Safe Havens

(D)  Child of 16 or 17 Years of Age.  To, date no published case has found that statutory rape is an aggravated felony under the “sexual abuse of a minor” theory where the victim was 16 or 17 years old.[848]  It is therefore possible that this may constitute a safe haven.  Moreover, even where the child is younger, if the statute of conviction also penalizes sex with a 16- or 17-year-old, the offense may be considered divisible.  If so, and the record of conviction does not establish the age of the child, and the court is not permitted to go beyond the record of conviction to establish the age of the child, the conviction may constitute a safe haven.

Where the victim is 16 or 17 years old, counsel can argue sex does not constitute abuse.  Only 12 states in the country maintain the age of consent for sexual penetration at age eighteen.  The majority of states place the age of consent for sexual relations at age 16.[849]  Counsel should argue that if the majority of states do not even criminalize sexual activity with a person who is 16 or 17, such activity cannot constitute sexual “abuse” according to the “ordinary, contemporary and common meaning of the words . . . .”[850]

            When a court takes as its standard the “ordinary, common and contemporary meaning” of a word, sociological information, as was used in the classic “Brandeis briefs,” becomes relevant. This includes statistics regarding the number of youth of different age groups in the United States who have had sexual experiences,[851] or evidence regarding the attitudes of Americans as to whether consensual sex with a 16- or 17-year-old necessarily constitutes abuse.  The public may wish that older teenagers did not engage in sex, and may even agree with criminalizing this conduct, especially as a misdemeanor.  However, they may not necessarily agree that a sexual relationship or any sexual contact at this age meets the definition of sexual abuse as it is commonly understood, committed against someone too young to understand the nature of the advances, since teenagers of this age range are not too young to make an informed consent or to understand what is going on.

The legislative history of the statute and the pattern of enforcement also may be relevant.  For example, the legislative history of amendments to the statutory rape law in California (prohibiting sexual intercourse with anyone under the age of 18) states that the purpose of the law is to save the state money by curbing the proliferation of teenage pregnancy.[852]  The vast majority of men charged under this statute are identified because the young woman involved becomes pregnant and applies for welfare.  The statutory rape charge and conviction is used as a means of forcing the man to pay child support.[853]  Because the history and purpose of this statute is so clearly based on saving public funds, as opposed to preventing sexual abuse of young children, it is arguable that this offense is not what Congress intended when it made “sexual abuse of a minor” an aggravated felony.

Fifth Circuit.  The Fifth Circuit has found that indecent exposure to a person under the age of 17 is an aggravated felony, even without physical contact.[854]

Seventh Circuit.  The Seventh Circuit recently found without analysis that an Illinois misdemeanor conviction for “criminal sexual abuse,” which requires “an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim,” was sexual abuse of a minor.[855]  It appears, however, that the defendant there did not argue that the crime did not constitute sexual abuse of a minor, relying instead on his assertion that he could not be found to be an aggravated felon based on a misdemeanor conviction — an argument that the court rejected.  Since the defendant did not argue this conviction substantively did not constitute sexual abuse of a minor, obviously the Seventh Circuit did not reject the argument that was not made. [856] 

Ninth Circuit.  In an unpublished case, the Ninth Circuit held that a California conviction of violating Penal Code § 261.5(c), which criminalizes sex with minors who are three years younger than the perpetrator, may not constitute aggravated felony sexual abuse of a minor under the categorical analysis, since the victim might be only one day younger than 18 years of age.[857]  “Even assuming California Penal Code § 261.5(c) is overly broad and fails the categorical test, Valdez-Camacho’s conviction nonetheless constitutes an aggravated felony under a modified categorical approach [since the complaint to which plea was entered established the victim’s age as 15, which constitutes sexual abuse of a minor under previous decisions].”   The court in Valdez-Camacho used the modified categorical analysis, and considered information from the record of conviction to find the victims were age 15 or younger and the defendants more than a few years older. 

[848] The Ninth Circuit found that statutory rape of a person under the age of 16 is an aggravated felony.  See United States v Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (in a case defining sexual abuse of a minor for purposes of the “crime of violence” enhancement under USSG § 2L1.2, court found conviction under a Virginia statute prohibiting sexual intercourse or oral sex with someone under the age of 16 is an aggravated felony). Immigration counsel may continue to raise the issue and attempt to distinguish Pereira-Salmeron and the even more strict United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004) (touching a 15-year-old’s inner thigh through clothing is sexual abuse of a minor) in the Ninth Circuit, for example, because they are based on an interpretation of the definition of a crime of violence in the Sentencing Guidelines — but at the same time should pursue post-conviction relief to eliminate the conviction on a ground of legal invalidity.  If the victim was 16 or 17, or where the record of conviction did not show the age of the victim, these cases do not necessarily force a conclusion that the conviction is an aggravated felony.  Thanks to Kathy Brady for this analysis.

[849] See Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Leg. J. 1, 59 (1997).  In compiling the various state statutes proscribing sexual relations with minors, the author cites the following figures for age of consent to sexual penetration: six states define the age of consent at 17; 30 states define the age of consent at 16; one state defines the age of consent at 15; one state defines the age of consent at 14.  Id. at 60.

[850] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1996).

[851] While social science research may provide the best information, law review articles also discuss this issue.  See, e.g., Lewis Bossing, Now Sixteen Could Get You Life: Statutory Rape, Meaningful Consent, and the Implications for Federal Sentencing Enhancements, 73 N.Y.U. L. Rev. 1205, 1226 1998.  The author cites studies in which fourteen-year old adolescents exhibited adult levels of competency in various tests, as well as the increasingly common access teenagers have to contraceptive care, prenatal care, and mental health counseling.  Id. at 1229.

[852] See Historical and Statutory Notes, following the annotated California Penal Code § 261.5, Stats 1996, ch. 789.  The 1995 act providing for greater enforcement is the “Teenage Pregnancy Prevention Act of 1995,” and the purpose is to offset the large increase in welfare payments that the state believes are the result of illicit sex with underage females.  See comment in section 1, part (b): “California spent $3.08 billion in 1985 to assist families headed by teenagers.  If those births had been delayed until the mothers were at least 20 years old, the state would have saved $1.23 billion in welfare and health care expenses.”

[853] See Kay Leslie Levine, Prosecution, Politics and Pregnancy : Enforcing Statutory Rape in California, Ph.D. Manuscript (2003),  University of California at Berkeley, Boalt Hall School of Law.  See also Caolyn E. Cocca, Jailbait: The Politics of Statutory Rape Laws in the United States (State University of New York Press, 2004).

[854] United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

[855] Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001).

[856] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[857] Valdez-Camacho v. Ashcroft, 110 Fed.Appx. 808, 2004 WL 2203948 (9th Cir. Sept. 29, 2004) (unpublished).