Matter of KEELEY, 27 I&N Dec. 146 (BIA 2017)
(1) The term "rape" in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.
(2) The term "rape" also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.
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Matter of David Paul KEELEY, Respondent
Decided October 20, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral
intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez
v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.
(2) The term “rape” also requires that the underlying sexual act be committed without
consent, which may be shown by a statutory requirement that the victim’s ability to
appraise the nature of the conduct was substantially impaired and the offender had a
culpable mental state as to such impairment.
FOR RESPONDENT: Amanda H. Frost, Esquire; and Doran Shemin, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Meggan G. Johnson,
Associate Legal Advisor
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated August 8, 2016, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted
of an aggravated felony rape under section 101(a)(43)(A) of the Act, 8 U.S.C.
§ 1101(a)(43)(A) (2012), and ordered him removed from the United States.1
The respondent has appealed from that decision. The appeal will be
dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the United Kingdom who
became a lawful permanent resident of the United States on June 23, 1997.
On January 13, 2011, he was convicted of rape in violation of section
2907.02(A)(1)(c) of the Ohio Revised Code Annotated. The Immigration
Judge determined that the respondent’s offense was an aggravated felony
1 Section 101(a)(43)(A) of the Act defines the term “aggravated felony” as “murder, rape,
or sexual abuse of a minor.”
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under section 101(a)(43)(A) of the Act. The respondent did not apply for
any relief from removal, and the Immigration Judge ordered him removed.
II. POSITIONS OF THE PARTIES
The parties agree that, at all relevant times, section 2907.02(A)(1)(c) of
the Ohio Revised Code Annotated made it unlawful to “engage in sexual
conduct” with another with knowledge or reason to know of the fact that the
other person’s ability to resist or consent is “substantially impaired because
of a mental or physical condition or because of advanced age.” The parties
further agree that the term “sexual conduct” was, at all relevant times,
defined in section 2907.01(A) as
vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal opening of another.
The parties also generally agree that “rape” in section 101(a)(43)(A) of
the Act refers to an offense that encompasses some form of sexual act that is
committed under certain prohibitive conditions, including incapacity to
consent to the sexual act. There are two points of contention in this case.
First, the parties disagree on whether “rape” in section 101(a)(43)(A)
encompasses digital or mechanical penetration or is confined to acts of
vaginal, anal, or oral intercourse. Second, they dispute whether the
“substantial impairment” standard under Ohio law is synonymous with an
incapacity to consent.2
Whether the respondent’s conviction is for an aggravated felony rape
offense under section 101(a)(43)(A) of the Act is a question of law that we
review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).
III. ANALYSIS
Our inquiry is governed by the categorical approach set forth in Taylor
v. United States, 495 U.S. 575 (1990), and its progeny. This approach
requires us to compare the scope of conduct punished as rape under section
2907.02(A)(1)(c) of the Ohio Revised Code Annotated to the generic
definition of “rape” in section 101(a)(43)(A) of the Act.
2 We do not purport to resolve all aspects of the definition of “rape” in section
101(a)(43)(A) of the Act. We will only address the Ohio statute in light of the contentions
advanced by the parties, below and on appeal. For example, we need not reach any issues
regarding oral sex and its relationship to penetration. Those issues are reserved for future
decisions.
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The term “rape” was added to section 101(a)(43)(A) by section 321(a)(1)
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627.
This term is not defined by the Act or any other provision of Federal law. In
the absence of a statutory definition, we must define the term according to its
ordinary, contemporary meaning in 1996, when “rape” was added to section
101(a)(43)(A). See Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016)
(finding “it appropriate to adopt a generic definition [of a crime] based on
how [it] was commonly defined” when section 101(a)(43) was enacted).
To fully understand the meaning of “rape” in 1996, we must examine the
evolution of rape offenses, and sex offenses in general, from their common
law roots to Congress’ addition of the term to the Act. Common law
recognized two sexual offenses: rape and sodomy. 1 Wayne R. LaFave,
Substantive Criminal Law § 2.1 (2d ed.), Westlaw (database updated Oct.
2017). The common law defined rape as “the carnal knowledge of a woman
forcibly and against her will,” and for the first half of the 20th century, State
laws proscribing rape followed this definition. 2 LaFave, supra, § 17.1
(quoting 4 William Blackstone, Commentaries on the Laws of England 210
(1769)). Such “carnal knowledge” referred to the “physical act necessary for
rape,” namely, the “penetration of the female sex organ by the male organ.”
Id. “Sodomy” in early American jurisprudence deviated from its common
law definition, which prohibited anal intercourse between two men,
including acts such as anal and oral intercourse between two males or a male
and a female. See Model Penal Code §§ 213.0(3), 213.2 cmt. 1 at 357−62
(1980) (regarding “deviate sexual intercourse”).
The Model Penal Code recognized the first notable shift in the definition
of rape in the early 1960s. The term “carnal knowledge” was replaced with
“sexual intercourse,” which the Model Penal Code defined as including
vaginal, anal, and oral intercourse. Model Penal Code § 213.1(1) (1962).
This change acknowledged the growing community consensus that
intercourse was the defining act that separated rape from other forms of
nonconsensual sexual contact. See Model Penal Code § 213.1 cmt. 8(d) at
346 (1980) (discussing the three categories of rape statutes that existed at the
time: (1) those that punish “only genital copulation”; (2) those that reach
“anal and oral copulation”; and (3) those that “include digital or mechanical
penetration as well as genital, anal, and oral sex”). This change also
earmarked the use of “rape” as an all-encompassing term to refer to
offenses with the common characteristic of sexual intercourse. See id.
