When do sex-related crimes merit deportation?

This is a question that federal appellate judges - particularly the Ninth Circuit - are nowadays called upon to decide with some frequency. One such decision came yesterday in Estrada-Espinoza v. Mukasey (PDF), with the Ninth Circuit ruling that a Mexican citizen's statutory rape conviction did not constitute "sexual abuse of a minor" that, under federal law, merits deportation. Estrada-Espinoza had a cohabiting relationship with a 16-year-old when he was 20, and was convicted of statutory rape. A panel of three judges concluded that deportation was proper, following an earlier ruling that convictions under California's statutory rape law categorically constituted "sexual abuse of a minor."

A panel of eleventh judges unanimously reversed, saying: "We and our sister circuits have been careful on other occasions to distinguish laws governing the sexual behavior of younger teenagers from those governing the behavior of 16- and 17-year-olds." Indeed, the court's opinion canvases similar cases across the country in recent years, which on the whole suggest increasing sensitivity to a distinctions between abuse of younger teens and consensual relationships with older teens.

In sum, we conclude that convictions under [California's statutory rape laws] do not categorically constitute “sexual abuse of a minor.” This conclusion becomes even more apparent when we reconsider the facts of this case. There is no suggestion of abuse in any form. The couple had a relationship, approved by both parents, and lived together in the home of the petitioner’s parents. They had a child together, ultimately moved into a separate residence, and [the Defendant] worked to support this family. If they had solemnized their relationship by marriage, no prosecution would have been possible under § 261.5(c).

A Ninth Circuit panel reached a similar result in a case last year, though that case involved a larger age gap. The court drew a distinction between and malum in se sex offenses (inherently harmful and wrong) malum prohibitum sex offenses (statutorily prohibited but not inherently wrong). Since there were few facts in the record, the court resort to hypothetical:

In other words, among the range of conduct criminalized by [the California statute for statutory rape with a five-year age gap], would be consensual intercourse between a 21-year-old (possibly a college sophomore) and a minor who is 15 years, 11 months (possibly a high school junior). That relationship may very well have begun when the older of the two was a high school senior and the younger a high school freshman and have continued monogamously without intercourse for two to three years before the offending event. On its face, such behavior may be unwise and socially unacceptable to many, but it is not “inherently base, vile, or depraved,” or accompanied by a “vicious motive or corrupt mind." Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.” In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an “act of baseness or depravity contrary to accepted moral standards.”

This reasoning makes sense to me; it is, essentially, a recognition of the important difference between statutory rape and actual rape. We allow an age difference to stand in, as it were, for lack of consent because we feel that such relationships are risky, unwise, and on the whole should be discouraged. But few of us really believe that these are the same thing, equally meriting the extremely strong medicine of deportation.