead to a different reading. See Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886. Here, however, looking at the broader statutory context reinforces this presumption. Sections 2241 and 2243, passed into law as part of the same Act, include provisions explicitly limiting those statutes’ mens rea requirements, and we presume that Congress intentionally omitted similar limiting language from section 2242. See Humanitarian Law Project, 130 S.Ct. at 2717-18; Hui, 559 U.S. at 807, 130 S.Ct. 1845; Rodriguez, 480 U.S. at 525, 107 S.Ct. 1391. Moreover, adopting a narrower construction of the knowledge requirement in section 2242(2) would create interpretative problems with sections 2241 and 2243, since it would render superfluous the provisions. of those two statutes that place limits on the reach of “knowingly.” See Bennett, 520 U.S. at 173, 117 S.Ct. 1154. Thus, looking at the language of the statute and applying settled rules of statutory construction compels the conclusion that “knowingly” in section 2242(2) applies to each element of the offense. Although the above analysis conclusively resolves the question before us, we note that other rules of statutory construction would lead to the same conclusion. It is a “familiar principle that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 2932, 177 L.Ed.2d 619 (2010) (internal quotation marks omitted). Moreover, the Supreme Court has stated that “where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.” Staples, 511 U.S. at 618-19, 114 S.Ct. 1793. Knowingly “engaging] in a sexual act with another person,” § 2242(2), is not inherently criminal under federal law, barring some other attendant circumstance. Defendants convicted under section 2242(2) are subject to “imprison[ment] for any term of years or for life.” Id. Thus, even if the rules of statutory construction discussed above left any doubt about the reach of “knowingly” in section 2242(2), the rule of lenity and the potentially harsh penálty of life imprisonment would tip the balance in favor of construing “knowingly” to apply to the victim-incapacity element of the statute. Furthermore, while we do not base our conclusion regarding the statute’s construction on legislative history, we note that the legislative history also leads to the same construction; The House Report issued by the Judiciary Committee stated that the purpose of the Sexual Abuse Act of 1986 was to “modernize and reform Federal rape statutes.” H.R.Rep. No. 99-594, at 6 (1986). In discussing the provisions of sections 2241 and 2243 that explicitly limit those sections’ knowledge requirements, the House Report states that without these provisions, “the government would have had to prove that the defendant knew that a victim was less than 12 years old, since the state of mind required for the conduct — knowing—is also required for the circumstance of the victim’s age.” Id. at 15 n. 59 (discussing knowledge requirement in section 2241); see also id. at 18 n. 69 (discussing knowledge requirement in section 2243 and referencing footnote 59). The House Report shows that Congress understood the knowledge requirement in sections 2241 and 2243 to attach, absent a limiting provision, to the circumstance of the victim’s age. Notably, although Congress drafted the statutes “broadly to cover the widest possible variety of sexual abuse,” id. at 12, Congress did not mention that it intended to make section 2242(2) a strict liability crime, nor did it draft provisions limiting the reach of “knowingly” in section 2242(2). In short, the legislative history shows that Congress understood the knowledge requirement in section 2242(2) to attach to the victim’s incapacity dr inability to consent. The dissent objects to this opinion on three principal grounds: its take on the best grammatical reading of section 2242(2); its view of public policy; and the novel assertion that cases in which the issue before us was not raised, argued, discussed, or decided should inform our analysis. None of these bases withstand fair examination. First, the dissent offers its own reading of section 2242(2) and concludes that under the structure of the statute “ ‘knowingly’ belongs to and modifies [only] the words ‘engages’ and ‘attempts.’ ” See post at 776. This analysis begins with error because the dissent fails to acknowledge the Supreme Court’s most recent articulation of the relevant rules of statutory construction in Flores-Figueroa which requires us to presume that the mens rea that introduces the elements of a crime applies to each element. See Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886; id. at 660, 129 S.Ct. 1886 (Alito, J., concurring) (“I think it is fair to begin with a general presumption that the specified mens rea applies to all the elements of an offense, but it must be recognized that there are instances in which context may well rebut that presumption.”). Furthermore, instead of interpreting the statutory text in the manner prescribed by the Supreme Court, the dissent misreads the majority’s opinion as “addfing] an element of the offense that is not indicated by the congressional