Aggravated Felonies

 

(B)  Federal Definitions.  The definition adopted by the majority of the courts to address the issue, 18 U.S.C. § 3509(a)(8), defines the term “sexual abuse” as including: “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children . . . .”  Section 3509(a)(8), in turn, defines “sexually explicit conduct” as actual or simulated:

 

(A) sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or of opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person;

 

(B) bestiality;

 

(C) masturbation;

 

(D) lascivious exhibition of the genitals or pubic area of a person or animal; or

 

(E) sadistic or masochistic abuse . . . .

 

For purposes of this section, a “child” is defined as anyone under the age of 18 years old.[598]  The same section also includes definitions of “child abuse,”[599] “physical injury,”[600] and “mental injury.”[601]  This section is part of chapter 223 of Title 18, dealing with witnesses and evidence.  Section 3509 in particular defines how the testimony of children may be presented before the court.  This section does not define a criminal offense.

 

            Chapter 109A of Title 18 contains the federal criminal laws against sexual abuse.  Sexual abuse of a minor is punished under 18 U.S.C. § 2243, but applies only when the victim was between 12 and 16, and at least four years younger than the defendant.  If the victim is under twelve, the offense is punished under 18 U.S.C. § 2241(c), as aggravated sexual abuse.  Both these sections may be violated either by a “sexual act,” or “sexual contact.”[602]  A “sexual act” at its minimum includes touching, not through the clothing, of the genitalia with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.[603]  Sexual contact includes the intentional touching, either directly or through clothing of the “genitalia, anus, groin, breast, inner thigh, or buttocks,” with the same intent.

 

            Section 3509(a) is therefore broader in that it includes simulated sexual acts, non-substantive offenses, acts against children older than 16, but under 18, and other offenses, such as molestation and incest.

 

Model Penal Code § 213.3 is similar to 18 U.S.C. § 2243 in that it also requires the victim to be under 16 years of age and the perpetrator at least four years older.[604]  Common law defined statutory rape to include intercourse with a female under the age of 10.[605]  Significantly, American legal scholars have noted that in “the vast majority of states the age of consent is fifteen or sixteen.”[606]  Both the Model Penal Code and common law require sexual intercourse as an essential element of this offense.

[598] 18 U.S.C. § 3509(a)(2).

[599] “[T]he term ‘child abuse’ means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.” 18 U.S.C. § 3509(a)(3).

[600] “[T]he term ‘physical injury’ includes lacerations, fractured bones, burns, internal injuries, severe bruising, or serious bodily harm.” 18 U.S.C. § 3509(a)(4).

[601] “[T]he term ‘mental injury’ means harm to a child’s psychological or intellectual functioning, which may be exhibited by severe anxiety, depression, withdrawal or outward aggressive behavior, or a combination of those behaviors, which may be demonstrated by a change in behavior, emotional response, or cognition.”  18 U.S.C. § 3509(a)(5).

[602] See 18 U.S.C. § 2244 (abusive sexual contact).

[603] See 18 U.S.C. § 2246(2).

[604] American Law Institute, Model Penal Code, Offenses Against the Person, § 213.3, Corruption of minors and seduction: “(1) Offense Defined.  A male who has sexual intercourse with a female not his wife or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse is guilty of an offense if:  (a) the other person is less than 16 years old and the actor is at least four years older than the other person . . . .”

[605] See Charles E. Torcia, Wharton’s Criminal Law § 285, Statutory Rape.

[606] Judge Richard A. Posner, Katherine B. Silbaugh, A Guide to America’s Sex Laws (University of Chicago Press, 1986), p. 44.  This book contains a detailed analysis of age of consent among all the states, pp. 44-64.