Some criminal statutes may be violated without any intent whatsoever.  Where criminal intent is not an essential element of the offense, the crime will generally not be held to be a crime involving moral turpitude.  An offense not malum in se, see § 8.22(c), infra, does not qualify as a crime which involves moral turpitude as a matter of law.  This conclusion remains, even though the facts of a given case may disclose conduct which involved moral turpitude, since the court may not inquire into the facts of the case to make the CMT determination.[119]

 

At least one offense, statutory rape, has been traditionally been found to be malum in se for CMT purposes even though the statute of conviction required no proof of intent.[120]

 

If the elements of the crime require no motive or intent, and the defendant may be convicted even though the conduct was prompted by innocent motives, then the crime does not involve moral turpitude.[121]

[119] Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957).

[120] See, e.g., Rivo v. INS, 262 F.Supp.2d 6 (E.D.N.Y. May 9, 2003); Castle v. INS, 541 F.2d 1064 (4th Cir. Sept. 23, 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. denied, 405 U.S. 997 (1972).  But see Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. Oct. 9, 2007) (California conviction of statutory rape, in violation of California Penal Code § 261.5(d), where the victim is under 16 years of age and the actor is over 21, is not a crime involving moral turpitude, since (1) it includes consensual sex between [at minimum] a high-school junior and a college sophomore, and is not inherently base, vile, or depraved; court also noted that (2) the statute proscribes at least some malum prohibitum conduct, since the same act would not be illegal at all if the two were married at the time; (3) the same conduct is not illegal in other states; (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the offense does not require any element of intent be proven).

[121] Placenscia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. Feb. 7, 2008) (Nevada conviction for failure to register as a sex offender, in violation of Nev. Rev. Stat. § 179D.550, is not a CMT because no intent is required); United States ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y. 1913), aff’d sub nom. United States v. Uhl, 210 Fed. 860 (2d Cir. 1914); United States v. Carrollo, 30 F.Supp. 3 (W.D.Mo. 1939); Matter of M, 9 I. & N. Dec. 132 (BIA 1960).  But see Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA Apr. 23, 2007) (California conviction for failure to register as a sex offender, in violation of Penal Code § 290(g)(1) is a CMT, even though the offense lacks an element of intent and may be committed by merely forgetting to register).  See § 9.96, infra.

Ninth Circuit

CRIMES OF MORAL TURPITUDE - POSSESSION OF CHILD PORNOGRAPHY
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) (federal conviction of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) ("knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography"), constituted a conviction of a crime involving moral turpitude, and supported district court's order granting partial summary judgment in favor of the United States in an action to revoke naturalized citizenship: "The Supreme Court has characterized sexual abuse of a minor as "an act repugnant to the moral instincts of a decent people." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Moreover, child pornography, as "permanent record of a child's abuse," causes continuing "injury to the child's reputation and well-being." Id. at 249. Because possession of child pornography offends conventional morality and visits continuing injury on children, it is "vile, base or depraved and ... violates societal moral standards." Navarro-Lopez, 503 F.3d at 1074. Therefore, possession of child pornography under 18 U.S.C. 2252A(a)(5)(B) is a crime involving moral turpitude."); accord In re Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006) (Florida conviction of possession of child pornography, under Florida Statute 827.071(5) ("unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ... he or she knows to include any sexual conduct by a child"), constituted conviction of crime involving moral turpitude); See Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek, 739 N.W.2d 67, 69 (Iowa 2007) (possession of child pornography is morally turpitudinous); Chapman v. Gooden, 974 So.2d 972, 977 (Ala.2007) (same); cf. In re Wolff, 490 A.2d 1118, 1120 (D.C.Ct.App.1985), vacated, 494 A.2d 932, aff'd, 511 A.2d 1047 (1986) (en banc) (same) (possession of child pornography is a crime involving moral turpitude).

This decision is incorrect. Museums, law enforcement agencies, court clerks, and academic researchers may possess these items without moral culpability of any kind. The issue of criminality of their possession hinges on whether the possession is unauthorized under law. This offense is therefore malum prohibitum, and should be considered a regulatory offense, rather than a crime of moral turpitude. It is, after all, mere private possession, rather than production or distribution.

CRIMES OF MORAL TURPITUDE - INTENT REQUIREMENT - SPECIFIC INTENT NOT REQUIRED FOR OFFENSE TO CONSTITUTE CMT
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) ("The lack of a specific intent requirement in 2252A(a)(5)(B) -which ba rs "knowing[ ]," as opposed to willful, possession of child pornography-does not change this result. Specific intent is not required for a crime to involve moral turpitude. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.2008) (recognizing that "a crime may qualify as one of moral turpitude even if the offense is malum prohibitum or does not require the prosecution to establish specific intent"), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc); Navarro-Lopez, 503 F.3d at 1068 (not listing specific intent as an element of a crime of moral turpitude). Willful, evil intent need not be explicit in the statute if, as here, "such intent is implicit in the nature of the crime." Gonzales-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994) (quotation marks and citation omitted).").

Tenth Circuit

CRIMES OF MORAL TURPITUDE " SEX OFFENSES " FAILURE TO REGISTER AS A SEX OFFENDER
Efagene v. Holder, ___ F.3d ___, ___, 2011 WL 1614299 (10th Cir. Apr. 29, 2011) (Colorado misdemeanor conviction of failure to register as a sex offender, in violation of Colo.Rev.Stat. 18-3-412.5(1)(a), (3), does not constitute a crime of moral turpitude, because it is a regulatory offense, malum prohibitum, and lacks an evil intent; the BIAs contrary conclusion in Tobar-Lobo is not supported by the decisions on which it relies, and is inconsistent with many prior BIA decisions, rendering it worthy of much less deference: The BIA's interpretation of moral turpitude in Tobar"Lobo is unreasonable for the additional reason that the rationale for the decision could apply to any and every criminal infraction. Any obligation on which society has placed a threat of imprisonment for failure to comply can be characterized as too important not to heed, as the BIA said of the obligation to register as a sex offender.).