Safe Havens

 

(A) Consensual sexual contact with an older teenager does not necessarily constitute “abuse.”   In United States v. Baron-Medina, the Ninth Circuit ruled that a conviction of committing a lewd act with a child under 14[795] constitutes an aggravated felony as sexual abuse of a minor.[796]  The court declined to define the common-law term according to the federal criminal statutory definition of sexual abuse of a minor.  The court stated “Rather, we must interpret the undefined term ‘sexual abuse of a minor’ by ‘employing the ordinary, contemporary, and common meaning of the words that Congress used’ . . . .” [797]  Several circuits have adopted a similar test. 

In Baron-Medina, the court used a categorical analysis of the offense, finding that California Penal Code § 288(a) would be an aggravated felony if and only if the “full range of conduct” covered by it falls within the meaning of “sexual abuse of a minor.”  It noted that this offense could include even touching that appeared “innocent” that was “innocently and warmly received” if it was effected with lewd intent, and could even include the defendant persuading the child to touch him- or herself, but with no physical contact between the defendant and the child.

 

Nevertheless the court found that all conduct under § 288(a) falls within the category of sexual abuse of a minor.  The conduct falls within the “common, everyday meanings” of the words “sexual” and “minor.”  In defining abuse, the court found simply that “[t]he use of young children as objects of sexual gratification constitutes an abuse.”  Even consensual sex is sexual abuse when it is with a child “too young to understand the nature of the advances,” which in this case was under the age of 14.[798]

 

            Counsel can argue that where older youth are concerned, the rationale of Baron-Medina does not apply.  A 16- and 19-year-old girlfriend and boyfriend or common law husband and wife who have sex can be convicted in many states. But that conduct does not necessarily meet the ordinary and contemporary meaning of “abuse,” i.e., maltreatment, ill-use, and damage.[799]  See § 7.101, infra.  In a different legal context, the Seventh Circuit held that sexual intercourse with a 15-year-old is not an aggravated felony as a “crime of violence,” although such conduct with a 13-year-old would be.[800]   Counsel must thoroughly research the law in the circuit to see if courts already have defined certain conduct with older youth to constitute sexual abuse.  Many of the published cases dealing with sexual abuse of a minor do not discuss the issue or involved younger children.

             (B)  Minor conduct, even if it involves sexual intent, does not always rise to the level of “abuse.”  In United States v Pallares-Galan, the Ninth Circuit set out further standards for determining when conduct with sexual intent rises to the level of sexual “abuse.”  The court held that for sentencing purposes, a conviction of annoying or molesting child under 18[801] was a divisible statute on the issue of whether a conviction under the statute would qualify as sexual abuse of a minor,[802] and concluded that “abuse” required some form of harm to the child.[803]  In making this decision, the Ninth Circuit defined the terms “sexual abuse” and “abuse” as applied to that section.  The case also sheds new light on what may be considered to constitute part of the record of conviction.  The Ninth Circuit held that the California statute penalizing annoying or molesting a child under 18, a misdemeanor offense, punished some offenses that would qualify as “sexual abuse of a minor” and others that would not.  Therefore, without a clear indication from the record of conviction that the noncitizen pleaded guilty to acts that would constitute “sexual abuse,” a conviction under that section will not be an aggravated felony.  The Second Circuit came to a similar conclusion.[804]

            As defined by the statute and subsequent case law, California Penal Code § 647.6(a) punishes, “[e]very person who annoys or molests any child under the age of 18 . . . .”  A conviction under this section requires “an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children.”[805]  The term “molest” is a general synonym for “annoy.”[806]  Annoy means, “to disturb or irritate, especially by continued or repeated acts; to weary or trouble; to irk; to offend . . . .”[807]  To molest means, “to interfere with or meddle with unwarrantably so as to injure or disturb.”[808]  “Annoyance or molestation signifies something that works hurt, inconvenience, or damage.”[809]

 

            Looking to the “ordinary, contemporary, and common meaning of the words Congress used,” the Ninth Circuit found the definition of “sexual abuse” to be, “illegal sexual acts performed against a minor by a parent, guardian, relative, or acquaintance.”[810]  The  court defined “abuse” as, “misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on . . . the act of violating sexually . . . [and] rape or indecent assault not amounting to rape.”[811]  Comparing these definitions, the court concluded that a person could annoy or molest a child under 18 without causing injury, hurt, or damage to the child.[812]  The court found that the mere use of words, while possibly annoying, do not necessarily constitute sexual abuse.[813]  The court also found that “mere solicitation of a sexual act” would not necessarily constitute sexual abuse.[814]

