PC 289(e)

PC 289(e)

Offense

Sexual penetration if D knew or should have known that V was too intoxicated to consent

Aggravated Felony (AF)

Assume it will be an AF as rape regardless of sentence, but see also discussion at 289(a)(1)(A), Advice.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT (imm advocates could investigate defense based on “should have known” standard but must pursue other defenses at the same time.)

Other Removal Grounds

See 289(a)(1)(A)

Advice and Comments

Rape. See 289(a)(1)(A) regarding definition of rape and penetration.

Ninth Cir held that “should have known” that V was impaired meets the mental state requirement for rape; see PC 261.

COV. This might be held not a COV under Stokeling because actual force, even minor, is not required. See discussion at PC 207 and 289(a). But if it is an AF as rape, this provides no advantage.

2020-05-19T18:19:39+00:00Updated January 29th, 2020|