text.” See post at 777. This is simply not the case. We are not adding a mens rea requirement where one is not found; rather we are following the instruction of the Supreme Court and presuming the mens rea requirement found in the congressional text “applfies] ... to each element” that follows because that presumption is not rebutted. See Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886. The dissent further argues that this opinion is “inconsistent with the policies identified in the principal legislative report concerning the Sexual Abuse Act of 1986.” See post at 781. Specifically, the dissent focuses on studies discussing the frequency of sexual abuse suffered by Native American women and on the number of cases this court and district courts in this circuit have addressed under section 2242(2). No one could be unsympathetic to the circumstances addressed in the legislative report or in individual prosecutions. However, individual public policy judgments are no substitute for the rule of law and the statutory language that, under the directions of Flores-Figueroa and Staples, mandate us to presume the knowledge mens rea applies to all of the elements of section 2242(2). See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (holding when “the intent of Congress is clear [from the statutory text], that is the end of. the matter”). Third, the dissent refers to unidentified district court cases along with selected appeals to our court involving defendants accused of violating section 2242(2) as supporting “a longstanding assumption” and an “accepted understanding” that the knowledge requirement of section 2242(2) does not apply to the victim’s incapacity. As acknowledged by the dissent, however, the issue before us was not argued or decided in these cases, and thus, it is axiomatic that they provide absolutely no support for the dissent’s position. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (stating that a prior decision’s implicit resolution of an issue that was not “raised in briefs or argument nor discussed in the opinion of the Court” is “not a binding precedent”); Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”); Streu v. Dormire, 557 F.3d 960, 964 (8th Cir.2009) (“[W]e are generally not bound by a prior panel’s implicit resolution of an issue that was neither raised by the parties nor discussed by the panel.”). Finally, we recognize that “sex crimes committed against the vulnerable, such as an unconscious or intoxicated individual, are particularly egregious and dehumanizing.” United States v. Riley, 183 F.3d 1155, 1160 (9th Cir.1999). The harm experienced by victims is not alleviated where assailants are acquitted based on claims that they did not know the victims were incapacitated. However, “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U.S. at 72, 115 S.Ct. 464. Furthermore, reading section 2242(2) in the broader context of the Sexual Abuse Act of 1986 reinforces this presumption and compels the conclusion that section 2242(2) requires the government to prove that a defendant not only knew he or she was “engag[ing] in a sexual act with another person,” but also that the defendant knew the other person was “incapable of appraising the nature of the conduct” or “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” § 2242(2). Even if we harbored doubt about this construction due to the egregious nature of sexual abuse crimes, which we do not, the rule of lenity, the harsh penalties associated with the offense, and the legislative history would all tip the balance in favor of this construction. Thus, upon de novo review, we conclude that the district court’s failure to give Bru-guier’s instruction deprived him of his defense that he did not know Strieker was incapacitated or otherwise unable to deny consent. Consequently, we reverse his conviction under section 2242(2) and remand for a new trial on'this count. B. Bruguier next argues the evidence was insufficient to convict him of burglary under S.D. Codified Laws § 22-32-1. He preserved this issue by moving for a judgment of acquittal. See United States v. May, 476 F.3d 638, 640 (8th Cir.2007). Thus, “[w]e review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Gray, 700 F.3d 377, 378 (8th Cir.2012) (internal quotation marks omitted). “We reverse only if no reasonable jury could have found guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted). The only argument Bruguier advances concerning his burglary conviction is that the evidence was insufficient to prove he entered or remained in T.S.’s home with the specific intent to commit sexual assault. See § 22-32-1 (establishing elements of first degree burglary). He asserts that the evidence, at best, showed he acted on impulse when he assaulted T.S., not that he ever formed the specific intent to rape her. However, T.S. testified that Bruguier entered her room while she was sleeping, asked her why she was dating her boyfriend instead of him, and then hit her on the head before raping her. Viewed in the light most favorable to the government, this evidence certainly was sufficient for a reasonable jury