Safe Havens

(A)  Elements of the Aggravated Felony Category.  The aggravated felony definition includes “rape.”[707]  A conviction of committing sexual intercourse by force or serious threat will be held to be an aggravated felony.  The Ninth Circuit held that a conviction of rape while the victim was intoxicated, under California Penal Code § 261, is an aggravated felony as rape.[2]  The court dismissed arguments that because elements of rape under the federal sexual abuse law are not exactly coterminous with the elements of rape under the California statute, a conviction under the California statute was not “rape.”[708]  The court stated that it would define rape by “employing the ordinary, contemporary, and common meaning” of the term.  Citing Black’s Law Dictionary, it found that rape includes sexual intercourse with a person whose ability to resist has been substantially impaired by drugs. 

Possible sources for a standard definition are common law, the Model Penal Code, analogous federal statutory offenses, and texts summarizing the criminal law of many states.[709]  Rape involves sexual intercourse and is not simply a sexual assault on an adult.  Both the common law[710] and Model Penal Code[711] definitions of rape require sexual intercourse between a man and a woman effected through use of force (or, in the Model Penal Code, through force, serious threat, intoxicant, or a with a young child).  However, the federal offenses of “aggravated sexual abuse”[712] and “sexual abuse”[713] prohibit a broader range of behavior, defined as a “sexual act”: any penetration no matter how slight of genital or anal openings with penis, hands or objects; oral sex; and touching intimate areas not covered by clothing of persons under the age of 16.[714] 

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

[707] California Penal Code § § 261 and 262 define rape as sexual intercourse obtained by force, threat, intoxication, or other circumstances.

[708] Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000).

[709] For a proposal for how to create a definition of a general legal term in the aggravated felony statute — in this case, arson as a crime of violence — see Board Member Rosenberg, dissenting opinion in Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998).  See also discussion in K. BRADY, California Criminal Law And Immigration § 9.5 (2004).

[710] Charles E. Torcia, wharton’s criminal law, at I, Sexual Intercourse, § 276 (2004), in general.  “At common law, rape was the unlawful carnal knowledge of a woman by force and against her will.”  Id., § 277, Carnal Knowledge.  Rape requires the element of “carnal knowledge.”  Although some states still use the common-law expression, a growing number are coming to use the term “sexual intercourse.”

[711] model penal code, Crimes Against the Person, § 213.1, Rape and Related Offenses:

“(1) Rape.  A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct (through drugs or intoxicants); or (c) the female is unconscious; or (d) the female is less than 10 years old.”

[712] 18 U.S.C. § 2241 prohibits aggravated sexual abuse, which is defined in three sections as sexual acts committed: — § 2241(a) by force, violence, or threat of death, serious injury or kidnapping — § 2241(b) by other means, such as rendering the victim unconscious or substantially impaired by intoxicants, or if the victim already is unconscious; and — § 2241(c) with children under the age of 12.

[713] 18 U.S.C. § 2242 prohibits sexual abuse, which is a “sexual act” made under certain circumstances less severe than in aggravated sexual abuse: — by threatening or placing the person in fear (other than by threatening or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or — if the person is incapable of appraising the nature of the conduct, or physically incapable of declining participation in or communicating willingness to engage in, that sexual act.

[714] “Sexual act” is defined by 18 U.S.C. § 2246 and includes: (A) penetration, however slight, between the penis and the vulva or anus; (B) oral sex; (C) penetration, however slight, of the anal or genital opening by hand or any object with sexual or abusive intent; or (D) intentional touching, not through clothing, of the genitals of someone under the age of 16 with sexual or abusive intent.