This court analyzes the issue of whether the offense of “unlawful sexual intercourse with a minor” under Section 261.5(d) of the California Penal Code meets the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(A), which includes “sexual abuse of a minor” using the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, (1990) and Shepard v. United States, 544 U.S. 13 (2005).
Under the categorical approach, this court compares the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.
This court must first identify the elements of the generic federal crime of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). This court has set out two different generic federal definitions of “sexual abuse of a minor.” For purposes of 8 U.S.C. § 1101(a)(43)(A), Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C.§ 2243. Section 2243 states, in pertinent part: Whoever . . . knowingly engages in a sexual act with another person who—(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. The mens rea of “knowingly” in § 2243(a) is limited by 18 U.S.C. § 2243(d), which states: “In a prosecution under § 2243(a), the Government need not prove that the defendant knew—(1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging.” Because the mens rea requirement of “knowingly” does not apply to knowledge of the victim’s age, or the age difference between the defendant and the victim, it can apply only to the defendant’s act of engaging in a sexual act. Although § 2243(a) does not spell out the situations in which a person might fail to meet this mens rea requirement, presumably a jury could find that a defendant who was extremely intoxicated or otherwise incapacitated did not knowingly engage in a sexual act. Accordingly, a statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of “knowingly” (as to engaging in the act); (2) a sexual act (3) with a minor who is at least 12 but not yet 16 years of age; and (4) an age difference of at least four years between the defendant and the minor.
It was previously held in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), which distinguished Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), that § 2243 of Title 18 encompassed statutory rape crimes only, and therefore was not the only federal generic definition of “sexual abuse of a minor. Statutory rape crimes are sexual offenses involving older as well as younger adolescents, not crimes prohibiting conduct harmful to younger children specifically. This category of sexual offenses does not include “physical or psychological harm” to a child.
Under United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), a crime may also qualify as the federal generic offense of “sexual abuse of a minor” if it meets the definition set forth in United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) and other cases. Specifically, a crime that is not a statutory rape crime may qualify as the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive.
After determining the elements of the generic federal crime of sexual abuse of a minor, the next step in the categorical approach is to identify the elements of the specific crime of conviction, which in the instant case is Section 261.5(d) of the California Penal Code. This section provides: “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. The statute defines the term “unlawful sexual intercourse” as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.
On its face, Section 261.5(d) of the California Penal Code contains the following elements: (1) sexual intercourse with another person; (2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person was under the age of 16 years at the time of intercourse. It does not include a scienter requirement. Where the Section 261.5(d) of the California Penal Code does not expressly include a scienter requirement, this court concludes that it is a strict liability crime.
This court next considers whether Section 261.5(d) of the California Penal Code criminalizes the same conduct as the federal generic crime. Comparing the elements of 261.5(d) of the California Penal Code with the elements of 18 U.S.C. § 2243, this court concludes that Section 261.5(d) criminalizes a broader range of conduct than § 2243 because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant “knowingly” engaged in a sexual act. If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Accordingly, this court concludes that Section 261.5(d) of the California Penal Code is not categorically an aggravated felony.
This court disagrees with the government’s contention that Section 261.5(d) of the California Penal Code contains a scienter element that is equivalent to the scienter element in 18 U.S.C. § 2243. Even though this court has previously noted that a defendant may raise a limited mistake-of-age defense to a conviction under Section 261.5(d), the availability of a mistake-of-age defense is not equivalent to the requirement that the government proves that the defendant had the requisite state of mind. Therefore, the existence of this defense does not add a scienter element to Section 261.5(d). But even if it did so, the scienter required for a mistake-of-age defense is not the same as the scienter element in 8 U.S.C. § 2243. The government might rebut a mistake-of-age defense by proving that the defendant knew or should have known the age of the minor involved in the offense; this is not the same as proving (under § 2243) that the defendant knowingly engaged in the act of sexual intercourse. Therefore, Section 261.5(d) of the California Penal Code does not require proof of the scienter element in 8 U.S.C. § 2243.
This court next compares the elements of Section 261.5(d) of the California Penal Code with the elements of the federal generic crime of “sexual abuse of a minor” as defined in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009). Section 261.5(d) contains two of the three elements of the federal generic crime of “sexual abuse of a minor” identified in Medina-Villa, in that it (1) prohibits sexual intercourse with (2) a minor. But Section 261.5(d) criminalizes a broader range of conduct than the crime delineated in Medina-Villa because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant’s conduct constituted “abuse.” A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive. Section 261.5(d) does not expressly include physical or psychological abuse of a minor as an element of the crime. Nor can this court hold that Section 261.5(d) criminalizes only conduct that is per se abusive, because it is not limited to conduct targeting younger children. Accordingly, this court concludes that section 261.5(d) is not categorically “sexual abuse of a minor” as defined in Medina-Villa.
The government’s argument that Section 261.5(d) of the California Penal Code does meet the definition of sexual abuse of a minor in Medina-Villa because it applies to minors under the age of 16 is a misreading of the Medina-Villa statement that there is “a significant difference” between a victim “under 16” and a victim “between the ages of 16 and 18.” The court in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc) acknowledged that there is a significant difference between sexual relations with someone under 16 and sexual relations with someone between the ages of 16 and 18, to support its determination that sexual conduct with older minors is not necessarily abusive. The court in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) then used the same statement to support the complementary insight that sexual relations with younger children are significantly different than sexual relations with teenagers. But neither Medina-Villa nor Estrada-Espinoza enunciated a rule that sexual conduct with a minor a day shy of 16 is per se abusive, and indeed such a holding would be contrary to the conclusion in Medina-Villa that the conduct criminalized by § 2243 includes non-abusive conduct. Because Section 261.5(d) of the California Penal Code does not include the relevant scienter requirement of 18 U.S.C. § 2243, and criminalizes sexual conduct that is not necessarily abusive, this court concludes that Section 261.5(d) does not qualify as the generic federal crime of “sexual abuse of a minor,” and therefore is not categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
If the specific crime of conviction does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis. Under the modified categorical approach, this court examines specified judicial records to determine whether a defendant was necessarily convicted of the elements of the federal generic crime.
Where the government has not asked this court to undertake a modified categorical analysis, and where the government could not have done so as the record contains only two documents of conviction (a felony complaint and the clerk’s order of probation) neither of which indicates the age of the victim or establishes that the petitioner was convicted of a crime involving sexual conduct with a younger child, a modified categorical analysis cannot be conducted by this court.
Because the petitioner’s conviction for unlawful sexual intercourse in violation of Section 261.5(d) of the California Penal Code does not qualify as the federal generic crime of “sexual abuse of a minor,” it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Therefore, the IJ and BIA erred in concluding that the petitioner was deportable due to his prior conviction. The petition for review is therefore granted.
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