Aggravated Felonies

 

(B)  As a Crime of Violence.[682]  The BIA and some federal courts have found that statutory rape is a crime of violence, at least when the victim was a relatively young person, age 16 or younger.  Statutory rape, as generally defined, does not have force as an element, and so does not constitute a “crime of violence” under 18 U.S.C. § 16(a).  This issue most often turns on whether the offense is substantially likely to involve force in its commission under 18 U.S.C. § 16(b).

 

(1)  Young Victims.  A number of courts have found sex with a minor to be a “crime of violence” under 18 U.S.C. § 16(b), where the victim is under 15 or 16 years old.  In those cases, the courts agree that, given the likely relative weakness and emotional immaturity of the younger child in relation to that of the victim, the offense involves a substantial risk that force will be used in the commission of the offense.[683]  Where the offense involves incest, the offense is usually found to be a crime of violence as well.[684]

(2)  Older Victims and Consent.  The Seventh and Ninth[685] Circuits, at least,[686] have distinguished between statutory rape involving a young child, and statutory rape where the victim may be just one day shy of 18 years old.

 

In Xiong v. INS, [687] the Seventh Circuit, following an earlier decision in the sentencing context,[688] found that statutory rape does not necessarily involve a substantial risk that force will be used in commission of the offense where the statute may be violated by consensual sex between a 15-year-old and an 18-year-old, and a condom is used to prevent pregnancy or sexually transmitted disease.

 

The Ninth Circuit originally decided, in Valencia v. Gonzalez[689] (Valencia I) that a violation of California Penal Code § 261.5(c), punishing sex with a minor under 18 and three years younger than the actor, was a crime of violence as defined under 18 U.S.C. § 16(b), based upon earlier decisions in the sentencing context finding that statutory rape involved a substantial risk of physical injury.[690]  However, following the decision of the United States Supreme Court in Leocal v. Ashcroft,[691] the court drew a distinction between the potential risk of injury that may result from the offense (in the form of pregnancy or sexually transmitted disease), and the potential risk that force may be use in the commission of the offense itself.  The court found, in Valencia II, that, “[w]hen the victim actually consents to the sexual contact, it cannot reasonably be said that there is a substantial risk that physical force ‘might be required in committing the crime.’”[692]

 

The Ninth Circuit subsequently withdrew Valencia II, and issued a new opinion that added additional analysis to support the holding that statutory rape is not necessarily a crime of violence.  The key distinction the court drew was between the ability of an older teen to give actual versus legal consent:

 

[W]e find the reasoning of the Second and Fifth Circuits somewhat mechanical in equating a victim’s legal incapacity to consent with an actual unwillingness to be touched, and deriving therefrom a substantial risk that physical force may be used in committing the offense. In Chery, for example, the statute of conviction criminalized sexual intercourse with a victim under the age of sixteen by a perpetrator two years older, sexual intercourse with a victim who is mentally incapacitated or physically helpless, or a guardian’s sexual intercourse with his or her minor ward. See [Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003)]. Thus, the conduct criminalized by the statute included sexual intercourse with a willing minor.  The court found that the statute categorically involved a risk that force may be used to accomplish the sexual intercourse with the victim. Id. at 408 (citing [Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir. 2000)]). Even though the victim might voluntarily engage in the sexual intercourse, the court found a substantial risk of force because the victim cannot consent. Chery, 347 F.3d at 408-09.

 

