(C)  Age of the Victim.  Federal law criminalizes engaging in specified sex acts as “aggravated sexual battery” when the victim is under the age of 12.[1007]  The same acts committed against a victim between 12 and 16 years old is non-aggravated sexual abuse of a minor, and federal law does not even punish commission of those acts when the victim is older than 16.[1008]  This scheme recognizes that acts committed against a very young victim may be considered extremely serious, where those same acts may simply be a normal (if regrettable) part of life when committed with an older teen.

 

As Judge Posner stated, in his dissenting opinion in Gattem v. Gonzalez:

 

The number of unmarried teenaged girls in this country who have engaged in sexual intercourse, let alone in oral sex, is in the millions;  for of all girls in 11th grade (few of whom would have turned 18), 53.1 percent have had sexual intercourse. Centers for Disease Control and Prevention, “Youth Risk Behavior Surveillance--United States 2003,” Morbidity & Mortality Weekly, May 21, 2004, p. 18.  Oral sex is even more common; in a study of ninth graders, half again as many were found to have had oral as vaginal sex.  Bonnie L. Halpern-Felsher et al., “Oral Versus Vaginal Sex Among Adolescents:  Perceptions, Attitudes, and Behavior,” Pediatrics, Apr. 2005, p. 847.  Solicitation of such girls to engage in sex must be common.  That doesn’t make it right;  and circumstances of course alter cases: the younger the girl, the older the man, and the more insistent or prurient the means of inducement employed, the likelier is the solicitation of an underage girl or boy for sex to be a serious crime even if the solicitation is unsuccessful.  But we cannot let our imaginations roam . . . . [1009]

 

What may be considered “abuse” or “sexual abuse” may therefore differ depending upon the age of the victim.  This may explain the apparent inconsistency between Baron-Media, which dealt with an offense that must be committed against a child under the age of 14 years old, and Pallares-Galan, where the offense could be committed against anyone under 18 years old.  The Ninth Circuit, in fact, emphasized in Baron-Medina that the youth of the victim was what made the conduct inherently abusive.[1010]

 

                Some courts might also take into consideration the degree of separation between the ages of the victims required to convict.  In Matter of VFD,[1011] the BIA found that a Florida statutory rape conviction constituted sexual abuse of a minor where the statute criminalized activity between “an adult at least 24 years of age and a minor who is at least 7 or 8 years younger, i.e., 16 or 17 years of age. . . .  This is a significant age discrepancy that reflects the seriousness and exploitative nature of the crime.”[1012]

[1007] 18 U.S.C. § 2241(c).

[1008] 18 U.S.C. § 2243.

[1009] Gattem v. Gonzalez, 412 F.3d at 768 (2005).

[1010] “The use of young children as objects of sexual gratification constitutes an abuse.  We reject the notion that the defendant in the Imler case did not abuse his young victims, or that Congress intended the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances.  [citation]  The use of young children as objects of sexual gratification is corrupt, improper and contrary to good order. [citation] It constitutes maltreatment, no matter what its form. [citation].”  United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999).

[1011] Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006).

[1012] Id. at 863.

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).