to infer that Bruguier entered or remained in T.S.’s home with the specific intent to commit sexual assault. See State v. Martin, 498 N.W.2d 223, 228-29 (S.D.1992). (upholding jury’s factual determination that defendant possessed specific intent to support burglary conviction). Thus, we affirm Bruguier’s burglary conviction. C. Bruguier lastly challenges his sentence, arguing the district court incorrectly calculated his sentencing guideline range. We need not reach his sentencing arguments, however. Because the district court based its sentencing package on all four of Bruguier’s convictions, one of which we are reversing, we vacate his sentence and remand for re-sentencing. Cf. United States v. Evans, 314 F.3d 329, 332 (8th Cir.2002) (“Under the Guidelines, a multicount sentence is a package and severing part of the total sentence usually will unbundle it.” (internal quotation marks omitted)). III. Accordingly, we reverse Bruguier’s conviction for sexual abuse under section 2242(2) and remand for a new trial on that count. We consequently vacate his sentence and remand for re-sentencing. We affirm his burglary conviction. . All of these offenses are covered by 18 U.S.C. § 1153 as offenses committed within Indian country. The term "sexual act” for purposes of these convictions is defined in 18 U.S.C. § 2246(2). . In United States v. Betone, 636 F.3d 384 (8th Cir.2011), we addressed a sufficiency of the evidence challenge under section 2242(2). Pointing to the male victim's testimony that the defendant began fellating him while he was asleep, we concluded that the victim's "testimony alone established] the elements of § 2242(2).” Id. at 387. We noted that "[o]nly [the defendant] testified that [the victim] was awake when oral sex began” and that "the jury evidently credited [the victim] over [the defendant].” Id. Thus, while the Betone court found the evidence sufficient to support all elements of a section 2242(2) conviction, it did not address the more discrete legal issue that Bruguier raises: whether "knowingly” in section 2242(2) requires a defendant to have knowledge of a victim’s incapacity or inability to grant consent. . Flores-Figueroa relied heavily on the Supreme Court’s earlier decisions in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) and Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). See Flores-Figueroa, 556 U.S. at 652-53, 129 S.Ct. 1886. X-Citement Video involved a statute that, like section 2242(2), had a dash between the term "knowingly” and some of the other elements. See X-Citement Video, 513 U.S. at 68, 115 S.Ct. 464. . Congress has since amended the three statutes in ways not relevant to this case. See, e.g., Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, §§ 205-07, 120 Stat. 587, 613-15 (increasing penalties under each statute). . It is true that section 2243 creates an affirmative defense for a defendant who "reasonably believed that the other person had attained the age of 16 years,” while section 2242(2) does not mention affirmative defenses. Compare § 2243(c), with § 2242(2). We do not find this distinction significant, however, in light of the fact that section 2241 does not mention affirmative defenses but still explicitly limits the mens rea requirement. See § 2241.
RILEY, Chief Judge, with whom BRIGHT, Circuit Judge, joins, concurring. Although the circumstances for the victim are tragic and evoke sympathy, I must follow the law. Thus, I concur completely in the court’s opinion. I write separately to emphasize my view that the statute is not ambiguous, and, to the extent it is relevant, the legislative history decisively demonstrates the government was required to prove Bruguier knew the victim was “(A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, th[e] sexual act.” 18 U.S.C. § 2242(2). A. Statutory Language This case hinges on routine statutory construction. “As in all such cases, we begin by analyzing the statutory language.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 2156, 176 L.Ed.2d 998 (2010). “If the statute is clear and unambiguous ‘that is the end of the matter, for the court ... must give effect to the unambiguously expressed intent of Congress.’ ” Bd. of Governors of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Because “statutory language must always be read in its proper context,” McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991), whether a statute is unambiguous depends not only on “the particular statutory language at issue,” but also on “the language and design of the statute as a whole,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988); see also Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). A contextual reading of the “statute as a whole” demonstrates the knowledge requirement in § 2242(2) unambiguously applies to the circumstance of the victim’s incapacity. 