(acknowledging that by including oral and anal intercourse in the definition
of “sexual intercourse,” the definition of rape necessarily included
“behavior . . . punished in many jurisdictions under sodomy laws”).
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The meaning of “rape” continued to evolve during the rape reform
movement, which started in the early 1970s. See David P. Bryden,
Redefining Rape, 3 Buff. Crim. L. Rev. 317, 320–21 (2000); Cassia C.
Spohn, The Rape Reform Movement: The Traditional Common Law and
Rape Law Reforms, 39 Jurimetrics J. 119, 122–30 (1999); see also Patricia
Wencelblat, Boys Will Be Boys? An Analysis of Male-on-Male Heterosexual
Sexual Violence, 38 Colum. J.L. & Soc. Probs. 37, 44 (2004) (“All state
legislatures considered changes to their rape laws between 1974 and 1980.”).
Among other things, the changes included making the offense gender-neutral
as to both the perpetrator and victim and further broadening the types of
sexual acts covered. See Bryden, supra, at 321; Spohn, supra, at 122. The
movement also resulted in numerous States renaming what they previously
labeled “rape” with terms like “sexual assault,” “sexual battery,” and
“criminal sexual conduct.” See Bryden, supra; Spohn, supra. “Th[ese]
statutory development[s], ‘when viewed in totality, ha[ve] resulted in a
modern crime which has little in common with its common-law
ancestor . . . .’” Taylor, 495 U.S. at 593 (citation omitted).
The respondent argues that the scope of our inquiry into the ordinary,
contemporary meaning of “rape” in 1996 should be limited to examining the
laws of the 23 States that prohibited a crime specifically called “rape” at that
time. 3 Because less than a majority of these States included digital or
mechanical penetration in the definition of rape, he argues that the
community consensus in 1996 was that such conduct was not rape.4
The United States Court of Appeals for the Fifth Circuit adopted a similar
approach in Perez-Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012). In
that case, the court found that in 1996 a minority of States included digital
penetration in statutes punishing a crime called “rape,” while most States and
3 Ala. Code §§ 13A-6-61, -62 (1996); Ark. Code Ann. § 5-14-103 (Michie 1996); Cal.
Penal Code §§ 261, 262 (West 1996); Ga. Code Ann. § 16-6-1 (1996); Idaho Code
§ 18-6101 (1996); Ind. Code § 35-42-4-1 (1996); Kan. Stat. Ann. § 21-3502 (1996);
Ky. Rev. Stat. Ann. §§ 510.040, .050, .060 (Michie 1996); La. Rev. Stat.
Ann. §§ 14:41, :42, :42.1, :43 (West 1996); Md. Ann. Code art. 27, §§ 462, 463 (1996);
Mass. Gen. Laws ch. 265, §§ 22, 23 (1996); Mo. Rev. Stat. §§ 566.030, .032, .034 (1996);
N.Y. Penal Law §§ 130.25, .30, .35 (McKinney 1996); N.C. Gen. Stat. §§ 14-27.2, .3
(1996); Ohio Rev. Code Ann. § 2907.02 (Anderson 1996); Okla. Stat. tit. 21, §§ 1111, .1
(1996); Or. Rev. Stat. §§ 163.355, .365, .375 (1996); 18 Pa. Cons. Stat. § 3121 (1996); S.D.
Codified Laws § 22-22-1 (Michie 1996); Tenn. Code Ann. §§ 39-13-502, -503 (1996);
Utah Code Ann. §§ 76-5-402, -402.1, -402.2, -402.3 (1996); Va. Code Ann. § 18.2-61
(Michie 1996); Wash. Rev. Code §§ 9A.44.040, .050, .060, .073, .076, .079 (1996).
4 In 1996, eight States had expanded the term “rape” to include both mechanical and
digital penetration: Arkansas, Kansas, Massachusetts, Ohio, Oklahoma, South Dakota,
Tennessee, and Washington. See Appendix A. Kentucky and Utah added only mechanical
penetration to its definition of “rape.” See id.
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the District of Columbia did not. Based on this survey, the court concluded
“that digital penetration was [not] commonly considered rape in 1996.” Id.
We respectfully disagree with this conclusion.
In our view, the respondent’s argument and the Fifth Circuit’s approach
rest on the faulty proposition that the laws of the 27 States and the District of
Columbia that used terms other than “rape” to refer to crimes prohibiting
forms of nonconsensual sexual intercourse in 1996 are irrelevant to
determining the generic definition of “rape.” The community consensus in
1996 was that the newly denominated crimes of “sexual assault,” “sexual
battery,” and “criminal sexual conduct” were synonymous with “rape.” See
Bryden, supra; Spohn, supra; see also Black’s Law Dictionary 1267 (7th ed.
