Criminal Defense of Immigrants


§ 19.88 (A)

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(A)  Sexual Act.  A mere battery offense will not be considered sexual.  Arguably there needs to be some type of sexual contact (or exposure).  Under federal law, this contact is limited to the genitalia, anus, groin, breast, inner thigh, or buttocks.[961]  Therefore, stealing a kiss or satisfying a foot fetish arguably are not included.  In United States v. Pallares-Galan,[962] the Ninth Circuit found that sexual abuse requires “requires more than improper motivation; it requires conduct that is abusive.”[963]  The Fifth Circuit requires that any sexual act be “overt” (i.e., known to the victim).[964] 

[961] 18 U.S.C. § § 2246(3), 3509(a)(9).

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

[963] Id. at 1101-1102.

[964] United States v. Izaguirre-Flores, 405 F.3d at 276 (5th Cir. Mar. 31, 2005).