Safe Havens

 

(G)  Federal Statutes as a Possible Source of Definition.  Courts are divided as to whether and to what extent the aggravated felony “sexual abuse of a minor” will be defined by the federal criminal statute entitled “sexual abuse of a minor” or related statutes.  Where that issue has not been decided, or where courts have at least considered the federal statute in making their decisions, counsel can argue that convictions under state statutes that are not analogous to the federal statutes should not be aggravated felonies.  The Model Penal Code also may provide a basis for developing a definition of “sexual abuse of a minor.”

 

            Three federal statutes describe sexual attack or misconduct regardless of the age of the victim: “aggravated sexual abuse” (which replaced rape in the federal penal code); “sexual abuse;” and the least serious “abusive sexual misconduct.”  One federal statute describes sex with an underage person: “sexual abuse of a minor,” penalizing sex with a person from 12 to 15 years of age by a person at least four years older, including a defense of proving that the perpetrator wrongly believed the victim was 16 years of age or older.[770]  This statute does not criminalize — at all — sex with a person 16 years of age or older.  The Model Penal Code and the common law also have definitions of sexual abuse of a minor.  

Title 18 U.S.C. § 2243 sets out a federal statutory offense entitled “sexual abuse of a minor.”  This offense is essentially statutory rape, in that there is no requirement of force, violence, or incapacitation.  Section (a) defines sexual abuse of a minor as knowingly engaging or attempting to engage in a “sexual act” with a person who:

 

·        is 12 but not yet 16 years old; and

·        is at least four years younger than the perpetrator.

 

It is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person was at least 16 years old.  It is also a defense that the parties were married to each other.[771]  The defendant has the burden of proof as to these defenses.[772]

 

Using this federal statute as a model definition for the aggravated felony sexual abuse of a minor would offer benefits to some persons convicted of statutory rape, because the federal law limits the age of the victim and actor in ways that state statutory rape definitions sometimes do not.  While the victim must be under the age of 16 and the actor over four years older under federal law, some state offenses allow conviction where the victim is under the age of 18 and the defendant has a wider age range than under the federal statute. 

 

            A divided Board of Immigration Appeals rejected the use of the federal statutory offense “sexual abuse of a minor,” but did take its definition from another far broader non-criminal section of federal law dealing with the rights of child victims and child witnesses.[773]  That definition includes any sexually lascivious conduct with a child.

 

            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.[774]  Common law defined statutory rape to include intercourse with a female under the age of 10.[775]  Significantly, American legal scholars have noted that in “the vast majority of states the age of consent is fifteen or sixteen.”[776]

Both the Model Penal Code and common law require sexual intercourse as an essential element of this offense.  The federal statute described above[777] includes the more encompassing “sexual act,” which includes any penetration and oral sex, as well as touching intimate body parts not covered by clothing of a person under the age of 16.[778]  The Ninth Circuit and the BIA, however, have ruled that intercourse is not required, and even physical contact is not required, for sexual abuse of a child.[779]

[770] See generally 18 U.S.C. § § 2241-2248.

[771] 18 U.S.C. § 2243(c).

[772] 18 U.S.C. § 2243(d).

[773] See 18 U.S.C. § 3509(a).

[774] 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 . . . .”

[775] See Charles E. Torcia, wharton’s criminal law § 285, Statutory Rape.

[776] 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.

[777]  18 U.S.C. § x2243.

[778]“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 genitals of someone under the age of 16 with sexual or abusive intent.

[779] See United States v. Baron-Medina, supra, and Matter of Rodriguez-Rodriguez, supra.