Acts of improper sexual conduct between an adult male offender and a child, usually female, which may or may not amount to actual sexual assault or intercourse, have been given various names in the different jurisdictions, such as “carnal abuse,” “indecent liberties,” “contributing to the delinquency of a minor,” and so forth.  Such offenses have generally been held to be crimes involving moral turpitude . . . .[195]

 

The terminology in this class of offenses is particularly diverse.

 

Thus, similar acts to those involved in some of the cases discussed in this section may have been involved in offenses denominated as “disorderly conduct,” “lewd and indecent behavior,” etc. . . . ; as “indecent assault”. . . ; as rape or attempted rape . . . ; or as an offense involving homosexual conduct . . . .[196]

 

Note that in some cases, a sexual abuse statute may be subject to challenge on constitutional grounds.[197]

 

            Sexual assault of a minor

 

United States v. Ekpin, 214 F.Supp.2d 707 (S.D.Tex. June 24, 2002) (Texas conviction of aggravated sexual assault of a child, in violation of Texas Penal Code § 22.021, is a crime involving moral turpitude for immigration purposes).

 

Sexual misconduct with minor

 

Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes of a sexual nature, in violation of Wash. Rev. Code § 9.68A.090, categorically constituted crime of moral turpitude);

Matter of Imber, 16 I. & N. Dec. 256 (BIA 1977) (Israeli convictions of engaging in sexual misconduct with three 16-year-old girls, and making immoral advances to a woman or person under 16, in violation of § § 159 and 168 of the Criminal Act of 1936, respectively, held to be CMT).

 

Carnal knowledge or abuse of minors

 

Castle v. INS, 541 F.2d 1064 (4th Cir. 1976) (per curiam) (carnal knowledge of a 15-year-old girl, not his wife, under Code Md. 1957, art. 27, § 464 (Repl.Vol. 1976), is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se, since statutory offense of carnal knowledge is a crime malum in se and all crimes mala in se involve moral turpitude);

Schoeps v. Carmichael, 177 F.2d 391 (9th Cir. 1949), cert. den., 339 U.S. 914, 70 S.Ct. 566, 94 L.Ed. 1340 (1950) (carnal abuse of a seven-year-old girl, in violation of New York Penal Law § 483, held a crime of moral turpitude);

Bendel v. Nagle, 17 F.2d 719, 57 A.L.R. 1129 (9th Cir. 1927) (carnal knowledge in Maryland);

United States ex rel. Marks v. Esperdy, 203 F.Supp. 389 (D.N.Y. 1962) (dictum), reversed, 315 F.2d 673 (2d Cir. 1963), affirmed, Marks v. Esperdy, 377 U.S. 214, 84 S.Ct. 1224, 12 L.Ed.2d 292 (1964);

Matter of M, 9 I. & N. Dec. 452 (BIA 1961) (Wisconsin conviction of the offense of carnal knowledge and abuse of a female, 16 years old, contrary to § 340.47 of the Wisconsin Statutes, held a crime involving moral turpitude);

Matter of P, 5 I. & N. Dec. 392 (BIA 1953) (Massachusetts conviction of carnal abuse of a female child under the age of 16 years, even though she gives full consent, in violation of § 23 of Chapter 265 of the General Laws of Massachusetts, is a crime involving moral turpitude), citing Matter of P, 2 I. & N. Dec. 117, 121 n.16 (BIA 1944); Matter of R, 3 I. & N. Dec. 562 (BIA 1949); Bendel v. Nagle, 17 F.2d 719 (BIA 1927); Ng Sui Wing v. United States, 46 F.2d 755, 756 (7th Cir. 1931);

Matter of R, 3 I. & N. Dec. 562 (BIA 1949) (conviction of carnal knowledge of a girl, under 16 and above 14 years of age of previous chaste character, not his wife, in violation of Criminal Code § 301(2) involves moral turpitude).

 

Indecent liberties

 

Glaros v. INS, 416 F.2d 441 (5th Cir. 1969) (Pennsylvania conviction of indecent liberties with minor child);

Petsche v. Clingan, 273 F.2d 688 (10th Cir. 1960) (“indecent liberties” in Colorado, decision based on potential sentence of one to 10 years, though noncitizen served only seven and a half months);

Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966) (conviction for taking indecent liberties “such as the common sense of society would regard as indecent and improper” with the person of a nine-year-old child “without committing or intending to commit the crime of rape” under § 336 of the Michigan Penal Code [1931] constitutes crime of moral turpitude).

 

Fondling

 

Kassim v. INS, 96 F.3d 1438 (4th Cir. 1996) (Table) (conviction of fondling the 11-year-old son of a friend held to involve moral turpitude).

 

Child Pornography

 

Matter of Olquin-Rufino, 23 I. & N. Dec. 896 (BIA Mar. 23, 2006) (Florida conviction of possession of child pornography, in violation of Florida Statutes § 827.071(5) ("knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, s/he knows to include any sexual conduct by a child."), is a crime involving moral turpitude).