1999) (stating that “rape” is “[a]lso termed (in some statutes) unlawful sexual
intercourse; sexual assault; sexual battery; [and] sexual abuse”). And many
of the relevant jurisdictions treated these crimes and “rape” as being
“interchangeable,” “synonymous,” or “equivalent.”5 As the Illinois Supreme
Court has explained, the goal of renaming these crimes was “to take a
hodgepodge of preexisting statutes and fit them into a consistent coherent
whole which is a spectrum of sex offenses . . . [and] create[] one
5 See, e.g., Reynolds v. State, 664 P.2d 621, 623 (Alaska Ct. App. 1983) (referring to rape
as the “predecessor” to the State offense of “sexual assault”); State v. Superior Court of
Ariz., 744 P.2d 725, 727 (Ariz. Ct. App. 1987) (“The term ‘rape’ was eliminated, and what
were formerly . . . rape situations are now defined separately” as “sexual assault” and
“sexual conduct with a minor”); Wicks v. State, 559 A.2d 1194, 1195 (Del. 1989)
(providing that the Legislature “deleted the crime of rape . . . and substituted a crime known
as unlawful sexual intercourse . . . , which . . . . [includes] all the elements previously
required to establish the commission of rape”); Adams v. State, 412 So. 2d 850, 856 (Fla.
1982) (“Acts which would have constituted rape or attempted rape [now] constitute
a sexual battery or attempt to commit sexual battery . . . .”); State v. Kamana‘o, 82 P.3d
401, 402 n.3 (Haw. 2003) (“The offenses of rape . . . and sodomy . . . are now subsumed
within [a single offense that] has been redenominated ‘sexual assault . . . .’”); Hovey v. Iowa
State Daily Publ’n Bd., Inc., 372 N.W.2d 253, 256 (Iowa 1985) (“Legal writers who have
attempted to interpret the new Iowa Criminal Code . . . have noted that the terms ‘rape’ and
‘sexual abuse’ are regarded interchangeably.”); State v. James-El, No. C7-96-365, 1996
WL 363385, at *2 (Minn. Ct. App. July 2, 1996) (providing that “the Minnesota equivalent
to appellant’s Illinois rape convictions is criminal sexual conduct”); State v. Spotted
Blanket, 955 P.2d 1347, 1348 (Mont. 1998) (characterizing the offense of “sexual
intercourse without consent” as “rape[]”); State v. Ayer, 612 A.2d 923, 925 (N.H. 1992)
(“Rape [is] the common law counterpart to aggravated felonious sexual assault . . . .”);
State v. Cruz, 593 A.2d 1169, 1174 (N.J. 1991) (stating that the crime of rape “has been
replaced by the equivalent or parallel crime of aggravated sexual assault”); State v. Tafoya,
227 P.3d 92, 107 (N.M. Ct. App. 2010) (stating that criminal sexual penetration “statutes
were intended to codify the common law crime of rape”); Slocumb v. State, 522 S.E.2d
809, 811 n.7 (S.C. 1999) (“We have equated ‘rape’ with the revised statutory term ‘criminal
sexual conduct.’”); State v. Allison, 299 N.W.2d 286, 286 n.1 (Wis. Ct. App. 1980) (“The
crime formerly known as ‘rape’ is now denominated ‘sexual assault’ . . . .”).
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comprehensive law that reflects the fact that rape encompasses all types of
sexual assault.” In re Detention of Lieberman, 776 N.E.2d 218, 226 (Ill.
2002) (alterations in original) (emphasis added) (citation omitted).
Around the time the States were redesignating these offenses, Congress
replaced the Federal crime of “rape” under former 18 U.S.C. § 2031 (1982),
with “aggravated sexual abuse” and “sexual abuse.” Criminal Law and
Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646, § 87,
100 Stat. 3592, 3620–21 (codified at 18 U.S.C. §§ 2241, 2242 (1988)).
Congress pursued these changes in an effort to “modernize[] and reform[]
Federal rape laws.” 132 Cong. Rec. H11,291, H11,292 (daily ed. Oct. 17,
1986) (statement of Rep. Berman), 1986 WL 788882, at *H11291-01
(emphasis added). In other words, Congress’ restyling of “rape” as
“aggravated sexual abuse” and “sexual abuse” was intended to remove
barriers associated with the traditional understanding of rape and to bring
Federal law in line with the growing consensus among the States that the
term “rape” refers to a broader range of unacceptable conduct than a male
coercing a female to engage in sexual intercourse. See generally H.R.
Rep. No. 99-594, at 10–11 (1986), reprinted in 1986 U.S.C.C.A.N. 6186,
6190–91. Therefore, despite the fact that Congress redenominated rape as
new offenses, it still viewed these offenses as being forms of “rape.”
Congress’ enactment of the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, supports our conclusion
in this regard. As relevant here, this Act imposed mandatory prison
sentences for individuals with certain prior violent felony convictions. See
id. § 70001, 108 Stat. at 1982–84. Congress defined one such offense,
“assault with intent to commit rape,” as having the elements of “engaging in
physical contact with another . . . with intent to commit aggravated sexual
abuse or sexual abuse (as described in sections 2241 and 2242).” Id. § 70001,
108 Stat. at 1983 (codified at 18 U.S.C. § 3559(c)(2)(A) (1994)). Thus,
2 years prior to the addition of the term “rape” to section 101(a)(43)(A) of
the Act, Congress was using the terms “aggravated sexual abuse,” “sexual
abuse,” and “rape” interchangeably.
In the Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, § 10,
117 Stat. 972, 988 (codified at 42 U.S.C. § 15609(9) (2006)), Congress
defined the offense of “rape,” returning to that term to proscribe the same
sexual misconduct it had previously labeled as “aggravated sexual abuse”
and “sexual abuse.”6 Compare id. § 10, 117 Stat. at 988, with 18 U.S.C.
