Criminal Defense of Immigrants

 

(C)  As “Sexual Abuse of a Minor.”  Due to the expansive definition employed by the BIA and circuit courts,[1077] it is highly likely that a conviction for statutory rape will be found to constitute sexual abuse of a minor.  If the statute requires that the child be 15 or younger, the courts are extremely likely to conclude that any consent has no meaning, and the contact is therefore equivalent to battery, in this case sexual battery, and therefore clearly constitutes an aggravated felony sexual abuse of a minor.

 

It may be possible to argue, however, that the act of intercourse does not necessarily inflict either physical or psychological harm upon a person just shy of their 18th birthday.[1078]  Evidence showing that older teenagers, as opposed to young children, are relatively experienced and sophisticated in sexual matters, and are considered by society to be relatively emotionally mature, may help show that “harm” is not necessarily caused by their consensual sexual relationships.  Evidence showing that psychological harm is not necessarily caused would be very helpful.  This includes statistics regarding the number of youth of different age groups in the United States who have had sexual experiences,[1079] or evidence regarding the attitudes of Americans as to whether consensual sex with a 16- or 17-year-old necessarily constitutes abuse.  The public may wish that older teenagers did not engage in sex, and may even agree with criminalizing this conduct, especially as a misdemeanor.  However, they may not necessarily agree that a sexual relationship or any sexual contact at this age meets the definition of sexual abuse as it is commonly understood, committed against someone too young to understand the nature of the advances, since teenagers of this age range are not too young to make an informed consent or to understand what is going on.

 

Valencia III deleted a footnote, present in both Valencia I and Valencia II, that noted that the Ninth Circuit had previously held that statutory rape was “sexual abuse of a minor.”  The cases cited in this footnote, United States v. Granbois,[1080] and United States v. Periera-Salmeron,[1081] were both sentencing cases interpreting “sexual abuse of a minor” for the purposes of the “crime of violence” definition applied in the illegal re-entry sentencing context.[1082]  In Valencia III, however, the court instead cited United States v. Pallares-Galan[1083] for the idea that the court must assume the victim is just shy of the age of majority in making a decision using categorical analysis.  This suggested that the Ninth Circuit, at least, was open to applying Pallares-Galan in the immigration context, to determine whether a statutory rape would necessarily qualify as sexual abuse of a minor. 

 

                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.[1084]  Counsel should 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 sexual “abuse” according to the “ordinary, contemporary and common meaning of the words . . . .”[1085]

 

The legislative history of the statute and the pattern of enforcement also may be relevant.  For example, the legislative history of amendments to the statutory rape law in California (prohibiting sexual intercourse with anyone under the age of 18) states that the purpose of the law is to save the state money by curbing the proliferation of teenage pregnancy.[1086]  The vast majority of men charged under this statute are identified because the young women involved became pregnant and applied for welfare.  The statutory rape charge and conviction is used as a means of forcing the man to pay child support.[1087]  Because the history and purpose of this statute is so clearly based on saving public funds, as opposed to preventing sexual abuse of young children, it is arguable that this offense is not what Congress intended when it made “sexual abuse of a minor” an aggravated felony.

 

                In addressing the question of whether statutory rape qualifies as “sexual abuse of a minor,” the Ninth Circuit issued two seemingly contradictory decisions (within a month of each other).

 

In Afridi v. Gonzales,[1088] the court found that for immigration purposes, a California misdemeanor conviction for unlawful sexual intercourse with a minor,[1089] constituted sexual abuse of a minor, defined as encompassing any offense that involves “the employment, use, persuasion, inducement, enticement or coercion of a child to engage in . . . sexually explicit conduct . . . .”[1090]

 

                However, in United States v. Lopez-Solis,[1091] the court found that a Tennessee conviction of statutory rape,[1092] was not categorically ‘sexual abuse of a minor,’ and therefore not a ‘crime of violence’ for illegal re-entry sentence enhancement purposes.  Employing the “ordinary, contemporary, and common meaning” of the terms, the court applied the definition of “abuse” used in United States v. Pallares-Galan[1093] to find that consensual sex between an adult and a minor just one day shy of his or her 18th birthday[1094] was not necessarily either physically or psychologically “abusive.”

 

                So why do these two cases come to different conclusions?  In Lopez, the court distinguished Afridi on the basis that, in that case, it was required to give Chevron deference the BIA’s definition of “sexual abuse of a minor.”[1095] 

 

However, Afridi was arguably wrong to give deference to the BIA’s definition of sexual abuse of a minor in that case, since the BIA rendered its decision on November 22, 2004,[1096] more than eight months after the Ninth Circuit had announced its own definition of “sexual abuse of a minor” in Pallares-Galan.  Where a circuit court decides a rule different from that applied by the BIA, the BIA is required to follow that circuit’s rule when issuing a decision in a case arising within that circuit’s jurisdiction.[1097]  Therefore, the BIA in Afridi erred in failing to apply Pallares-Galan, and the Ninth Circuit should have reversed on that basis.