Underlying this reasoning is the assumption that a minor’s legal incapacity implies that the proscribed sexual intercourse is non-consensual. See, e.g., Chery, 347 F.3d at 409 (“[I]t is obvious that such crimes ... are generally perpetrated by an adult upon a victim who is not only smaller, weaker and less experienced, but is also generally susceptible of acceding to the coercive power of adult authority figures.”) (quoting [United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)]) (alteration in original). But even then, the equation of legal and factual non-consent mixes considerations of physical disparity (“smaller” or “weaker”) with considerations of mental or emotional disparities (“less experienced,” “authority figures”). While this assumption may be valid where the minor is a younger child, see, e.g., [United States v. Reyes-Castro, 13 F.3d 377,  379 (10th Cir. 1993)], it does not hold true where the victim is an older adolescent, who is able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. See United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004) (distinguishing factual and legal consent for purposes of determining whether statutory rape is a crime of violence under U.S.S.G. §   4B1.2); United States v. Dickson, 346 F.3d 44, 51-52 (2d Cir. 2003) (holding that unlawful imprisonment of a minor or incompetent adult is not a crime of violence under §   16(b), because the crime can be accomplished with the victim’s acquiescence). Therefore, while we agree that the “non-consent of the victim” is the “touchstone” for §   16(b) analysis, it is the victim’s actual non-consent that counts.  Valencia III, at 1050-1051.

 

Where this issue has not yet been decided in the immigration context, counsel can argue for the Ninth Circuit’s distinction between actual and legal consent.  Even in the circuits that have addressed this issue already, counsel can argue in the immigration context that Leocal requires that the issue be revisited.

 

(3)  Disparate Ages.  Many courts, often in dictum, point to a great disparity between the ages of the victim and the actor as an “aggravating factor” that increases the likelihood that physical force will be used in the commission of the offense, or that physical injury will result.[693]  In Valencia III, on the other hand, the Ninth Circuit noted that,

 

an increase in the age of the perpetrator, holding the victim’s age constant, does not ineluctably increase the risk that physical force may be used to commit the crime of statutory rape. Certainly, when a forty-year-old has sex with a seventeen-year-old, it is more morally opprobrious to the State than when a twenty-year-old does. Moreover, an increase in the age of the perpetrator increases the likelihood that he will use “experience” or an “authority position” to seduce the minor.  It may thus increase the risk of guile, wiles, or deception in manipulating the minor to have sex. It may increase the risk that the perpetrator will corrupt the young person’s “virtue,” by leading him or her into a debauched life.  It may also increase the risk that the victim will sustain a sexually transmitted disease.

 

But none of these factors create a greater probability that the offense of unlawful sexual intercourse involves a substantial risk of the use of physical force. If anything, the contrary would seem to be true, as a forty-two-year-old is no more likely to use physical force than a twenty-two-year-old, and is probably less capable of doing so.[694]

 

Thus, counsel can argue that statutory rape against an older teen is not a crime of violence, regardless of the age of the actor.

 

(4)  Immigration v. Sentencing Context.  The Ninth Circuit in Valencia III drew a strong distinction between cases arising in the immigration context, where “crime of violence” is defined under 18 U.S.C. § 16(b) as an offense that by its nature involves a substantial risk that force will be use in commission of the offense, and a number of cases decided in the sentencing context where the definition turns upon whether the statutory rape involves a potential risk of injury as a result of the offense.  Including pregnancy and sexually transmitted disease as potential injuries that may result from statutory rape, the court stated that:

 

The risk that physical force may be used is one that a minor’s actual consent removes because, where the minor actually consents to sexual intercourse, force will not be necessary to overcome the minor’s resistance.

 

Actual consent, however, will not remove the potential risk of physical injury. As we held in Asberry, statutory rape exposes a minor to “serious potential risks of physical injury” in the form of pregnancy and sexually transmitted disease. [United States v. Asberry, 394 F.3d 712, 717-18 (9th Cir. 2005)]. These risks are present even if the minor knowingly and voluntarily consents to engage in sexual intercourse. Indeed, part of the reason for statutory rape laws is that minors have consensual sex without full regard for these risks, thereby suffering injury themselves and imposing costs on society.  See [Michael M. v. Super. Ct., 25 Cal .3d 608, at 612, 614-15 (1979), aff’d by 450 U.S. 464 (1981)]. Thus, statutory rape poses risks of physical injury, but does not, by its nature, involve a substantial risk of the use of physical force to commit the offense.[695]

 