6 Delaware has also returned to using “rape” to proscribe nearly identical offenses after
it defined various degrees of “unlawful sexual intercourse” in 1996. See Del. Code Ann.
tit. 11, §§ 773, 774, 775 (1996); S.B. 226, 139th Gen. Assemb., 2d Reg. Sess., 1998
Delaware Laws Ch. 285 (renumbered at Del. Code Ann. tit. 11, §§ 771, 772, 773).
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§§ 2241, 2242. This is further evidence that Congress, like many of the
States, has used other terms interchangeably with the term “rape.”7
It is unlikely that in defining one of “the most heinous crimes” it has
included as an aggravated felony, Esquivel-Quintana v. Sessions, 137 S. Ct.
1562, 1570 (2017), Congress intended to exclude comparably heinous
offenses that were outlawed by the majority of jurisdictions across the
country merely because they were labeled differently. Additionally, we see
no principled reason for allowing the laws of some States to inform our
understanding of rape but, at the same time, ignoring substantially similar
laws from other jurisdictions based solely on the label they employed. See
Taylor, 495 U.S. at 589 (providing that the focus of the categorical approach
is to identify “crimes having certain common characteristics . . . regardless
of how they were labeled by state law”). Compare, e.g., Ohio Rev. Code
Ann. § 2907.02 (Anderson 1996) (defining “rape”), S.D. Codified Laws
§ 22-22-1 (Michie 1996) (same), and Tenn. Code Ann. §§ 39-13-502, -503
(1996) (defining “aggravated rape” and “rape”), with 720 Ill. Comp. Stat.
5/12-13, 5/12-14 (West 1996) (defining “criminal sexual assault” and
“aggravated criminal sexual assault”), Mont. Code Ann. § 45-5-503 (1996)
(defining “sexual intercourse without consent”), Nev. Rev. Stat. § 200.366
(1996) (defining “sexual assault”), and N.M. Stat. Ann. § 30-9-11 (Michie
1996) (defining “criminal sexual penetration”). Indeed, such a label-centric
approach runs counter to the very purpose of the categorical approach.
For these reasons, we find it appropriate to examine Federal law and the
laws of all 50 States and the District of Columbia in 1996 as they relate to
crimes involving unlawful sexual intercourse to inform our understanding of
the ordinary, contemporary meaning of the term “rape” at the time of its
inclusion in the definition of an aggravated felony. See Esquivel-Quintana,
137 S. Ct. at 1570–72.
A. Sexual Act
The consensus among the States in 1996 was that rape entailed not only
acts of vaginal, anal, and oral intercourse but also digital and mechanical
penetration of the vagina or anus. At that time, the significant majority of
7 We recognize that Congress had the opportunity to use a term such as “sexual abuse” in
addition to, or in lieu of, the term “rape.” See, e.g., 142 Cong. Rec. S4058-02 (1996).
However, it is not persuasive that in choosing to use “rape” in section 101(a)(43)(A) of the
Act, Congress meant to return to a narrow common law definition that it rejected a decade
earlier, as opposed to merely adopting a generic term that is to be defined according to its
accepted meaning at the time of enactment. See generally Taylor, 495 U.S. at 591
(requiring a “clear indication that . . . Congress intended to abandon its general approach
of using uniform categorical definitions to identify predicate offenses”).
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States and the District of Columbia proscribed acts of digital and mechanical
penetration in their statutes prohibiting rape and other comparable sexual
offenses.8 A total of 32 jurisdictions included both digital and mechanical
penetration, while 4 included mechanical, but not digital, penetration. See
Appendix A. Because a majority of jurisdictions defined rape to include
digital and mechanical penetration, we conclude that such offenses are also
covered by the definition of “rape” in section 101(a)(43)(A) of the Act.
The rationale for including digital and mechanical penetration is not
difficult to discern. “The essential interests protected by the law of rape—
the [victim’s] freedom of choice and immunity from unwanted intimacy”—
are fully implicated, regardless of the manner in which the penetration is
accomplished. Model Penal Code § 213.1 (1980).
We are persuaded in part by the fact that the closely related Federal
crimes of “aggravated sexual abuse” and “sexual abuse” defined in 18 U.S.C.
§ 2241 and § 2242 were similarly drafted. See Matter of M-W-, 25 I&N Dec.
at 752 n.5 (noting that, in formulating the generic definition of a term
appearing in the Act’s list of aggravated felonies, reliance should be placed
“to a significant degree” on the Federal definition of an offense because
removal proceedings are a function of Federal law). These statutes make it
unlawful, in various circumstances, to engage in a “sexual act” with another.
As of 1996, “sexual act” was defined, in relevant part, as “the penetration,
however slight, of the anal or genital opening of another by a hand or finger
or by any object.” 18 U.S.C. § 2246(2)(C) (1994).
8 It is not clear how many jurisdictions in 1996 would ultimately conform to the Fifth
Circuit’s understanding of rape in Perez-Gonzalez. The laws of 35 States and the District
of Columbia would fail from the outset for being overbroad, and likely indivisible, for
including digital and/or mechanical penetration. See Appendix A. The Fifth Circuit also
opined, in dicta, that “rape” entails other common law concepts, such as a lack of gender
neutrality (that is, the aggressor must be male and the victim female), a requirement of
penile-vaginal penetration, and a requirement that force be used or threatened. See
Perez-Gonzalez, 667 F.3d at 626. By our count, that would eliminate the comparable sex
offenses of 12 of the remaining 15 jurisdictions. See Cal. Penal Code § 261(a); Del. Code
Ann. tit. 11, § 775(a); Idaho Code § 18-6101; Ind. Code § 35-42-4-1; La. Rev. Stat. Ann.
