Criminal Defense of Immigrants

 

(A)  As “Rape.” [1039]  Since this offense is commonly characterized as “unlawful sexual intercourse with a minor,” and does not require force or fear as an essential element, it does not necessarily constitute an aggravated felony under the theory that it is “rape.” See § 19.83, supra.

 

On the other hand, in Rivas-Gomez v. Gonzales,[1040] the Ninth Circuit defined rape as requiring only sexual activity that is (1) unlawful, and (2) without consent, but did not require any element of force.[1041]  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,”[1042] constituted aggravated felony “rape” because the act was prohibited by law (therefore “unlawful”), and because:

 

Oregon’s third degree rape statute, which prohibits sexual intercourse with persons under the age of sixteen, contains an inherent “without consent” element.  With respect to this element of rape, we see no material difference in this context between rape where the victim expresses a lack of consent, or is unconscious or asleep or duped, on one hand, and rape where the victim because of youth and vulnerability is, as a matter of law,[1043] incapable of consenting on the other.[1044]

 

It may be possible to argue, however, that the “in this context” language above limits this finding to the specific facts of this case, i.e., statutory rape of a child under 16 years of age.

 

Since aggravated felony “rape” is not defined by reference to any particular statute, a “generic” definition should be applied.[1045]  In determining the “generic definition” of theft for aggravated felony purposes, the United States Supreme Court recently suggested that the court should look to, and apply, the law as followed in the majority of the United States.[1046]  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.[1047]  Counsel should therefore 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 statutory rape, and thus cannot be “rape” according to the “ordinary, contemporary and common meaning of the words . . . .”[1048]  This same argument could be made in the context of the current illegal re-entry sentencing guidelines, which expressly include “statutory rape” as a “crime of violence.”[1049]

 

In Silva v. Gonzales,[1050] the First Circuit also found that a Massachusetts conviction of statutory rape was aggravated felony “rape”:

Here, the statute of conviction, Mass. Gen. Laws ch. 265, § 23, specifically terms the crime of conviction “[r]ape.” Under the explicit language of the INA, all rape-including statutory rape-comes within the aggravated felony taxonomy. See 8 U.S.C. § 1101(a)(43)(A); see also Mattis v. Reno, 212 F.3d 31, 34-35 (1st Cir. 2000) (superseded on other grounds) (holding that ‘statutory rape . . . is an aggravated felony under INA § 101(a)(43)(A)’). It follows inexorably that the petitioner’s state-court conviction was properly classified as a conviction for an aggravated felony.[1051]

 

This analysis is plainly incorrect.  The court reasons that because the state labels an offense a rape, it must be an aggravated felony rape offense.  Many decisions, however, clearly hold that whether a crime falls within the federal definition is a matter of federal law, and the state label attached to the offense is irrelevant.[1052]  The noncitizen in this case incorrectly conceded this point, so counsel can argue that the improper use of the state label was dictum.

 

[1039] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[1040] Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. Apr. 3, 2006).

[1041] Id. at 1074.

[1042] Oregon Revised Statutes (“ORS”) § 163.355.

[1043] The court cited Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006) (statutory rape not necessarily a crime of violence), as not controlling, because Valencia only addressed statutory rape as a crime of violence.  The court thereby implicitly refused to consider Valencia’s language distinquishing between legal and actual abiltity to consent.  See § 19.92(B), infra. [this section]

[1044] Rivas-Gomez v. Gonzales, 441 F.3d at 1075 (emphasis in original).

[1045] See § 19.9, infra.

[1046] See Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820-821  (Jan. 17, 2007) (applying natural and probable consequences doctrine to generic definition of ‘theft’ for aggravated felony purposes where only 10 states had expressly refused to follow the doctrine).

[1047] 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.

[1048] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1996).

[1049] USSG § 2L1.2 (11/1/06), Application Notes 1(B)(iii).

[1050] Silva v. Gonzales, 455 F.3d 26 (1st Cir. Jul. 14, 2006) (Massachusetts conviction of statutory rape of 14-year-old girl, under Mass. Gen. Laws ch. 265, § 23 [“unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age”], is aggravated felony “rape” for immigration purposes).

[1051] Id. at 29.

[1052] See § 16.35, supra.