1. The Act Congress passed § 2242(2) as part of the Sexual Abuse Act of 1986(Act), Pub.L. No. 99-646, § 87, 100 Stat. 3592, 3620 (1986) (codified as amended at 18 U.S.C. §§ 2241-44, 2246). The Act added three parallel sections to Title 18: § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), and § 2243 (sexual abuse of a minor or ward). See § 87, 100 Stat. at 3620-22. The court’s majority opinion demonstrates that these three sections share the same linguistic design. Given the three sections’ shared language and structure, the term “knowingly” — absent limiting language — must have the same basic reach in § 2242(2) as it' does in the two sections that bookend it. See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. —, -, 133 S.Ct. 2517, 2529, 186 L.Ed.2d 503 (2013) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its' structural choices.”); Comm’r v. Lundy, 516 U.S. 235, 250, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996) (“The interrelationship and close proximity of these provisions of the statute presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.” (internal quotation omitted)); cf. Clark v. Martinez, 543 U.S. 371, 386, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (refusing to “establish within our jurisprudence ... the dangerous principle that judges can give the same statutory text different meanings in different cases”). Statutory context also compels the conclusion that the term “knowingly,” absent specific limiting language, applies not only to the conduct element of each of the three crimes (i.e., “engaging] in a sexual act with another person”), but to the circumstances subsequently listed in each section: the other person’s age in § 2241(c), incapacity in § 2242(2), and age plus age difference in § 2243(a). Congress expressed this point unequivocally by adding specific limiting language to § 2241 and § 2243, but not to § 2242. See, e.g., Lindh v. Murphy, 521 U.S. 320, 330, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (“[Njegative implications raised by disparate provisions are strongest when the portions of a statute treated differently ... were being considered simultaneously when the language raising the implication was inserted.”). To § 2241, Congress added an affirmative statement that engaging in a sexual act with a child under the age of 12 is a strict liability crime: (d) State.of Mind Proof Requirement.— In a prosecution under, subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years. § 87, 100 Stat. at 3621 (codified at 18 U.S.C. § 2241(d)) (emphasis added). In § '2243, Congress affirmatively relieved the government of the burden of proving the defendant’s knowledge of the other person’s age and age difference while creating an affirmative defense available to a defendant who reasonably believed the other person was old enough: (c) Defenses. — (1) In a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years. (d) State of Mind Proof Requirement.— In a prosecution under subsection (a) Of this section, the Government need not prove that the defendant knew— (1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging. § 87, 100 Stat. at 3621-22 (codified at 18 U.S.C. § 2243(e)-(d)) (emphasis added). Yet Congress added no affirmative language to relieve the government of its burden to prove the defendant’s knowledge in § 2242(2). Given “[t]he interrelationship and close proximity of these provisions of the statute,” Lundy, 516 U.S. at 250, 116 S.Ct. 647, the absence of any language limiting the reach of the term “knowingly” in § 2242(2) makes the text unmistakably clear: § 2242(2) is- not a strict liability crime. See, e.g., Field v. Mans, 516 U.S. 59, 75, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995) (“The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects.”). “Nothing, indeed, but a different intent explains the different treatment” of § 2242(2) and §§ 2241 and 2243. Lindh, 521 U.S. at 329, 117 S.Ct. 2059. 2. Congressional Intent The “immediately surrounding” sections show that if Congress intended to make § 2242(2) a strict liability crime, Congress knew exactly how to do so. Holder v. Humanitarian Law Project, 561 U.S. 1, -, 130 S.Ct. 2705, 2717, 177 L.Ed.2d 355 (2010); see, e.g., Medellín v. Texas, 552 U.S. 491, 522, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (“Such language demonstrates that Congress knows how to [achieve a particular result] when it desires such a result.”); Jama v. ICE, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (“Congress has demonstrated in yet other statutory provisions that it knows how to avoid [a result] by using language that explicitly [requires a different result].”). Elsewhere in the same statute at issue here, Congress affirmatively created a strict liability crime— § 2241(c) — and a quasi-strict liability crime— § 2243(a). Sections 2241(d) and 2243(d) lead to the inescapable conclusion that “Congress kn[ew] how to say [‘strict liability’] when it mean[t] to,” City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 329 n. 22, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981), and Congress did not mean to say so in § 2242(2). It is inconceivable that Congress meant to create a strict liability crime by omission in one section of a statute when Congress affirmatively created strict liability crimes by inclusion in the immediately preceding and immediately following sections of the same statute. “If Congress had desired to make” § 2242(2) a strict liability crime, “it could have used language similar to that which it invoked in” § 2241(d). Nassar, 570 U.S. at -, 133 S.Ct. at 2529. “Or, it could have inserted” provisions similar to § 2243(c) and (d) to make § 2242(2) a quasi-strict liability crime. Id. “But in writing” § 2242(2), “Congress did neither of those things, and ‘[w]e must give effect to Congress’ choice.’ ” Id. (alteration in original) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 n. 3, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)). 3.Statutory Background Looming large over Congress’ drafting of the Act was the Supreme Court’s “landmark opinion in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952),” in which “the Court used the background presumption of evil intent to conclude that the term ‘knowingly’ ” applied well beyond its “isolated position” in the statute at issue. United States v. X-Citement Video, Inc., 513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). Just eighteen months before Congress passed the Act, the Supreme Court in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), reminded Congress of Morissette’s “background presumption.” There, the Supreme Court considered whether the term “knowingly” applied to the phrase “in any manner not authorized by [the statute]” in a federal food stamp statute making it a crime to “knowingly use[ ], transfer[ ], acquire[ ], alter[], or possess[] coupons or authorization cards in any manner not authorized by [the statute] or the regulations.” Id. at 420-21, 105 S.Ct. 2084 (emphasis added) (last alteration in original) (quotation omitted). “The Court held that it did, despite the legal cliche ‘ignorance of the law is no excuse.’ ” Flores-Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (citing Liparota, 471 U.S. at 433, 105 S.Ct. 2084). Legislating amid this backdrop, Congress obviously knew that to make § 2242(2) a strict liability statute would require affirmative language — exactly the sort of affirmative language Congress used in §§ 2241(d) and 2243(d), but did not add to § 2242. See United States v. U.S. Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (“Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”). In accordance with “the interpretive assumption that Congress knows how [the courts] construe statutes and expects [the courts] to run true to form,” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-58, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007), we must reject the government’s request to construe § 2242(2) in a way Congress could not reasonably expect and evidently did not intend. 4.Grammar The dissent sidesteps these “conventional doctrines of statutory interpretation,” Lamie v. U.S. Tr., 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004), and builds its case on what it terms “the natural grammatical reading of § 2242(2),” post at 777. The dissent’s “natural” reading is not so natural. First, the dissent’s eise-gesis of X-Citement Video ignores how the Supreme Court itself has interpreted that case. In Flores-Figueroa, for example, the Supreme Court (1) referred to “[t]he language in issue in X-Citement Video ” as relatively “ambiguous”; (2) cited Justice Stevens’ X-Citement Video concurrence, which said “the normal, commonsense reading” is to apply a criminal statute’s knowledge requirement to every element following the word “knowingly,” 513 U.S. at 79, 115 S.Ct. 464; and (3) considered X-Citement Video’s holding (as opposed to the few lines of contrary dicta on which the dissent relies) to be “fully consistent with ... ordinary English usage.” Flores-Figueroa, 556 U.S. at 652-53, 129 S.Ct. 1886. Second, the dissent’s reliance on “inter-ruptive punctuation,” post at 776, is misplaced. As the Supreme Court and our court have said “[o]ver and over,” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” United States v. Heirs of Boisdoré, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850) (quoted most recently in Maracich v. Spears, 570 U.S. -, -, 133 S.Ct. 2191, 2203, 186 L.Ed.2d 275 (2013) and United States v. Jungers, 702 F.3d 1066, 1069-70 (8th Cir.2013)). “No more than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute’s meaning.” U.S. Nat’l Bank of Or., 508 U.S. at 455, 113 S.Ct. 2173. Considering a statute in which “knowingly” was separated by the same “inter-ruptive punctuation” — the dash — at issue here and in X-Citement Video, the Supreme Court observed “[tjhis is not a case where grammar or structure enables the challenged provision or some of its parts to be read apart from the ‘knowingly’ requirement. Here, ‘knowingly’ introduces the challenged provision itself, making clear that it applies to that provision in its entirety.” United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis added) (analyzing 18 U.S.C. § 2252A(a)(3)). Even if the dissent’s grammatical analysis were correct, that would not outweigh the unambiguous contextual meaning of § 2242(2). See McCarthy, 500 U.S. at 139, 111 S.Ct. 1737. Grammar provides clues, sometimes decisive, to what language means, but ungrammatical statements can be unambiguous and grammatical statements ambiguous — depending on context. See, e.g., Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 533, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002) (“[Wjhether [language] is plain ... is a question of context as much as grammar.”). Section 2242(2) might be “awkward, and even ungrammatical; but that does not make it ambiguous on the point at issue,” Lamie, 540 U.S. at 534, 124 S.Ct. 1023. We are not now, nor have we ever been, “a panel of grammarians.” Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960); see also, e.g., Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95, 2 L.Ed. 554 (1807) (Marshall, C.J.) (“[SJtrict grammatical construction .... is not entirely without its influence; but the sound construction which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision, and by the context.”). Reversing the Third Circuit’s decision in United States v. Palma-Ruedas, 121 F.3d 841 (3d Cir.1997), the Supreme Court explained formal grammatical analysis “cannot be applied rigidly, to the exclusion of other relevant statutory language.” United States v. Rodriguez-Moreno, 526 U.S. 275, 280, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). As then-Circuit Judge Alito.warned the Third Circuit in the Palma-Ruedas case, “Mather than relying on grammatical arcana, [courts] should ... look at the substance of the statutes in question.” Palma-Ruedas, 121 F.3d at 865 (Alito, J., dissenting). Heeding this prescient warning by applying “settled principles of statutory construction,” Carcieri v. Salazar, 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), our court properly rejects the dissent’s ad hoc grammatical analysis. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”). Because substance, context, and structure establish that § 2242(2) “is plain and unambiguous[,].... we must apply the statute according to its terms.” Carcieri, 555 U.S. at 387, 129 S.Ct. 1058. B. Legislative History Casting aside textual context and structure, the dissent invokes legislative history and relies on extra-statutory ephemera to reach a reading inconsistent with the text of the Act. See post at 779-81 (quoting H.R. 4876, 98th Cong. § 2 (1984); Sexual Abuse Act of 1986: Hearing Before the Subcomm. on Criminal Justice of the H. Comm, on the Judiciary (1986 Hearing), 99th Cong. 15, 41(1986); H.R.Rep. No. 99-594 (1986)). The dissent asserts these sources “show[] that the ‘knowingly’ requirement in § 2242(2) was not intended to apply to the defendant’s awareness of the victim’s incapacity.” Id. at 779. Even if that were true, “the authoritative statement is the statutory text, not the legislative history.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). It is especially objectionable to rely on legislative imponderables to “mak[e] criminal what the text would'otherwise permit.” Flores-Figueroa, 556 U.S. at 658, 129 S.Ct. 1886 (Scalia, J., concurring). A moment’s reflection reveals the fundamental unfairness of imprisoning anyone based on stray utterances dug from the recesses of the Congressional Record. After all, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). “This venerable rule,” id., “ensures fair warning.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (emphasis added). If the government must resort to “the statement of a single Member of Congress or an unvoted-upon (and for all we know unread) Committee Report” to convince a court that a statute criminalizes certain conduct, Flores-Figueroa, 556 U.S. at 658, 129 S.Ct. 1886 (Scalia, J., concurring), the statute cannot give anyone — except perhaps the lone Member of Congress or the committee. staffers who wrote the report— “fair warning,” Lanier, 520 U.S. at 266, 117 S.Ct. 1219. Regardless, a brief foray into the history of § 2242(2), not to mention a more careful reading of the dissent’s sources, shows the dissent’s reliance on legislative history is misplaced. Indeed, this is the rare case where legislative history, which is “usually] inconclusive,” Flores-Figueroa, 556 U.S. at 658, 129 S.Ct. 1886 (Scalia, J., concurring), provides a clear answer: Congress intended to require proof of a defendant’s knowledge of the victim’s incapacity. 1. Drafting History One of the principal sponsors of the Act testified in early House committee hearings that § 2242(2) was intended to make it a crime to “engag[e] in a sexual act with persons known by the offender to be incapable of appraising the nature of such conduct: those who are physically incapable of declining participation in or communicating unwillingness to engage in the sexual act.” Federal Rape Law Reform: Hearings Before the Subcomm. on Criminal Justice of the H. Comm, on the Judiciary (Hearings), 98th Cong. 80 (1986) (statement of Rep. Steny Hoyer (Hoyer statement)) (emphasis added). Explaining the legislative intent behind 18 U.S.C. § 2244(a) (making it a crime to “knowingly engage[ ] in or cause[ ] sexual contact with or by another person, if to do so would violate — ... (2) section 2242 ... had the sexual contact been a sexual act”), Representative