 

                Nevertheless, counsel can also argue that “sexual abuse of a minor” must be defined in the same way, regardless of whether it is used in the immigration or sentencing context.[1098]  Given that (1) in Lopez-Solis, the Ninth Circuit looked at its own “sexual abuse of a minor” definition with an eye to determining whether statutory rape falls within that definition; (2) Afridi did not involve such examination (and did not even cite Pallares-Galan); and (3) Lopez-Solis was decided after the court decided Afridi, counsel should argue that the analysis in Lopez-Solis applies to all future cases arising within the Ninth Circuit, regardless of whether in the immigration or sentencing context.  Even if the Ninth Circuit was at one point required to defer to the BIA, where the court did not yet have its own definition, this is no longer the case.

 

[1077] See, e.g., United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (“Because Kentucky law presumes that underage children are incapable of consent, statutory rape necessarily involves a sexual act performed “against” the child.  Therefore we determine that statutory rape is sexual abuse of a minor.”); Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. July 10, 2001); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (Calif. Penal Code § 288(a) — lewd act with child under 14 — was sexual abuse of a minor, even though it might involve merely sexual intent with “innocent” contact or no contact between the parties); Matter of VFD, 23 I. & N. Dec. 859 (BIA Jan. 23, 2006) (sex between a 24-year-old and a 17-year-old is sexual abuse of a minor); Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (indecent exposure with no physical contact is sexual abuse of a minor).

[1078] But see Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (“Thus, when a minor [under 18] is offered an item of value--here, contraband (cigarettes) that a minor could not legally obtain herself--in exchange for having sex with an adult, she may well be incapable of fully appreciating the consequences of yielding to the lure of the offer.  Because minors are, in this respect, more susceptible to corrupt influences, it is reasonable to think of an adult’s solicitation of a minor to be abusive in the sense of exploiting the minor’s vulnerabilities.”).

[1079] While social science research may provide the best information, law review articles also discuss this issue.  See, e.g., Lewis Bossing, Now Sixteen Could Get You Life: Statutory Rape, Meaningful Consent, and the Implications for Federal Sentencing Enhancements, 73 N.Y.U. L. Rev. 1205, 1226 1998.  The author cites studies in which 14-year-old adolescents exhibited adult levels of competency in various tests, as well as the increasingly common access teenagers have to contraceptive care, prenatal care, and mental health counseling.  Id. at 1229.

[1080] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).

[1081] United States v. Periera-Salmeron, 337 F.3d 1148 (9th Cir. 2003).

[1082] U.S.S.G. § 2L1.2, cmt. N. 1(b)(ii) (2002) (defining crime of violence, in part, as including “forcible sex offenses (including sexual abuse of a minor)”).

[1083] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (annoying or molesting a child is not categorically sexual abuse of a minor, as acts that are merely annoying are not abusive).

[1084] 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.

[1085] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1996).

[1086] See Historical and Statutory Notes, following the annotated California Penal Code § 261.5, Stats 1996, ch. 789.  The 1995 act providing for greater enforcement is the “Teenage Pregnancy Prevention Act of 1995,” and the purpose is to offset the large increase in welfare payments that the state believes are the result of illicit sex with underage females.  See comment in section 1, part (b): “California spent $3.08 billion in 1985 to assist families headed by teenagers.  If those births had been delayed until the mothers were at least 20 years old, the state would have saved $1.23 billion in welfare and health care expenses.”

[1087] See Kay Leslie Levine, Prosecution, Politics and Pregnancy: Enforcing Statutory Rape in California, Ph.D. Manuscript (2003), University of California at Berkeley, Boalt Hall School of Law.  See also Caolyn E. Cocca, Jailbait: The Politics of Statutory Rape Laws in the United States (State University of New York Press, 2004).

[1088] Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006).

[1089] Penal Code § 261.5(c).

[1090] Id. at 1217, quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999).

[1091] United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. May 19, 2006).

[1092] Tennessee Code § 39-13-506.  Note that this offense is technically more serious than that involved in Afridi, supra, since the minimum conduct of the offense requires four years age difference between the defendant and victim, rather than three years under the California statute.

[1093] United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004).

[1094] Applying the minimum conduct test.  See § 16.8, supra.

[1095] United States v. Lopez-Solis, 447 F.3d at 1209-1210.  See also Afridi v. Gonzales, 442 F.3d at 1216 (“Because the BIA’s construction of the statute was permissible we defer to it.”).

[1096] Afridi v. Gonzales, 442 F.3d at 1215.

[1097] The Board must follow a court’s precedent in cases arising in that circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA 1989).

[1098] See § 19.22, supra.