Sexual penetration by force or duress
Aggravated Felony (AF)
Assume AF as rape, regardless of sentence, but see Advice.
Arguably not an AF as a COV. See Advice.
Crime Involving Moral Turpitude (CIMT)
Other Removal Grounds
If it is a COV, it is a deportable crime of DV if V and D share a protected relationship.
Not child abuse even if a minor V, because age is not an element. Still, do not let the reviewable record (charge, plea colloquy, factual basis, judgment) reflect the age of a minor victim
Advice and Comments
Rape. The BIA held that the generic definition of rape includes any penetration, including digital or mechanical, and that would include all of PC 289(a). Advocates in removal proceedings can investigate arguing to the Ninth Circuit that its generic definition of rape has included or should include only intercourse; that would make PC 289 overbroad. They should seek other defense strategies including post-conviction relief while pursuing this.1Advocates can make this argument, but have no guarantee of winning. The BIA held that rape encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Matter of Keely, 27 I&N Dec. 146 (BIA 2017). The Ninth Circuit repeatedly has defined rape as involving “intercourse,” beginning with the definition in Black’s Law Dictionary, but it is not clear whether intercourse excludes digital or mechanical, as opposed to penile, penetration. See, e.g., Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir. 2018) holding, that forcible sodomy under Pen C § 286(i) is rape because it is “intercourse,” while also citing the Board’s “comprehensive overview of the ordinary and contemporary definition of ‘rape’” in Matter of Keeley, supra at 147–152 – an overview that includes digital and mechanical penetration in the definition of rape.
Consider 459/460(a) or (b), which can take a year or more, or 243.4, 236/237, which arguably can.
COV. This should not be a COV because it can be committed by psychological duress not based on threat of force or violence.2The Ninth Circuit held that Pen C § 289(a) is not a COV under a standard nearly identical to 18 USC § 16(a), because it could be committed by “duress,” which need not involve any force or the threat of force. U.S. v. Espinoza-Morales, 621 F.3d 1141, 1147-48 (9th Cir. 2010). To illustrate this, the court cited to People v. Minsky, 105 Cal. App. 4th 774, 129 Cal. Rptr. 2d 583, 584-85 (Cal. Ct. App. 2003), review granted and then dismissed, 23 Cal. Rptr. 3d 694, 105 P.3d 115 (2005), where the defendant “was convicted under section 289(a) for posing as a lawyer and tricking women into believing that a loved one had just been arrested and was facing mandatory jail time for a hit-and-run, and then posing as the hit-and-run victim or witness and offering to drop the charges or to refuse to testify if the woman submitted to sex acts.” It also cited to People v. Cardenas, 21 Cal. App. 4th 927, 26 Cal. Rptr. 2d 567, 568 (Cal. Ct. App. 1994), where the defendant “was convicted under section 289(a) for inducing his victims to consent to sex acts by pretending to be a faith healer who could cure them.
Arguably this also means that § 289(a) is not a COV under the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019). There the 5/4 majority found that Florida robbery is a COV, because “overcoming the resistance of the victim” in a robbery involves a confrontation that is inherently violent, even though it can be committed using a very small amount of force. Section 289(a) may involve overcoming the resistance of the victim, but it should not come within Stokeling if it involves no force at all, but rather psychological manipulation. However, because the Stokeling issue has not yet been litigated, counsel should conservatively assume it may be charged as a COV. But if it is AF as rape, this provides no advantage.