Hoyer testified that § 2244(a) would protect “those who are known by the offender to be unable to appraise the nature of [the sexual] conduct whether by reason of mental disease or defect or of intoxication.” Hearings, supra, at 80 (Hoyer statement) (emphasis added). An early draft of the Act would even have inserted the phrase “known by the offender to be” into the statutory text itself. See H.R. 4876, 99th Cong. § 2. But Congress realized that phrase was redundant because § 2242(2) introduces all the elements and circumstances of the offense with the term “knowingly.” Congress drafted the Act “employing the format, conventions, and techniques used in drafting the Criminal Code Revision Act of 1980 [ (CCRA) ] reported by th[e] [House Judiciary] Committee in the 96th Congress.” H.R.Rep. No. 99-594, at 13 & n. 51. Explaining the Act’s drafting process, the House referenced the CCRA committee report: “[I]n the absence of language to the contrary, a knowing state of mind will be required for conduct, results, and circumstances.” H.R.Rep. No. 96-1896, at 35 (1980) (emphasis added); see H.R.Rep. No. 99-594, at 15 n. 59 (citing H.R.Rep. No. 96-1396, at 35). Consistent with its understanding “that the state of mind required for conduct w[ould] apply to circumstances and results unless otherwise specified,” H.R.Rep. No. 96-1396, at 34 (emphasis added), Congress specified otherwise in §§ 2241(d) and 2243(d). Congress was not alone in its belief that a specific exception was required to limit the knowledge requirement. See H.R.Rep. No. 99-594, at 15 n. 59, 18 n. 69; cf. U.S. Gypsum, 438 U.S. at 438, 98 S.Ct. 2864 (requiring “far more than ... simple omission ... to justify dispensing with an intent requirement”). The Department of Justice (Department) thought the same thing. See 1986 Hearing, supra, at 37, 38-39, 44 (statement of Mark M. Richard, Deputy Assistant Att’y Gen. (Richard statement)). Yet Congress did not specify otherwise in § 2242(2). The resulting conclusion is unavoidable: § 2242(2) requires proof of knowledge because “the state of mind required for the conduct — knowing—is also required for the circumstance of the victim’s” incapacity. H.R.Rep. No. 99-594, at 15 n. 59; see H.R.Rep. No. 96-1396, at 35. 2. Government’s Views This conclusion draws further support from the government’s position at the time Congress passed the Act. In initial committee hearings, an official “presenting] the views of the Department” testified that § 2242(2) would make it a crime to “engage[] in a sexual act with a person known by the offender to be incapable of appraising the nature of the conduct or physically incapable of declining participation in it.” Hearings, supra, at 95 (statement of Victoria Toensing, Deputy Assistant Att’y Gen.) (emphasis added). Although this official testified the Department recommended numerous amendments to the proposed legislation — including a reasonable belief defense in § 2243— neither she nor any other Department official ever expressed concern over the knowledge requirement in § 2242(2). See id. at 97; see also 1986 Hearing, supra, at 37-44 (Richard statement). To the contrary, testifying about the exact language used in the statute — after Congress, realizing the phrase was redundant, deleted “known by the offender to be” from a prior draft — another official “presenting] the views of the Department” explained that § 2242(2) criminalized “knowingly engaging in a sexual act with a person who is incapable of appraising the nature of the conduct or physically incapable of declining participation in it.” 1986 Hearing, supra, at 41 (Richard statement) (emphasis added). Even by the dissent’s “natural grammatical reading,” this official statement recognizes the knowledge requirement applies to the circumstance of the victim’s incapacity “since no independent clauses or interruptive punctuation marks indicate otherwise.” Post at 780. In contrast, the Department official described § 2241(c) and § 2243(a) without a similar knowledge requirement, recognizing that these crimes would not require the government to prove knowledge. See 1986 Hearing, supra, at 41 (Richard statement) (describing §§ 2241(c) and 2243(a) as making it a crime to “en-gag[e] in a sexual act with a person under twelve years of age” and to “engage[e] in a sexual act with a minor who is at least twelve but under sixteen years of age if the offender is at least four years older than the minor”). When Congress passed the Act, the government correctly understood that the knowledge requirement continued past the “interruptive punctuation” on which the government and dissent today construct their case. 3. Legislative Policies Congressional intent likewise reinforces our court’s reading of § 2242(2). The genesis of the Act was Congress’ recognition that federal law was becoming increasingly inconsistent with state law. See Hearings, supra, at 3-4 (statement of Rep. Robert Carr (Carr statement)). While federal law still relied on an obsolete definition of rape, by 1984 thirty-eight states had “reformulate[ed] [rape] into a crime of sexual assault.” Id. at 4. Michigan