Crimes of Moral Turpitude

Statutory rape has generally been held to be a crime of moral turpitude.  The State Department, in the context of consular processing, has stated: “By statute, a person may be convicted of statutory rape even though the female consents and provided she is under the statutory age at the time of the commission of the act.  ‘Statutory rape’ is also deemed to involve moral turpitude.’”[211]

In Quintero-Salazar v. Keisler,[212] the Ninth Circuit held that a violation of California Penal Code § 261.5(d), a strict liability statute criminalizing intercourse between a person under 16 and a person 21 years old or older was not a crime of moral turpitude.  The court first defined the minimum conduct as that between a person who had just turned 21 and a person 15 years and 11 months old, reasoning that this could arise in a long-term relationship between a college sophomore and a high-school junior.  Looking at this example, the court found that this activity is merely malum prohibitum, rather than malum in se because (a) the statute in question was expressly passed for the purpose of avoiding teen pregnancy, rather than addressing an inherent evil; (b) the act prohibited would be legal if the parties were married; and (c) the prohibited act is not prohibited under the laws of other states.  On the basis of these facts, the court found it could not say that the act was one that was socially unacceptable, base, or vile according contemporary social mores.

Although finding that statutory rape was a CMT, the Eighth Circuit has made similar observations. [3]  Counsel can make similar arguments, especially where the statute of conviction prohibits sex where the victim is just shy of 18 years old.

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 [at minimum] between 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);

Goh v. INS, 61 F.3d 910 (9th Cir. 1995) (Table) (first-degree statutory rape of an 8-year old child constitutes a crime of moral turpitude), citing Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (per curiam) (explaining that acts such as statutory rape “involve moral turpitude ‘by their very nature’”);

Castle v. INS, 541 F.2d 1064 (4th Cir. 1976) (Maryland conviction of carnal knowledge of a female between the ages of 14 and 16 held to involve moral turpitude);

Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971), cert. den., 405 U.S. 997, 92 S.Ct. 1260, 31 L.Ed.2d 466 (1972) (Minnesota conviction of statutory rape, under Minn.Stats.Ann. § § 609.02, subd. 9(6), 609.295(4), which forbids sexual intercourse with a female under 18 not a spouse, held a crime of moral turpitude, even though the statute makes sexual relations with a female between sixteen and eighteen years of age a crime without any proof of criminal intent or knowledge of the age of the female, so a defense of reasonable mistake as to age is unavailable);

Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), rev’d on other grounds, 349 U.S. 901 (1955);

Bendel v. Nagle, 17 F.2d 719, 57 A.L.R. 1129 (9th Cir. 1927) (conviction of carnal knowledge of a child of 15 years held equivalent to rape, and so involves moral turpitude);

Rico v. INS, 262 F.Supp.2d 6 (E.D.N.Y. May 9, 2003) (New York conviction of third degree [statutory] rape, in violation of Penal Code § 130.25(2), is a crime of moral turpitude for immigration purposes);

Matter of Dingena, 11 I. & N. Dec. 723 (BIA 1966) (conviction of sexual intercourse of a female under 16 by male over 18, contrary to Wisconsin Statutes § 944.10(2), held CMT);

Matter of M, 9 I. & N. Dec. 452 (BIA 1961) (Wisconsin conviction of carnal knowledge held equivalent to statutory rape);

Matter of R, 3 I. & N. Dec. 562 (INS Central Office 1949) (carnal knowledge of female child);

Matter of S, 2 I. & N. Dec. 553 (BIA 1946) (conviction of statutory rape in violation of Pennsylvania law is a crime involving moral turpitude);

Matter of M, 2 I. & N. Dec. 17 (BIA 1944) (conviction of statutory rape in violation of Nebraska law is a crime involving moral turpitude), citing Bendel v. Nagle, 17 F.2d 719 (9th Cir. 1927); but see dissenting opinion by Judge Eisle, id. at 1026 (discussing apparent inconsistencies of uniformly classifying statutory rape as a crime of moral turpitude).

            Cf. Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967) (abduction for purpose of marriage is not a crime involving moral turpitude). 

[213] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(15).

[211] Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. Oct. 9, 2007).

[212] Marciano v. INS, 450 F.2d 1022, 1024, 1026 (8th Cir. 1971), cert. den., 405 U.S. 997, 31 L.Ed.2d 466, 92 S.Ct. 1260 (1972).