(A)  Elements of the Aggravated Felony Category.  The aggravated felony definition includes “rape.”[707]  A conviction of committing sexual intercourse by force or serious threat will be held to be an aggravated felony.  The Ninth Circuit held that a conviction of rape while the victim was intoxicated, under California Penal Code § 261, is an aggravated felony as rape.[2]  The court dismissed arguments that because elements of rape under the federal sexual abuse law are not exactly coterminous with the elements of rape under the California statute, a conviction under the California statute was not “rape.”[708]  The court stated that it would define rape by “employing the ordinary, contemporary, and common meaning” of the term.  Citing Black’s Law Dictionary, it found that rape includes sexual intercourse with a person whose ability to resist has been substantially impaired by drugs. 

Possible sources for a standard definition are common law, the Model Penal Code, analogous federal statutory offenses, and texts summarizing the criminal law of many states.[709]  Rape involves sexual intercourse and is not simply a sexual assault on an adult.  Both the common law[710] and Model Penal Code[711] definitions of rape require sexual intercourse between a man and a woman effected through use of force (or, in the Model Penal Code, through force, serious threat, intoxicant, or a with a young child).  However, the federal offenses of “aggravated sexual abuse”[712] and “sexual abuse”[713] prohibit a broader range of behavior, defined as a “sexual act”: any penetration no matter how slight of genital or anal openings with penis, hands or objects; oral sex; and touching intimate areas not covered by clothing of persons under the age of 16.[714] 

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

[707] California Penal Code § § 261 and 262 define rape as sexual intercourse obtained by force, threat, intoxication, or other circumstances.

[708] Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000).

[709] For a proposal for how to create a definition of a general legal term in the aggravated felony statute — in this case, arson as a crime of violence — see Board Member Rosenberg, dissenting opinion in Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998).  See also discussion in K. BRADY, California Criminal Law And Immigration § 9.5 (2004).

[710] Charles E. Torcia, wharton’s criminal law, at I, Sexual Intercourse, § 276 (2004), in general.  “At common law, rape was the unlawful carnal knowledge of a woman by force and against her will.”  Id., § 277, Carnal Knowledge.  Rape requires the element of “carnal knowledge.”  Although some states still use the common-law expression, a growing number are coming to use the term “sexual intercourse.”

[711] model penal code, Crimes Against the Person, § 213.1, Rape and Related Offenses:

“(1) Rape.  A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct (through drugs or intoxicants); or (c) the female is unconscious; or (d) the female is less than 10 years old.”

[712] 18 U.S.C. § 2241 prohibits aggravated sexual abuse, which is defined in three sections as sexual acts committed: — § 2241(a) by force, violence, or threat of death, serious injury or kidnapping — § 2241(b) by other means, such as rendering the victim unconscious or substantially impaired by intoxicants, or if the victim already is unconscious; and — § 2241(c) with children under the age of 12.

[713] 18 U.S.C. § 2242 prohibits sexual abuse, which is a “sexual act” made under certain circumstances less severe than in aggravated sexual abuse: — by threatening or placing the person in fear (other than by threatening or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or — if the person is incapable of appraising the nature of the conduct, or physically incapable of declining participation in or communicating willingness to engage in, that sexual act.

[714] “Sexual act” is defined by 18 U.S.C. § 2246 and includes: (A) penetration, however slight, between the penis and the vulva or anus; (B) oral sex; (C) penetration, however slight, of the anal or genital opening by hand or any object with sexual or abusive intent; or (D) intentional touching, not through clothing, of the genitals of someone under the age of 16 with sexual or abusive intent.

First Circuit

AGGRAVATED FELONY - RAPE -- STATUTORY RAPE
Silva v. Gonzales, 455 F.3d 26 (1st Cir. Jul. 14, 2006) (Massachusetts conviction of statutory rape of 14-year-old girl, under Mass. Gen. Laws ch. 265, 23 ["unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age"], was held in immigration court to be a "rape" aggravated felony for immigration purposes; since respondent did not challenge this conclusion, he waived any objection to removal on this basis).