 

Contributing to the Delinquency of a Minor.  Convictions for contributing to the delinquency of a minor have uniformly been held to involve moral turpitude where the record of conviction shows a sexual offense was committed against a minor.[198]

 

Palmer v. INS, 4 F.3d 482 (7th Cir. 1993) (Illinois conviction for contributing to the sexual delinquency of a minor, under Ill.Rev.Stat. ch. 38, para. 11- 5, was a crime of moral turpitude);

Glaros v. INS, 416 F.2d 441 (5th Cir. 1969);

Orlando v. Robinson, 262 F.2d 850 (7th Cir. 1959) (contributing to delinquency of female child), cert. den., 359 U.S. 980, 3 L.Ed. 929, 79 S.Ct. 898 (1959);

Fitzgerald ex rel. Miceli v Landon, 238 F.2d 864 (1st Cir. 1956) (contributing to the delinquency of a minor);

Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), reversed on other grounds, Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955) (Massachusetts conviction of carnal abuse of a female child, in violation of Mass. Gen. Laws c. 265, § 23, is a crime involving moral turpitude);

Matter of W, 5 I. & N. Dec. 239 (BIA 1953) (conviction of contributing to the delinquency of a minor in violation of Canada Juvenile Delinquents Act of 1929 § 33, a divisible statute, involves moral turpitude where the conviction record shows the specific act to be that of sexual intercourse);

Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (conviction of contributing to the delinquency of a minor in violation of Title 23, Chapter 10, Article 3, § 1034 of the General Laws of the State of Oregon may or may not involve moral turpitude, since the term “immoral conduct” contained in § 603 of Title 93 of the General Laws of the State of Oregon is broad enough to encompass acts which do or do not involve moral turpitude; when the record of conviction, specifically including the charge, clearly shows lewd and lascivious acts involved in the commission of the crime, the particular offense involves moral turpitude);

Matter of RP, 4 I. & N. Dec. 607 (BIA 1952) (conviction of contributing to the delinquency of a minor in 1950 in violation of California Welfare and Institutions Code § 702(k) of May 25, 1937, a divisible statute, is one involving moral turpitude, it being noted that the portion of § 702(k) violated is that making punishable influencing a minor to commit acts which may result in the very young child leading a “dissolute” or “lewd” life);

Matter of P, 3 I. & N. Dec. 290 (BIA 1948) (conviction of contributing to the delinquency of a minor in 1921 in violation of subdivision 11 of § 21 of the Juvenile Court Law of California (as reenacted under California Welfare and Institutions Code § 702) involves moral turpitude where the conviction record shows the specific act to be that of accomplishing an act of sexual intercourse with a minor of the age of 19 years; and the age of the minor is no defense);

Matter of F, 2 I. & N. Dec. 610 (BIA 1946) (conviction of contributing to the delinquency of a child in 1931 in violation of Illinois Criminal Code § § 37.090, 37.089, held to be a crime involving moral turpitude, where the information showed that the defendant encouraged a child to be guilty of indecent or lascivious conduct by statutory rape).

 

On the other hand, contributing to the delinquency of a minor has been held NOT to be a crime involving moral turpitude where it was determinable from the record that a relatively minor social offense could have been the basis for such conviction. 

 

Matter of W, 2 I. & N. Dec. 795 (BIA 1947) (conviction of contributing to the delinquency of a minor in violation of Canada Juvenile Delinquents Act § 33(1)(b), by setting a bad example for minors by “taking part” in a certain theft, does not involve moral turpitude, where the evidence showed no exercise of will upon the minors by force or otherwise);

Matter of VT, 2 I. & N. Dec. 213 (BIA 1944) (conviction of contributing to the delinquency of a minor, in violation of California Juvenile Court Law § 21, which embraces offenses which do not necessarily involve moral turpitude, held not to involve moral turpitude, since the record of conviction is too meager to determine whether this offense involves moral turpitude);

Matter of P, 2 I. & N. Dec. 117 (BIA 1944) (conviction of contributing to the delinquency of minors by making an indecent exposure in violation of § 1987-17 of Remington’s Revised Statutes does not involve moral turpitude, where the statute violated does not require any specific intent and the record of conviction does not disclose whether the offending act was done with evil intent);

Matter of Y, 1 I. & N. Dec. 662 (BIA 1943) (contributing to the delinquency of a minor in violation of § 7696, Chapter 30, Compiled Laws of Michigan (1929) is not necessarily a crime involving moral turpitude; since the complaint did not specify the act, the conviction could not be held to be CMT).

[195] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[c] (1975) (footnote omitted).

[196] Ibid., n.72.

[197] Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004) (Child Online Pornography Act, 47 U.S.C. § 231, found likely to violate the First Amendment; preliminary injunction against its application was therefore upheld).

[198] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a).

Fourth Circuit

CRIMES OF MORAL TURPITUDE " CONTRIBUTING TO THE DELINQUENCY OF A MINOR
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (Virginia misdemeanor conviction of contributing to the delinquency of a minor, in violation of Virginia Code 18.2-371, did not categorically constitute a crime involving moral turpitude applying the modified categorical approach).

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 - SEX OFFENSES - ANNOYING OR MOLESTING A CHILD
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. Apr. 24, 2008) (California misdemeanor conviction of annoying or molesting a child, in violation of Penal Code 647.6(b) ["annoys or molests any child under the age of 18"], did not constitute a crime of moral turpitude under the categorical approach, or under the modified categorical approach: "After examining the elements of 47.6(a), as set forth in the statute and as construed by California courts, we conclude that there is a "realistic probability, not a theoretical possibility," that a misdemeanor conviction under 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a "crime involving moral turpitude" within the meaning of 8 U.S.C. 1227(a) (2)(A)(i)(I). ... We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.").

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPITUDE " ORAL COPULATION WITH A MINOR
People v. Zuniga, 225 Cal.App.4th 1178, 170 Cal.Rptr.3d 811 (Cal.App. 4 Dist., Apr. 28, 2014) (California conviction of violating Penal Code 288a(b)(1), oral copulation with a minor, is not a crime of moral turpitude since there is no scienter requirement or age gap required and minor could be any person under 18).

Other

CRIME OF MORAL TURPITUDE - SEXUAL OFFENSES - INDECENCY WITH A CHILD
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code 21.11(a)(1) is a crime involving moral turpitude if the actor, in fact, knew or should have known that the victim was under 18 years old).

Note: this decision is horribly incorrect, changing 100 years of CMT law, and should be attacked. See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments against this terrible decision.