However, the Seventh Circuit has also held that statutory rape is not necessarily a crime of violence for sentencing purposes.[696]  Applying the same “crime of violence” definition at issue in Asberry, the Seventh Circuit held that statutory rape did not always involve a substantial potential risk of injury.  The court rejected the argument that any sexual contact with a minor, who is legally unable to consent, presents a per se risk of injury.  The court noted that to accept this argument would mean that any unconsented touching is a felony crime of violence, including offenses like picking someone’s pocket.[697]  The court also noted that because of the wide variety of statutory rape laws, a conviction that would be considered to involve a per se risk of injury in one state might be completely legal in another.[698]  Additionally, where the statute of conviction includes sexual contact not amounting to intercourse, such as touching the buttocks through clothing, there is an even smaller chance that the offense would be likely to result in physical injury.[699]

 

[682] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[683] See, e.g., Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17 2003) (Connecticut conviction under Conn.G.S § 53a-71 for consensual sexual intercourse with a person under age 18 (statutory rape) is a crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, even though no harm was actually done to 14-year-old victim, since offense involves a substantial risk that physical force might be used against the victim in the course of committing the offense); Matter of B, 21 I. & N. Dec. 287 (BIA Mar. 28, 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”), citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995); cf. United States v. Reve, 241 F.Supp.2d 470 (D.N.J. Jan. 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of former N.J.S.A. § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony under former INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), in effect prior to IIRAIRA, for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a), and the government did not argue substantial risk under 18 U.S.C. § 16(b)).

[684] Cf. United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan 5, 2006) (violation of California Penal Code § 288(a), lewd act with a child under 14, found to be a crime of violence for sentencing purposes where the victim was the actor’s daughter); United States v. Martinez-Carillo, 250 F.3d 1101, 1106 (7th Cir. May 17, 2001) (“A child victim is likely to comply with the sexual request by or action of her father out of fear stemming from the belief that physical consequences will flow from noncompliance or simply because she trusts him not to do her wrong.  We find that incest presents an aggravating factor that evokes a serious potential risk of physical injury.”).

[685] Valencia v. Gonzalez, 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[686] See also United States v. Houston, 364 F.3d 243 (5th Cir. 2004); United States v. Saywers, 409 F.3d 732, 741 (6th Cir. 2005).

[687] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (intercourse with a 15-year-old is not a crime of violence).

[688] United States v. Shannon, 110 F.3d 382 (9th Cir. 1997) (en banc) (examining crime of violence definition under U.S.S.G. § 4B1.2).

[689] Valencia v. Gonzalez, 406 F.3d 1154 (9th Cir. May 12, 2005), withdrawn 431 F.3d 673 (9th Cir. Dec. 12, 2005), withdrawn 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[690] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).

[691] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) (Florida conviction of driving under the influence and accidentally causing serious bodily injury, in violation of Florida Stats. Ann. § 316.193(3)(c), did not constitute an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of a substantial risk that the defendant would intentionally use force in the commission of the offense).

[692] Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005), opinion withdrawn and superseded, Valencia III, 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[693] See, e.g., Xiong v. INS, 173 F.3d 601, 606 (7th Cir. 1999) (“Thus there is no apparent age difference for us to point to as an aggravating factor.”); United States v. Thomas, 159 F.3d 296, 299 (7th Cir. 1997) (“Most states recognize that a substantial age difference is an aggravating factor.”).  Cf. Matter of KFD, 23 I. & N. Dec. 859 (BIA 2006) (“The respondent was convicted under a statute that criminalizes sexual activity between an adult who is 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.”).

[694] Valencia v. Gonzalez, 439 F.3d 1046, 1055 (9th Cir. Mar. 6, 2006) (internal citations and footnotes omitted).

[695] Id. at *5.  See also United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (Kentucky rape in the third degree, “statutory rape” in violation of Ky.Rev.Stat. § 510.060 is a “crime of violence” under U.S.S.G. § 2L1.2, as the Kentucky statute assumes lack of consent, and “sexual offenses by adults against children inherently involve physical force against children.”).

[696] United States v. Shannon, 110 F.3d 382 (9th Cir. 1997) (en banc) (examining crime of violence definition under U.S.S.G. § 4B1.2).

[697] Id. at 385.

[698] Id. at 386.

[699] Id. at 387.