Aggravated Felonies

(A) Physical or Psychological Abuse.  Lack of physical contact does not bar a finding of “sexual abuse of a minor,” thus the abuse may be psychological in nature.  The BIA defined indecent exposure, with no contact, as sexual abuse of a minor in Matter of Rodriguez-Rodriguez.[628]  The Ninth Circuit in Baron-Medina,[629] included as “sexual abuse of a minor” an act with a child under 14 that does not necessarily involve touching between the two parties.[630]  The Seventh Circuit has defined solicitation of a sex act, committed by words alone, to be sexual abuse of a minor.[631]

Counsel can argue, however, that any mental harm suffered must be of a certain level before it will be considered “abuse.”  The federal sexual abuse statute, adopted by several courts as a guide, limits mental abuse to “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.”[632] 

[628] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).

[629] United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999).

[630] See also United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (“We distinguished between sexual abuse of a minor, which does not require the use of force and ‘forcible sex offenses,’ which do.”).

[631] Gattem v. Gonzalez, 412 F.3d 758, 768 (7th Cir. June 20, 2005).

[632] 18 U.S.C. § 3509(a)(5).