 

            The court identified a number of instances in which a defendant had been convicted under California Penal Code § 647.6(a) for acts that would not constitute “sexual abuse” as defined by the court.  These acts included “repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her,  . . . offer[ing] a thirteen year old boy a ride home and unsuccessfully solicit[ing] a sexual act from him while the two were in the vehicle . . . .”[815]  The court additionally noted that a person urinating in a public place, where a child happens to see him, could be convicted under California Penal Code § 647.6(a), but that act would not qualify as “sexual abuse.”[816]

            The court rejected the ICE argument that all offenses that require the defendant be motivated by a desire for sexual gratification qualify as sexual abuse.  The court found that sexual abuse “requires more than improper motivation; it requires conduct that is abusive.”[817]

 

            The court was not specific about what acts can and cannot constitute sexual abuse of a minor, and did not state that sexual abuse cannot be committed by words alone.  However, the court does require that the child have been somehow injured, hurt or damaged by the actor’s conduct, and not merely disturbed, irritated, or inconvenienced.

 

            Unfortunately, several months later a Ninth Circuit panel failed even to discuss Pallares-Galan in holding that a conviction under a statute that could be violated by touching a 15-year-old’s thigh through clothing was sexual abuse of a minor. This illustrates the illogical results that can occur absent the sensible test set out in Pallares-Galan.  In United States v. Granbois, [818] the court defined “sexual abuse of a minor” for purposes of the “crimes of violence” category under federal sentencing Guidelines.[819]  First, the Court cited Baron-Medina for the proposition that any sexually motivated conduct, even without physical touching, directed toward a child under the age of 13 is sexual abuse of a minor.  Next it cited United States v. Pereira Salmon, another Ninth Circuit case, that held that a Virginia statute prohibiting sexual intercourse or oral sex with a child under the age of 16 is sexual abuse of a minor.[820]  The Granbois court concluded that it was bound by Pereira-Salmeron to find that any sexual conduct, no matter how minor, with a child under age 16 and at least four years younger than the defendant is sexual abuse of a minor. 

            The holding in Granbois is troubling for two reasons.  First, the Court did not discuss why a statute prohibiting sexual intercourse or oral sex should control in a case involving a statute that prohibited touching a thigh through clothing, when the victim was 15 years old, not 12 years old.   Second, Granbois did not discuss the Ninth Circuit decision in United States v. Pallares-Galan. Therefore, it did not take the opportunity even to discuss whether, in the contemporary and common understanding of sexual behavior, a boyfriend’s touching his 15-year-old girlfriend’s inner thigh through clothing would be abusive, in the sense of causing damage to, the 15-year old.

 

            Likewise, if the court in Baron-Medina had had considered the principles set out in Pallares-Galan, it might have reached a different result.[821]  While Baron-Medina clearly establishes that a violation of California Penal Code § 288(a) would constitute a crime involving moral turpitude, it did not conduct a careful examination the term “abuse” by reference to the common, everyday meaning of the term, as was done in Pallares-Galan.[822]

 

Applying the definition in Pallares-Galan, California Penal Code § 288(a) is a divisible statute, and a conviction under that statute cannot sustain a finding that the respondent has been convicted of a sexual abuse of a minor aggravated felony without examining the record of conviction and finding that it shows the defendant was convicted of “abuse.”

 

In Baron-Medina, the Ninth Circuit described the minimum conduct required for conviction under California Penal Code § 288(a):

 

Section 288(a) has two elements: (a) the touching of an underage child’s body (b) with a sexual intent.  People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037, 1042-1043 (1995).  However, under California law, the character of the touching, though perhaps circumstantially relevant to prove intent, is otherwise immaterial.  Martinez, 45 Cal.Rptr.2d 905, 903 P.2d at 1048.  Even an “innocuous” touching, “innocently and warmly received,” violates Section 288(a) if effected with lewd intent.  People v. Lopez, 19 Cal.4th 282, 79 Cal.Rptr.2d 1995, 965 P.2d 713, 717-718 (1998).  In fact, Section 288(a) can be violated by a person who does not himself touch the child, if the person, with the requisite intent, coerces the child to touch himself.  See People v. Imler, 9 Cal.App.4th 1178, 1182, 11 Cal.Rptr.2d 915, 917 (Cal.App. 2 Dist. 1992).[823]

