Aggravated Felonies

(C)  Depending Upon the Age of the Victim.  Federal law criminalizes engaging in specified sex acts as “aggravated sexual battery” when the victim is under the age of 12.[649]  The same acts committed against a victim between 12 and 16 years old is non-aggravated sexual abuse of a minor, and federal law does not even punish commission of those acts when the victim is older than 16.[650]  This scheme recognizes that acts committed against a very young victim may be considered extremely serious, where those same acts may simply be a normal (if regrettable) part of life when committed with an older teen.

As Judge Posner stated, in his dissenting opinion in Gattem v. Gonzalez:

The number of unmarried teenaged girls in this country who have engaged in sexual intercourse, let alone in oral sex, is in the millions;  for of all girls in 11th grade (few of whom would have turned 18), 53.1 percent have had sexual intercourse. Centers for Disease Control and Prevention, “Youth Risk Behavior Surveillance--United States 2003,” Morbidity & Mortality Weekly, May 21, 2004, p. 18.  Oral sex is even more common;  in a study of ninth graders, half again as many were found to have had oral as vaginal sex.  Bonnie L. Halpern-Felsher et al., “Oral Versus Vaginal Sex Among Adolescents:  Perceptions, Attitudes, and Behavior,” Pediatrics, Apr. 2005, p. 847.  Solicitation of such girls to engage in sex must be common.  That doesn’t make it right;  and circumstances of course alter cases:  the younger the girl, the older the man, and the more insistent or prurient the means of inducement employed, the likelier is the solicitation of an underage girl or boy for sex to be a serious crime even if the solicitation is unsuccessful.  But we cannot let our imaginations roam . . . . [651]

What may be considered “abuse” or “sexual abuse” may therefore differ upon the age of the victim.  This may explain the apparent inconsistency between Baron-Media, which dealt with an offense that must be committed against a child under the age of 14 years old, and Pallares-Galan, where the offense could be committed against anyone under 18 years old.  The Ninth Circuit, in fact, emphasized in Baron-Medina that the youth of the victim was what made the conduct inherently abusive.[652]

            Some courts might also take into consideration the degree of separation between the ages of the victims required to convict.  In Matter of VFD,[653] the BIA found that a Florida statutory rape conviction constituted sexual abuse of a minor where the statute criminalized activity between “an adult at least 24 years of age and a minor who is at least 7 or 8 years younger, i.e., 16 or 17 years of age. . . .  This is a significant age discrepancy that reflects the seriousness and exploitative nature of the crime.”[654]

[649] 18 U.S.C. § 2241(c).

[650] 18 U.S.C. § 2243.

[651] Gattem v. Gonzalez, 412 F.3d at 768 (2005).

[652] “The use of young children as objects of sexual gratification constitutes an abuse.  We reject the notion that the defendant in the Imler case did not abuse his young victims, or that Congress intended the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances.  [citation]  The use of young children as objects of sexual gratification is corrupt, improper and contrary to good order. [citation] It constitutes maltreatment, no matter what its form. [citation].”  United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999).

[653] Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006).

[654] Id. at 863.