Argued: September 20, 2019
Amended: December 4, 2019
from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
Chief District Judge. (3:18-cr-00016-GMG)
Nicholas Joseph Compton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant.
Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY,
Martinsburg, West Virginia, for Appellee.
Kristen M. Leddy, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia,
William J. Powell, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for
AGEE, FLOYD, and QUATTLEBAUM, Circuit Judges.
QUATTLEBAUM, Circuit Judge:
address for the first time whether a conviction under South
Carolina's voyeurism statute constitutes a "sex
offense" requiring registration under the Sexual
Offender Registration Act ("SORNA"). Arguing it
does not, Helton moved to dismiss the indictment alleging
that he failed to register as a sex offender under SORNA. The
district court denied Helton's motion, holding that a
conviction under South Carolina's voyeurism statute
constitutes a sex offense requiring registration under SORNA.
appeal, our central question is whether a conviction under
the statute constitutes "a criminal offense that has an
element involving a sexual act or sexual contact with
another." 34 U.S.C. § 20911(5)(A)(i). The answer to
that question turns on the definitions of "sexual
act" and "sexual contact," which are not
provided by SORNA. Helton argues we should use the
definitions of those terms found in 18 U.S.C. § 2246, a
different federal statute. Under § 2246, "sexual
act" and "sexual contact" require physical
contact with another. Helton argues that since the South
Carolina voyeurism statute does not require such physical
contact, it is not a criminal offense involving a
"sexual act" or "sexual contact."
accepting Helton's argument would require us to rewrite
SORNA. Although Congress could have easily drafted SORNA to
limit "sexual act" and "sexual contact"
to conduct involving physical contact with another, it did
not, leaving those terms undefined. Keeping with our previous
decisions, we decline to apply the § 2246 definitions of
"sexual act" and "sexual contact" outside
of their place in Title 18 Chapter 109A, in the absence of
statutory language to do so. Instead, we define SORNA's
use of these terms in accordance with their ordinary meaning.
In doing so, it becomes clear that a violation of the
voyeurism statute-which does not require physical contact,
but does require the voyeuristic act to be in furtherance of
"arousing or gratifying sexual desire"-is a
criminal offense involving a "sexual act" or
"sexual contact" that requires registration under
these reasons, and as more fully described below, we affirm
the district court and conclude that a conviction under South
Carolina's voyeurism statute constitutes a sex offense
requiring registration under SORNA.
reviewing the facts of this case, we begin with an overview
of SORNA. Congress enacted SORNA "[i]n order to protect
the public from sex offenders and offenders against
children" by establishing "a comprehensive national
system for the registration of those offenders." 34
U.S.C. § 20901. This system requires those designated as
a "sex offender" under SORNA to register and keep
current their sex offender status in each jurisdiction where
they reside, are employees or are enrolled as students. 34
U.S.C. § 20913. A defendant violates 18 U.S.C.§
2250(a) if he (1) is a sex offender required to register
under SORNA, (2) travels in interstate commerce and (3)
knowingly fails to register or update his registration as
required by SORNA.
defines a "sex offender" as "an individual who
was convicted of a sex offense." 34 U.S.C. §
20911(1). To define "sex offense," SORNA identifies
five categories of conduct:
(i) a criminal offense that has an element involving a sexual
act or sexual contact with another;
(ii) a criminal offense that is a specified offense against
(iii) a Federal offense (including an offense prosecuted
under section 1152 or 1153 of Title 18) under section 1591,
or chapter 109A, 110 (other than section 2257, 2257A, or
2258), or 117, of Title 18;
(iv) a military offense specified by the Secretary of
Defense under section 115(a)(8)(C)(i) of Public Law 105-119
(10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense
described in clauses (i) through (iv).
34 U.S.C. § 20911(5)(A)(i)-(v). Any conduct that falls
within one of these five categories, and does not trigger one
of the two narrow exceptions in § 20911(5)(B)-(C),
constitutes a "sex offense" under SORNA.
this backdrop, we turn to the facts of this appeal. In 2012,
Helton pled guilty to voyeurism in violation of S.C. Code
§ 16-17-470(B). He was sentenced to three years of
incarceration, with credit for time served and one year of
probation. In addition, SC Code § 23-3-430 required
Helton to register as a sex offender in South Carolina.
Following his release from prison, Helton moved to Virginia
but later relocated to West Virginia. In both states, Helton
registered as a sex offender under the applicable state laws.
when the West Virginia State Police later attempted to verify
Helton's address, they discovered that he no longer
occupied his last known West Virginia residence and was not
registered as a sex offender in any other state. They soon
determined that Helton had moved to Rockingham County,
Virginia without updating his registration in West Virginia
or re-registering in Virginia. Helton was subsequently
arrested by the Rockingham County Sheriff's Department
for failing to update his registration in West Virginia.
federal grand jury in West Virginia indicted Helton for
failing to register and update his registration as a sex
offender as required by SORNA, in violation of 18 U.S.C.
§ 2250(a). The indictment alleged that Helton was a sex
offender under SORNA because his voyeurism conviction in
South Carolina qualified as a sex offense.
moved to dismiss the indictment. He argued that because his
South Carolina voyeurism conviction did not feature an
element involving a "sexual act" or "sexual
contact," his conviction did not fall within SORNA's
definition of "sex offense." 34 U.S.C. §
20911(5)(A). Helton argued the definitions of "sexual
act" and "sexual contact" from 18 U.S.C.
§ 2246, which require physical contact with another,
should be used to define those terms under SORNA. He then
argued that since South Carolina's voyeurism statute does