Safe Havens

The sexual abuse of a minor category clearly requires that the offense have an element of “abuse.”  Despite the emotional feeling about these offenses, there are reasonable bases to argue that some convictions involving sex and minors do not constitute “abuse,” as long as the victim either was an older teenager (15-17), or the record of conviction does not establish that s/he was not an older teenager.  First, consensual sex among older teenagers does not meet the “ordinary, contemporary, common meaning” of the term sexual abuse, given public acknowledgement of the high number of older teenagers who engage in consensual sex, and their level of sophistication about sex. They “understand the nature of the act.”[793] Second, counsel can attempt to establish that the statute at issue can be violated by conduct that is not sexual and/or egregious enough to rise to the level of “abuse,” as was found by the Ninth Circuit in Pallares-Galan.[794]

[793] See Baron-Medina, 187 F.3d at 1146.

[794] See United States v. Pallares-Galan, supra.