Section 288(a) may therefore be violated by any touching accomplished with the intent of arousing the sexual desires of either the defendant or the child.  “Any part of the body may be the object of a sexual fetish.  Any touch, in fulfillment of such a fetish, is harmful to a child and prohibited by the statute.”[824]  Even an apparently innocent touching of a child’s hair, if done with sexual intent, is an act sufficient to sustain a conviction under California Penal Code § 288(a).[825]

 

Clearly, because a conviction under this statute may be sustained on the basis of any touching, however innocuous, a conviction may be sustained regardless of whether the touching resulted in “injur[y], hurt, or damage” to the victim.[826]  The motivation that underlies the conduct is irrelevant to the question of whether the conduct constitutes abuse.  It is rather the conduct itself that must be abusive.[827]

 

As established by California state case law, a person with a hand-fetish would be in violation of this statute by merely shaking hands with a child, as long as it was done with sexual intent.  This would be true even if neither the child, nor any other person present at the time of the act, was aware that the touch was done with the intent to satisfy the hand-fetishist’s sexual desires, and even if the hand shake caused absolutely no “injury, hurt or damage,” physical or otherwise, to the child.  Not every violation of California Penal Code § 288(a), therefore, necessarily encompasses conduct that could be called “abusive” under Pallares-Galan. 

 

[795] California Penal Code § 288(a).

[796] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).  California Penal Code § 288(a) provides that: “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this Code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”

[797] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999); accord, Cedano-Viera v. Ashcroft, 2003 WL 1542642 (9th Cir. March 26, 2003) (unpublished) (Nevada conviction of lewd act on a child, in violation of Nevada Revised Statute § 201.230(1) (1996), constituted sexual abuse of a minor and was therefore an aggravated felony justifying removal under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), depriving the court of appeals of jurisdiction to review a removal order).

[798] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).

[799] In a subsequent case, , the Ninth Circuit defined “abuse” in this context as “misuse . . . to use or treat so as to injure, hurt, or damage . . . .”  United States v Pallares-Galan, 359 F.3d at 1100 (citing Webster’s Third New International Dictionary 9 (3d Ed. 1981).  The Eleventh Circuit has defined “sexual abuse of a minor” as a “perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d at 1163.

[800] See Chue Xiong v. INS, 173 F.3d 601 (7th Cir., 1999) (consensual sex between an 18 year-old and his 15-year old girlfriend is not an aggravated felony as a crime of violence under 18 U.S.C. § 16), distinguishing United States v. Shannon, 110 F.3d 382, 388 (7th Cir., 1997) (consensual sex with 13-year old is such an aggravated felony).

[801] California Penal Code § 647.6(a).

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

[803] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. February 20, 2004). 

[804] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. § 767, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,” does not constitute sexual abuse of a minor under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of triggering deportability).

[805] People v. Lopez, 19 Cal.4th 282, 289 (1998). 

[806] People v. Pallares, 112 Cal.App.2d Supp. 895, 901 (1952). 

[807] Webster’s New International Dictionary, 2d ed. 

[808] Ibid.

[809] People v. Lopez, 19 Cal.4th at 290 (1998) (emphasis supplied). 

[810] United States v. Pallares-Galan, 359 F.3d at 1100 (9th Cir. 2004). 

[811] Id. (citing Webster’s Third New International Dictionary 9 (3d Ed. 1981). 

[812] United States v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004).

[813] Ibid.

[814] Id. at 1101-1102.

[815] Id. at 1101. 

[816] Ibid.

[817] Id. at 1101-1102.

[818] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).  For information on definitions under USSG § 2L1.2, see Note at the beginning of § 7.96, supra.

[819] USSG § 2L1.2 (2002). 

[820] United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (Virginia conviction of violating Va. Code § 18.2-63 is a crime of violence as sexual abuse of a minor).

[821] United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (“[t]he use of young children for the gratification of sexual desires constitutes an abuse . . . .  The use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order.”).

[822] United States v. Pallares-Galan, 359 F.3d at 1100 (9th Cir. 2004).

[823] Baron-Medina, 187 F.3d at 1147 (9th Cir. 1999). 

[824] People v. Diaz, 49 Cal.Rptr.2d 252, 254 (1996).

[825] People v. Sharp 36 Cal.Rptr.2d 117 (1994), cert. denied, 514 U.S. 1130, 115 S.Ct. 2006 (1995). 

[826] See United States v. Pallares-Galan, 359 F.3d at 1100 (9th Cir. 2004). 

[827] United States v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004).