§ 14:41; Md. Ann. Code art. 27, §§ 462, 463; Miss. Code Ann. § 97-3-67 (1996); N.C. Gen.
Stat. §§ 14-27.2, .3; Or. Rev. Stat. § 163.375; 18 Pa. Cons. Stat. § 3121(4); Va. Code Ann.
§ 18.2-61; see also People v. Liberta, 474 N.E.2d 567, 578–79 (N.Y. 1984) (indicating that
New York’s rape offense is gender neutral). We do not believe such a narrow definition
encompasses a “general consensus” of the laws throughout the country in 1996.
Esquivel-Quintana, 137 S. Ct. at 1572; see also Torres v. Lynch, 136 S. Ct. 1619, 1628
(2016) (reaffirming the principle that the categorical approach should not be applied so as
to produce the “haphazard” result of preventing the Act from applying to a significant
majority of State offenses).
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Thus, we conclude that “rape” under section 101(a)(43)(A) of the Act
includes an act of vaginal, anal, or oral intercourse or digital or mechanical
penetration of the vagina or anus, no matter how slight.9
9 While not at issue in this case, we note that most jurisdictions have historically included
a “penetration” requirement in rape statutes. See Model Penal Code § 213.1 cmt. 8(d) at
346–48 (1980). However, by 1996 the majority of jurisdictions, 29 in total, did not require
penetration in cases of oral intercourse. These jurisdictions include (1) Alaska, Alaska Stat.
§ 11.81.900(a)(55)(A) (Michie 1996); Murray v. State, 770 P.2d 1131, 1139 (Alaska Ct.
App. 1989); (2) Arizona, Ariz. Rev. Stat. § 13-1401(A)(1) (1996); (3) Connecticut, Conn.
Gen. Stat. § 53a-65(2) (1996); State v. Kish, 443 A.2d 1274, 1279 (Conn. 1982), overruled
in part on other grounds by State v. Avcollie , 453 A.2d 418 (Conn. 1982); (4) Delaware,
Del. Code Ann. tit. 11, §§ 761(a), (b), (e)(2); (5) District of Columbia, D.C. Code Ann.
§ 22-4101(8)(B) (1996); (6) Florida, Fla. Stat. Ann. § 794.011(1)(h) (West 1996); Richards
v. State, 738 So. 2d 415, 418 (Fla. Dist. Ct. App. 1999); State v. Pate, 656 So. 2d 1323,
1325 (Fla. Dist. Ct. App. 1995); (7) Illinois, 720 Ill. Comp. Stat. 5/12-12(f); People
v. Torres, 568 N.E.2d 157, 162 (Ill. App. Ct. 1991); (8) Iowa, Iowa Code § 702.17 (1996);
(9) Maine, Me. Rev. Stat. Ann. tit. 17-A, § 251(1)(C)(1) (West 1996); (10) Massachusetts,
see Commonwealth v. Gallant, 369 N.E.2d 707 (Mass. 1977); see also Commonwealth
v. King, 834 N.E.2d 1175, 1184 (Mass. 2005); Commonwealth v. Benoit, 531 N.E.2d 262,
266 (Mass. App. Ct. 1988); Commonwealth v. Mosby, 413 N.E.2d 754, 765–66 (Mass. App.
Ct. 1980); (11) Michigan, Mich. Comp. Laws § 750.520a(l) (1996); People v. Conway, 666
N.W.2d 185 (Mich. 2003); (12) Minnesota, Minn. Stat. § 609.341(12)(1) (1996); State
v. Blom, 358 N.W.2d 63, 64 (Minn. 1984); (13) Nebraska, Neb. Rev. Stat. §§ 28-318(6)
(1996); State v. Brown, 405 N.W.2d 600, 607 (Neb. 1987); (14) Nevada, Nev. Rev. Stat.
§ 200.364(2); Hutchins v. State, 867 P.2d 1136, 1141 (Nev. 1994); Maes v. Sheriff, Clark
Cty., 582 P.2d 793, 794 (Nev. 1978); (15) New Hampshire, N.H. Rev. Stat. Ann.
§ 632-A:1(V) (1996); State v. Melcher, 678 A.2d 146, 148 (N.H. 1996); (16) New Jersey,
N.J. Stat. Ann. § 2C:14-1(c) (West 1996); In re Interest of S.M., 666 A.2d 177, 180 (N.J.
Super. Ct. App. Div. 1995); (17) New Mexico, N.M. Stat. Ann. § 30-9-11(A); State
v. Orona, 638 P.2d 1077, 1080 (N.M. 1982); State v. Delgado, 815 P.2d 631, 633 (N.M.
Ct. App. 1991); (18) North Dakota, N.D. Cent. Code § 12.1-20-02(3) (1996); State
v. Johnson, 379 N.W.2d 291, 292 (N.D. 1986); (19) Ohio, Ohio Rev. Code. Ann.
§ 2907.01(A) (effective Sept. 3, 1996); State v. Clark, 666 N.E.2d 308, 309 (Ohio Ct. App.
1995); State v. Bailey, 604 N.E.2d 1366, 1367 (Ohio Ct. App. 1992); State v. Hiltabidel,
No. 11971, 1985 WL 10801, at *2 (Ohio Ct. App. May 1, 1985); (20) Rhode Island, R.I.