was the first state to do so, and Congress, finding Michigan’s reform effort particularly instructive, went so far as to hold a hearing in that state. See id. at 1, 4. Members of Congress worried that antiquated federal laws and modernized state laws criminalized different conduct, an imbalance of particular concern in Indian country. See, e.g., id. at 5; id. at 68 (Hoyer statement); id. at 71 (statement of Rep. Bobbi Fied-ler). Although the Act’s drafters considered the legal reforms of thirty-eight states, Congress looked to three states in particular: California, Maryland, and Michigan. See, e.g., 1986 Hearing, supra, at 6 (statement of Rep. Steny Hoyer); id. at 35 (statement of Rep. Bobbi Fiedler); Hearing, supra, at 3^ (Carr statement) (describing Rep. Hoyer’s effort to “take the Maryland experience into Federal law” and his effort to “do[] the same thing” with Michigan’s reforms). None of these states imposed strict liability in their state analogue to § 2242(2) at the time, nor do they today. These states hardly were unique. Contrary to the dissent’s selective quotation of Morissette, our law has not “long recognized an exception from traditional mens rea requirements for ‘sex offenses, such as rape,’ in which the victim’s status ... is determinative.” Post at 777 (emphasis added) (quoting 342 U.S. at 251 n. 8, 72 S.Ct. 240). Morissette actually explains that “sex offenses, such as rape, in which the victim’s actual age ” — not status — “was determinative” are one of the “few exceptions” to the mens rea requirement which “took deep and early root in American soil” and “was so inherent in the idea of the offense that it required no statutory affirmation.” 342 U.S. at 251-52 & n. 8, 72 S.Ct. 240 (emphasis added). In contrast to the narrow, statutory scienter exception for the historical crime of “statutory rape,” there is no Anglo-American tradition of imposing strict liability for sexual activity with an intoxicated or even unconscious individual. See, e.g., R v. Camplin, (1845) 169 Eng. Rep. 163 (C.C.) 164, 1 Den. 89, 91 (“[T]he crime of rape is committed by violating a woman when she is in a state of insensibility ... the accused knowing at that time that she is in that state.” (emphasis added)); Model Penal Code § 213.1 & cmt. 5 (Official Draft and Revised Comments 1980) (requiring proof the perpetrator was “at least reckless with respect to the [victim’s] unconsciousness”). Before Congress passed the Act,' federal law did not even criminalize knowing sexual assault of an intoxicated victim, much less impose strict liability. See 18 U.S.C. § 2031 (repealed 1986); Williams v. United States, 327 U.S. 711, 715, 66 S.Ct. 778, 90 L.Ed. 962 (1946) (requiring “force by the offender and ... an absence of consent by the victim”). Ignoring this context, the dissent emphasizes only that Congress wished to “ ‘modernize and reform Federal rape statutes,’ ” post at 781 (quoting H.R.Rep. No. 99-594, at 6). The dissent assumes strict liability is the most “modern” way to tackle society’s alarming rates of sexual assault. See post at 781-82. But Congress did not think so in 1986 when it enacted § 2242(2) and decided, in § 2243(c), to dilute the old federal rape law’s strict liability. Neither did Congress think so in 2011 when it amended the Uniform Code of Military Justice to require actual or constructive knowledge. See National Defense Authorization Act for Fiscal Year 2012, Pub.U No. 112-81, § 541(a)(3), 125 Stat. 1298,1404-05 (Dec. 31, 2011) (amending redesignated 10 U.S.C. § 920(b) to prohibit sexual acts “when the [perpetrator] knows or reasonably should know that the other person is [incapacitated]” (emphasis added)). Nor do the District of Columbia and the majority of states think so, including at least six of the seven states in our circuit, all of which have chosen not to make sexual activity with an intoxicated person a strict liability crime. Legislative history, to the extent it is relevant, confirms the court’s unambiguous reading of § 2242(2). C. Conclusion The unambiguous text of the statute, confirmed by the legislative history, required the government to prove Bruguier knew the victim was incapacitated. To avoid the unpleasant consequences of the district court’s failure to inform the jury of this requirement, the government “ask[s] us not to interpret” § 2242(2), “but to revise it.” Holder, 561 U.S. at -, 130 S.Ct. at 2718. This our court cannot do. See, e.g., Lamie, 540 U.S. at 538, 124 S.Ct. 1023 (“Our unwillingness to soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome is longstanding.”). “The remedy [the government seeks] lies with Congress and not with this Court. Congress may amend the statute; we may not.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). Our court has no choice under the law but to reverse Bruguier’s § 2242(2) conviction. . As Judge Richard S. Arnold said in his elegantly straightforward way, we judges are not empowered to "make law because we think a certain rule of law is a good thing.” Richard S. Arnold, Address at the Eighth Circuit Judicial Conference: The Art of Judging (Aug. 8, 2002), available