The aggravated felony definition includes “rape.”[866]  This aggravated felony is not defined by reference to a federal statute, and the BIA has not yet adopted a “generic” definition of the offense.[867]  However, a conviction of committing nonconsensual sexual intercourse by force or serious threat will likely be held to be an aggravated felony.

 

Rape involves sexual intercourse and is not simply a sexual assault on an adult.  Both the common law[868] and Model Penal Code[869] 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 with a young child).  However, the federal offenses of “aggravated sexual abuse”[870] and “sexual abuse”[871] 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.[872] 

 

                It is debatable what other types of aggravated sexual assault or battery will be held to constitute the equivalent of rape.  The offense “rape” was added to the aggravated felony definition by IIRAIRA effective September 30, 1996, more than ten years after the federal statutory offense of “rape” had been eliminated and replaced by the federal statutory offense of “aggravated sexual assault.”[873]  Congress is presumed to have known that there was no federal statutory definition of rape, and was therefore arguably referring to rape under the common law or some other definition and not referring to the federal statute defining “aggravated sexual assault” at the time that it added rape to the aggravated felony definition. 

 

The Ninth Circuit has been expanding the boundaries of what it will consider aggravated felony “rape.”  The court first held that a conviction of rape, while the victim was intoxicated, qualified as aggravated felony rape.[9]  The court dismissed the suggestion to define rape by reference to a federal rape statute.[874]  The court stated that it would define rape by “employing the ordinary, contemporary, and common meaning” of the term, and found that “[i]n ordinary usage, rape is understood to include the act of engaging in non-consensual sexual intercourse with a person whose ability to resist has been substantially impaired by drugs or other intoxicants.  See, e.g., Black’s Law Dictionary (6th ed.1990) (defining rape as the ‘act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force or fear, or under other prohibitive conditions’).”[875]

 

In United States v. Yanez-Saucedo,[876] the court further held that a Washington conviction of third-degree rape, committed with force necessary to cause penetration, but not force necessary to overcome resistance, also qualified as aggravated felony rape.  The court did not go into any detail in attempting to define rape, merely stating that the Washington offense “fits within a generic, contemporary definition of rape, which can, but does not necessarily, include an element of physical force beyond that required for penetration.”[877]

               

                In Rivas-Gomez v. Gonzales,[878] the Ninth Circuit went even further, by defining rape as requiring only sexual activity that is (1) unlawful, and (2) without consent, but did not require any element of force, thereby explicitly rejecting the argument that rape requires an element of forcible compulsion.[879]  The court then found that an Oregon conviction for rape in the third degree, or “sexual intercourse with another person under 16 years of age,” in violation of under Oregon Revised Statutes (“ORS”) § 163.355, constituted aggravated felony “rape” because the act was prohibited by law and minors are, by law, unable to consent.  See § 19.92, infra.

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

[866] See § 19.9, supra.

[867] 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.”

[868] American Law Institute, 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.”

[869] 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.

[870] 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.

[871] “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.

[872] The former statute, 18 U.S.C. § 2031, entitled “Rape,” was repealed and replaced by 18 U.S.C. § 2241 entitled “Aggravated sexual abuse.”  See Act of Nov. 10, 1986, P.L. 99-646, § 87(c)(1), 100 Stat. 3623 and Act of Nov. 14, 1986, P.L. 99-654, § 3(a)(1), 100 Stat. 3663.  Compare the BIA’s use of the federal statutory offense “Obstruction of Justice” in defining the aggravated felony “obstruction of justice” under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) in Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999), discussed in “Accessory After the Fact,” § 5.2, supra. 

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

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

[875] Id. at 1059.

[876] United States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir. July 8, 2002).

[877] Id. at 996.

[878] Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006).

[879] Id. at 1074.

BIA

AGGRAVATED FELONY " RAPE " DEFINITION " REQUIREMENT OF PENETRATION
(the term rape in the aggravated felony definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight, and also requires that the underlying act be committed without consent; lack of consent includes where the victims ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment). NOTE: The BIA suggested, but did not hold, that lack of consent may include inability to consent due to age.

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.

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT RAPE
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. Aug. 6, 2007) (California conviction of assault with intent to commit rape, in violation of Penal Code 220, 261(a)(2), is crime of violence under the federal sentencing guidelines).