US Dist Ct: OR statutory rape not sexual abuse of minor aggravated felony

A federal district court in Oregon recently determined that Oregon’s rape in the third degree offense, which the court referred to as “statutory rape,” does not meet the requirements the sexual abuse of a minor type of aggravated felony. United States v. Vidal-Mendoza, No. 10-393-MA, 2011 WL 1560987, 2011 U.S. Dist. LEXIS 44333 (D.Or. Apr. 25, 2011) (Marsh, J.).

This case involved an individual who was convicted of rape in the third degree, Or. Rev. Statute § 163.355, “involv[ing] consensual contact between defendant, who was 21 or 22 years old at the time, and his then girlfriend (who was under the age of 16).” The Oregon statute allows for a conviction “if the person has sexual intercourse with another person under 16 years of age.” O.R.S. § 163.355(1). For its part, the INA does not define sexual abuse of a minor. INA § 101(a)(43)(A).

In the Ninth Circuit, of which Oregon is part, to determine whether the state offense is sexual abuse of a minor for purposes of immigration law the elements of the state offense must match up with the elements of “sexual abuse of a minor” as defined in federal criminal law at 18 U.S.C. § 2243. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008).

According to Estrada-Espinoza, “the generic offense of ‘sexual abuse of a minor’ requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.”

Using the categorical approach to statutory interpretation to compare the elements of the Oregon offense with those of the federal crime of sexual abuse of a minor, the district court concluded that the state offense reaches actions that the federal law does not: “Because O.R.S. 163.355 does not require a four year age difference between the defendant and the minor, it is broader than the generic offense of sexual abuse of a minor and, therefore, is not categorically an aggravated felony under [18 U.S.C.] § 1101(a)(43)(A).”