Crimes of Moral Turpitude

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.