Gen. Laws § 11-37-1(8) (1996); State v. Higham, 865 A.2d 1040, 1049 (R.I. 2004);
(21) South Carolina, S.C. Code Ann. § 16-3-651(h) (Law. Co-op. 1996); State v. Morgan,
574 S.E.2d 203, 209 (S.C. Ct. App. 2002); (22) South Dakota, S.D. Codified Laws
§ 22-22-2; (23) Tennessee, Tenn. Code Ann. § 39-13-501(7); State v. Marcum, 109 S.W.3d
300, 303 (Tenn. 2003); State v. Evans, No. 02C01-9306-CC-00124, 1994 WL 59452, at *3
(Tenn. Crim. App. Mar. 1, 1994); (24) Texas, Tex. Penal Code Ann. § 22.011(a)(1)(C)
(West 1996); (25) Vermont, Vt. Stat. Ann. tit. 13, § 3251(1) (1996); (26) Washington,
Wash. Code Ann. § 9A.44.010(1)(c); (27) West Virginia, W. Va. Code § 61-8B-1(7)
(1996); (28) Wisconsin, Wis. Stat. §§ 940.225(5)(c) (1996); State v. Hill, 888 N.W.2d 23
(Wis. Ct. App. 2016) (unpublished); In re G.M., 321 N.W.2d 367 (Wis. Ct. App. 1982)
(unpublished); (29) Wyoming, Wyo. Stat. Ann. § 6-2-301(a)(vii)(B) (Michie 1996).
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B. Consent
Regarding the issue of consent, the parties do not dispute that a rape
occurs when the relevant sexual act is “committed when the [victim’s]
resistance is overcome by force or fear, or under other prohibitive
conditions.” Black’s Law Dictionary 1260 (6th ed. 1990) (emphasis added);
accord Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000). Lack of
consent may be satisfied when the victim does not assent to the sexual act.
There may also be a lack of consent based on “other prohibitive conditions,”
even where the victim “agrees” to the sexual act. These “other prohibitive
conditions” may include the age of the victim, the victim’s physical or mental
condition, or other factors that negate consent. See Black’s Law Dictionary,
supra, at 1260.
The issues we must now decide are how to define lack of consent
generally and when a victim’s mental condition amounts to a “prohibitive
condition” that makes the underlying act of sexual penetration unlawful. The
prevailing view in 1996 was that a victim’s mental condition is a prohibitive
condition in two circumstances. The first is where the victim’s mental
capacity is substantially impaired as the result of an intoxicant administered
without his or her consent, typically by the defendant. See Model Penal Code
§ 213.1(1)(b) (1980); Appendix B. The second circumstance is where the
victim is incapable of giving consent as a result of a mental disease or defect,
and the defendant knew or had reason to know of the victim’s condition. See
Model Penal Code § 213.1(2)(b); Appendix C.
The Ohio statute under which the respondent was convicted is structured
to include these two circumstances. Ohio law defines rape as the commission
of the relevant sexual act where either (1) the victim’s mental capacity is
substantially impaired as the result of an intoxicant administered without his
or her consent by the defendant or (2) the victim’s mental capacity is
substantially impaired and the defendant knew or had reason to know of the
impairment. Ohio Rev. Code Ann. §§ 2907.02(A)(1)(a), (c) (West 2011).10
There is no dispute that the respondent’s conviction was based on a violation
involving the latter circumstance.
The respondent argues that the generic concept of rape limits the
application of a “substantial impairment” standard to situations in which an
intoxicant has been administered to the victim without consent. He contends
that in cases that do not involve the administration of an intoxicant but are
instead premised on the victim’s mental ability to consent, a higher standard
of being “incapable” of consent applies. According to the respondent, a
victim’s mental capacity may be substantially impaired, yet the condition
10 The commission of a rape in the first circumstance is punished more severely under
section 2907.02(B) of the Ohio Revised Code Annotated.
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may not be so severe as to render the victim “incapable” of consenting. This
assertion is premised on the fact that in 1996, both an overwhelming majority
of jurisdictions and the Model Penal Code used the term “incapable” when
defining this prohibitive condition, including such phrases as “incapable of
providing consent,” “incapable of appraising,” or “incapable of
appreciating.”
It is not clear what meaning the respondent ascribes to the concept of
being “incapable” of consenting. See Model Penal Code § 213.1 cmt 5(c) at
321 (1980) (“Some statutes merely specify that the impairment must be such
as to render the victim ‘Incapable of giving consent,’ a formulation that
avoids rather than answers the essential question.” (footnote omitted)). The
respondent appears to attribute to this term a meaning that requires complete
incapacitation, or an inability to vocalize consent. However, such an
interpretation is flatly at odds with the consensus in 1996. See id. cmt 1 at
276 (rejecting as too narrow a prohibitive condition that requires the victim
to suffer “from extreme retardation or some catastrophic psychological
disability [that renders him or her] incapable of expressing a judgment in the
sense of saying ‘yes’”).
We do not interpret the term “incapable” as indicating an absolute
inability to consent, because such a construction would be inconsistent with
the context in which the term is used. As previously noted, in 1996
numerous States required that the victim’s mental condition rendered
him or her incapable of giving effective or meaningful consent.11 See id.
(acknowledging that “[r]ape [has been] extended to situations where the
woman was incapable of meaningful consent”). That is, the victim’s mental
condition had to prevent him or her from making a reasonable judgment
about the nature and consequences of the underlying sexual act. See id.
