United States v. Thayer, No. 21-2385 (7th Cir. 2022)

Thayer pled guilty to fourth-degree criminal sexual conduct under Minnesota law for groping his 14-year-old daughter while she slept. Thayer later moved to Wisconsin without registering as a sex offender. The government indicted him for failing to comply with the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. 20901, in violation of 18 U.S.C. 2250(a). The district court dismissed the indictment, finding the relevant section of SORNA categorically misaligned with Thayer’s Minnesota statute of conviction. SORNA’s “Romeo and Juliet” exception excludes from the definition of “sex offense” consensual sex where “the victim was at least 13 years old and the offender was not more than 4 years older than the victim.” The Minnesota statute under which Thayer was convicted criminalizes sexual conduct both where “the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant” and where “the actor is … in a current or recent position of authority over the complainant.”

The Seventh Circuit vacated the dismissal. Section 20911(5)(A)(ii), as applied through section 20911(7)(I), must be analyzed under the circumstance-specific method, not by a categorical approach. Section 20911(7)(I) directs courts to evaluate the nature of an individual’s conduct, not the nature of an offense or of a conviction.