(B)  Minor Conduct, Even If it Involves Sexual Intent, Does Not Always Rise to the Level 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.”  In United States v. Pallares-Galan,[981] the Ninth Circuit held that for sentencing purposes, a conviction of annoying or molesting child under 18,[982] was a divisible statute on the issue of whether a conviction would qualify as sexual abuse of a minor, and concluded that “abuse” required some form of harm to the child.

 

                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.”[983]  Annoy means “to disturb or irritate, especially by continued or repeated acts; to weary or trouble; to irk; to offend . . . .”[984]  To molest means “to interfere with or meddle with unwarrantably so as to injure or disturb.”[985]  “Annoyance or molestation signifies something that works hurt, inconvenience, or damage.”[986]  The term “molest” is a general synonym for “annoy.”[987]

 

                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 . . . .”[988]  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.”[989]

 

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.  The court found that the mere use of words, while possibly annoying, does not necessarily constitute sexual abuse.[990]  The court also found that “mere solicitation of a sexual act” would not necessarily constitute sexual abuse.[991]  The court found that 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.[992]

 

This case arguably upsets an earlier Ninth Circuit decision, Baron-Medina,[993] which held that a violation of California Penal Code § 288(a) categorically qualifies as sexual abuse of a minor, though “[e]ven 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).”[994]  “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.”[995]  Even an apparently innocent touching of a child’s hand, shoulder, or hair, if done with sexual intent, is an act sufficient to sustain a conviction under California Penal Code § 288(a).[996]

 

Clearly, because a conviction under this statute may be sustained on the basis of any touching, however innocuous, and even if any impropriety is unknown to the victim, a conviction may be sustained regardless of whether the touching resulted in “injur[y], hurt, or damage” to the victim.[997] 

 

In United States v. Baza-Martinez, the Ninth Circuit found in the illegal re-entry sentencing context, that a conviction for taking indecent liberties with a child,[998] was not a sexual abuse of a minor offense because the elements of the statute did not require that any harm come to the victim. “All that is required is that at the time of the immoral, improper, or indecent liberty, the defendant must be either in the actual or constructive presence of a child.”[999]  Therefore, for example, the defendant may have masturbated in a public place where a child was present who might have witnessed the act.  The court also noted that a conviction could be sustained even if the child was completely unaware of the act.[1000]   The court criticized two other circuits that had held that the same conviction was sexual abuse of a minor for illegal re-entry sentencing purposes, noting that the Eighth Circuit[1001] may have improperly given Chevron deference to the BIA’s interpretation of the state criminal statute, and that the Fifth Circuit[1002] had failed to apply the categorical analysis in making its decision.[1003]

 

In Stubbs v. DHS, [1004] the Third Circuit found that a conviction for “engaging in sexual conduct that would impair or debauch the moral of a child,”[1005] was not an aggravated felony sexual abuse of a minor offense because the offense only required that the defendants conduct could potentially induce a child to commit an immoral act.  This statute could be violated merely by standing naked at a window where a child outside could see.[1006]  The court found that it was not sufficient that such a negative effect could occur, since 18 U.S.C. § 3509(a)(8) required that an enticement or coercion must actually have occurred. 

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

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

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

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

[985] Ibid.

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

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

[988] Id. at 1101. 

[989] Ibid.

[990] Ibid.

[991] Id. at 1101-1102.

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

[993] 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.”).

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

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

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

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

[998] North Carolina General Statute § 14-202.1.

[999] State v. Every, 578 S.E.2d 642, 648 (N.C.Ct.App. 2003).

[1000] United States v. Baza-Martinez, 464 F.3d at 1017.

[1001] Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001).  See § 15.37, supra.

[1002] United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005).

[1003] United States v. Baza-Martinez, 464 F.3d at 1017.

[1004] Stubbs v. Attorney General, 452 F.3d 251 (3d Cir. Jun. 29, 2006).

[1005] N.J. Stat. Ann. § 2C:24-4(a).

[1006] State v. Hackett, 764 A.2d 421, 428 (N.J. 2003).

First Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD
United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11, is sexual abuse of a minor for illegal re-entry sentencing purposes where indictment indicated that minor was under the age of seventeen and the defendant was at least 8 years older).

Ninth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL CONTACT
Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. May 20, 2010) (Arizona conviction for violation of ARS 14-1405, sexual conduct with a minor under 18, is not categorically an aggravated felony for immigration purposes, since it does not meet the generic federal definition of "sexual abuse of a minor"), following Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Castro, 599 F.3d 1050 (9th Cir. Mar. 26, 2010) (California conviction for lewd acts with a child 14-15 years of age, under California Penal Code 288(c)(1), did not categorically constitute a "sexual abuse of a minor," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since sexual conduct with a 15 year old is not per se abusive), following Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir. 2009).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) ("a conviction which constitutes 'sexual abuse of a minor' must necessarily contain an element of abuse. We have previously construed the word 'abuse' as physical or nonphysical misuse or maltreatment' or use or treat[ment] so as to injure, hurt, or damage.") (internal quotation marks omitted), quoting United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir. 2006) (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001); see also United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004)).

POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD
Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor). Note: the court examined Arizona state caselaw, applying Duenas.

AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR DEFINITION OF SEXUAL ABUSE
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) (sexual abuse is defined by the common meaning of the terms, rather than by reference to a federal statute, therefore sexual abuse includes intimate touching through clothing, even though federal law requires skin-on-skin contact).