§ 2.11(3)(b) (providing that consent is ineffective when “given by a person
11 See Cal. Penal Code §§ 261(a)(1) (requiring that the victim be “incapable . . . of giving
legal consent”); Idaho Code § 18-6101(2) (requiring that the victim be “incapable, through
any unsoundness of mind, whether temporary or permanent, of giving legal consent”); Ind.
Code § 35-42-4-1 (requiring that the victim be “so mentally disabled or deficient that
consent to sexual intercourse cannot be given”); Iowa Code Ann. § 709.1(2) (applying to
situations in which the victim is “suffering from a mental defect or incapacity which
precludes giving consent”); Minn. Stat. §§ 609.341(6), .342(1)(e)(ii), .344(1)(d) (providing
that the victim’s mental condition must be such that it causes him or her to “lack[] the
judgment to give a reasoned consent to sexual contact or sexual penetration”); Okla. Stat.
tit. 21, § 1111(A)(2) (requiring that the victim be “incapable through mental illness or any
other unsoundness of mind, whether temporary or permanent, of giving legal consent”);
S.D. Codified Laws § 22-22-1(3); see also People v. Burpo, 647 N.E.2d 996, 1002 (Ill.
1995); Stadler v. State, 919 P.2d 439, 441 (Okla. Crim App. 1996); State v. Fox, 31 N.W.2d
451, 454-55 (S.D. 1948).
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who by reason of youth, mental disease or defect or intoxication is . . . unable
to make a reasonable judgment as to the nature or harmfulness of the
conduct”).12
Such an approach is also consistent with the numerous States that, in
1996, defined the victim as being “incapable of appraising” or “incapable of
appreciating” the nature of his or her conduct.13 As New York’s highest
court has explained, “An ability to ‘appraise’ is, of course, a qualitative
matter, all the more so when the appraisal is one to be made of the ‘nature’
of ‘conduct’, with the variety of factors that the one ‘appraising’ may have
to take into account for such purposes.” People v. Easley, 364 N.E.2d 1328,
1332 (N.Y. Ct. App. 1977). In other words, the term “incapable” lacks an
unconditional quality when used in conjunction with relative concepts like
“appraising” or “appreciating.” See People v. Ardila, 647 N.E.2d 1355,
1355–56 (N.Y. Ct. App. 1995). The pivotal question is whether the victim
is “substantially able to understand what she was doing.” Easley, 364 N.E.2d
at 1332 (emphasis added).14
12 See 720 Ill. Comp. Stat. 5/12-13(a)(2); Minn. Stat. Ann. § 609.341(6) (1996) (providing
that mental impairment deprives the victim of the ability “to give a reasoned consent”);
Mo. Rev. Stat. § 556.061(5) (providing that a victim lacks capacity to consent where he or
she is “unable to make a reasonable judgment”); State v. Ortega-Martinez, 881 P.2d 231,
236−37 (Wash. 1994) (stating that a victim lacks capacity to consent where he or she is not
able to meaningfully understand the nature or consequences of sexual intercourse).
13 Ala. Code §§ 13A-6-60(5), -62(a)(2); Alaska Stat. Ann. § 11.41.470(4); Ariz. Rev. Stat.
§ 13-1401(A)(5)(b); Ark. Code Ann. § 5-14-101(3)(A); Colo. Rev. Stat. § 18-3-403(1)(c)
(1996); Conn. Gen. Stat. § 53a-65(4); Del. Code Ann. tit. 11, § 761(g)(3); Fla. Stat. Ann.
§ 794.011(1)(b); Haw. Rev. Stat. §§ 702-235(2), 707-700 (1996) (defining “mentally
defective”); Kan. Stat. Ann. § 21-3502(a)(1)(C); La. Rev. Stat. Ann. § 14:43(A)(2); Mich.
Comp. Laws §§ 750.520a(f), .520d(1)(c); Miss. Code Ann. § 97-3-97(b); Mont. Code Ann.
§§ 45-2-101(39), -5-501(1)(b)(i); Neb. Rev. Stat. § 28-319(1)(b); Nev. Rev. Stat.
§ 200.366(1); N.J. Stat. Ann. §§ 2C:14-1(h), -2(c)(2); N.M. Stat. Ann. §§ 30-9-10(A)(4),
-11(E); N.Y. Penal Law §§ 130.00(5), .05(2)(b), .05(3)(b), .25(1); N.D. Cent. Code
§ 12.1-20-03(1)(e); Or. Rev. Stat. §§ 163.305(3), .375(1)(d); 18 Pa. Cons. Stat. § 3121(5);
R.I. Gen. Laws §§ 11-37-1(4), -2(1); S.C. Code Ann. §§ 16-3-651(e), -654(1)(b); Tenn.
Code Ann. §§ 39-13-501(3), 39-13-503(a)(3); Tex. Penal Code Ann. §§ 22.011(a)(1),
(b)(4); Utah Code Ann. §§ 76-5-402(1), -406(6); Vt. Stat. Ann. tit. 13, §§ 3252(a)(1)(A),
3254(2)(A), 3254(2)(D); Va. Code Ann. §§ 18.2-61(A)(ii), -67.10(3); Wash. Rev.
Code §§ 9A.44.010(4), .050(1)(b); W. Va. Code §§ 61-8B-1(3), -5(a)(1); Wis. Stat.
§ 940.225(2)(c); Wyo. Stat. Ann. § 6-2-302(a)(iv); see also N.H. Rev. Stat. Ann.