AGGRAVATED FELONY - RAPE - STATUTORY RAPE - AGGRAVATED FELONY "RAPE" CONCEPT INCLUDES "STATUTORY RAPE"
Silva v. Gonzales, 455 F.3d 26, 2006 WL 1954969 (1st Cir. Jul. 14, 2006) (Massachusetts conviction of statutory rape of 14-year-old girl, under Mass. Gen. Laws ch. 265, 23 ["unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age"], constituted "rape" aggravated felony, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for deportation purposes) (dictum) ("Here, the statute of conviction, Mass. Gen. Laws ch. 265, 23, specifically terms the crime of conviction "[r]ape." Under the explicit language of the INA, all rape-including statutory rape-comes within the aggravated felony taxonomy. See 8 U.S.C. 1101(a)(43)(A); see also Mattis v. Reno, 212 F.3d 31, 34-35 (1st Cir.2000) (superseded on other grounds) (holding that statutory rape . . . is an aggravated felony under INA 101(a)(43)(A)). It follows inexorably that the petitioner's state-court conviction was properly classified as a conviction for an aggravated felony.").

This analysis is plainly incorrect. It reasons that because the state labels an offense a certain way, the offense falls within the federal aggravated felony term. Many decisions, however, clearly hold that whether a crime falls within the federal definition is a matter of federal law, and the state label attached to the offense is irrelevant. See N. Tooby & J. Rollin, Aggravated Felonies 4.37 (3d Ed. 2006).

Fifth Circuit

AGGRAVATED FELONY " RAPE " REQUIREMENT OF SEXUAL INTERCOURSE " DIGITAL PENETRATION INSUFFICIENT
Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. Jan. 12, 2012) (Montana conviction of felony sexual intercourse without consent, in violation of Mont.Code Ann. 45"5"503(1), knowingly have sexual intercourse without consent with a person of the opposite sex, not his spouse, was not categorically rape within the meaning of the aggravated felony rape definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because digital penetration is not rape; and under modified categorical analysis, neither charging document nor order accepting guilty plea, under statute which punished any nonconsensual penetration of victim, be it penile, digital or mechanical, necessarily established that alien was convicted of crime constituting rape).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. Jul. 20, 2007) (California conviction for forcible rape, in violation of California Penal Code 261 (1990), is not necessarily a crime of violence for illegal re-entry sentencing purposes, since "[a] subsection of that statute defines duress as a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. Id. at 261(b) (emphasis added). It adds that [t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. Id.).

Note: The court here tries to distinguish United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.), and suggests that Beliew may be contrary to established Fifth Circuit precedent.

Lower Courts of Ninth Circuit

SAFE HAVENS " AGGRAVATED FELONIES " RAPE SAFE HAVENS " CRIMES OF MORAL TURPITUDE " INNOCENT INTENT
People v. Morales, 212 Cal.App.4th 583, 150 Cal.Rptr.3d 920 (2d Dist. Jan. 2, 2013) (reversing conviction of rape of an unconscious person, where under the precise language of the statute, a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person in violation of Penal Code 261(a)(4), but the record did not disclose whether the jury relied on the improper theory, or on the correct theory argued by the prosecutor, that the victim was unconscious because she was asleep, but the trial court did not err in refusing to give instructions that would have allowed the jury to consider his good faith, but mistaken, belief that the victim had consented to sexual intercourse with him).

Tenth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONTRIBUTING TO THE DELINQUENCY OF A MINOR BY UNLAWFUL SEXUAL CONTACT
Vargas v. Dep't of Homeland Sec., ___ F.3d ___ 2006 WL 1689293 (10th Cir. Jun. 21, 2006) (Colorado conviction of contributing to the delinquency of a minor, in violation of CRS 18-6-701, may be violated by encouraging a child to violated any state law, from jaywalking to murder; since conviction under this statute requires proof, as an element of the offense, of a specified predicate offense, it was proper to look to the charging document to determine the predicate offense; violation of CRS 18-6-701 where the predicate offense was a violation of C.R.S. 18-3-404(1)(A), unlawful sexual contact with a minor, constitutes an aggravated felony). http://laws.lp.findlaw.com/10th/059581.html