§ 632-A:2(I)(h); State v. Degrenier, 424 A.2d 412, 413–14 (N.H. 1980) (interpreting a
prior version of the statute).
14 See also, e.g., Brooks v. State, 555 So. 2d 1134, 1136 (Ala. Crim. App. 1989); People
v. Vukodinovich, 189 Cal. Rptr. 3d 126, 133−34 (Ct. App. 2015); State v. Dudley, 64 So.
3d 746, 752 (Fla. Dist. Ct. App. 2011); Ely v. State, 384 S.E.2d 268, 271−72 (Ga. Ct. App.
1989); People v. Breck, 584 N.W.2d 602, 604 (Mich. Ct. App. 1998); State v. Frost, 686
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There is no meaningful distinction between these approaches and those
adopted by States, such as Ohio, that consider victims to have a prohibitive
condition if their ability to appraise the nature of the sexual act is
“substantially impaired.” 15 Contrary to the respondent’s assertions on
appeal, this provision of Ohio law does not apply to any reduction or
diminution in the victim’s ability to appraise the nature of the sexual
activity—the impairment must be substantial. See, e.g., State v. Noernberg,
No. 97126, 2012 WL 1649806 (Ohio Ct. App. May 10, 2012); State
v. Hatten, 927 N.E.2d 632, 638–41 (Ohio Ct. App. 2010). Requiring that the
victim’s impairment be substantial is essentially synonymous with requiring
that the impairment be of such a degree as to deprive the victim of the ability
to provide meaningful consent. As discussed, a victim who is not capable of
providing meaningful consent is “incapable of consent,” as that phrase was
commonly understood in 1996.
IV. CONCLUSION
We conclude that the term “rape” in section 101(a)(43)(A) of the Act
encompasses (1) an act of vaginal, anal, or oral intercourse or digital or
mechanical penetration, no matter how slight, that (2) is committed without
consent.16 We will therefore affirm the Immigration Judge’s determination
that the respondent is removable on the basis of his conviction for aggravated
felony rape under section 101(a)(43)(A) of the Act. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
A.2d 1172, 1175 (N.H. 1996); State v. Mosbrucker, 758 N.W.2d 663, 668 (N.D. 2008);
Stadler v. State, 919 P.2d 439, 441 (Okla. 1996); Commonwealth v. Rhodes, 510 A.2d 1217,
1225 (Pa. 1986).
15 Ohio Rev. Code Ann. § 2907.02(A)(1)(c); see also Me. Rev. Stat. Ann. tit. 17-A,
§ 253(2)(C); Md. Ann. Code art. 27, §§ 461(b), 463(2); N.C. Gen. Stat.
§§ 14-27.1(1)(ii), .3(a)(2).
16 As previously noted, this formulation is not exhaustive of all potential issues that could
arise in trying to define the various types of sexual acts encompassed by the consensus of
State and Federal law in 1996 regarding the meaning of the term “rape.” See supra note 2;
see also supra notes 8–9. Nor does it comprehensively set forth all forms of the concept
of “lack of consent” that can possibly underlie a rape offense.
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APPENDIX A
This table lists the relevant offenses criminalizing digital and mechanical
penetration when “rape” was added to section 101(a)(43)(A) of the Act in
1996. Kentucky, Maine, North Dakota, and Utah are the four States that
proscribed mechanical, but not digital, penetration.
Alaska
Alaska Stat. § 11.41.410 (Michie 1996) (defining certain
acts of sexual penetration as “sexual assault in the first
degree”); § 11.41.420 (“sexual assault in the second
degree”); § 11.81.900(b)(55)(A) (defining “sexual
penetration”)
Arizona
Ariz. Rev. Stat. § 13-1401(3) (1996) (defining “sexual
intercourse”); § 13-1406(A) (defining certain acts of
sexual intercourse or oral sexual contact as “sexual
assault”)
Arkansas
Ark. Code Ann. § 5-14-101(1)(B) (Michie 1996)
(defining “deviate sexual activity”); § 5-14-103 (defining
certain acts of sexual intercourse or deviate sexual
activity as “rape”)
Colorado
Colo. Rev. Stat. § 18-3-402 (1996) (defining certain acts
of sexual intrusion or sexual penetration as “sexual
assault in the first degree”); § 18-3-403 (“sexual assault
in the second degree”); § 18-3-401(5) (defining “sexual
intrusion”)
Connecticut
Conn. Gen. Stat. § 53a-65(2) (1996) (defining “sexual
intercourse”); § 53a-70 (defining certain acts of sexual
intercourse as “sexual assault in the first degree”);
§ 53a-71 (“sexual assault in the second degree”); State
v. Grant, 634 A.2d 1181, 1186 (Conn. App. Ct. 1993)
(concluding that digital penetration is penetration by an
“object”)
District
of Columbia
D.C. Code Ann. § 22-4101(8)(C) (1996) (defining
“sexual act”); § 22-4102 (defining “first degree sexual
abuse” as engaging in a sexual act under certain
circumstances); § 22-4103 (“second degree sexual
abuse”)
Florida
Fla. Stat. Ann. § 794.011(1)(h) (West 1996) (defining the
sexual acts that constitute “sexual battery”); Kirby
v. State, 625 So. 2d 51, 55 (Fla. Dist. Ct. App. 1993)
(providing that digital penetration is included in the
definition of “sexual battery”)
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Hawaii
Haw. Rev. Stat. § 707-700 (1996) (defining “sexual
penetration”); § 707-730 (defining certain acts of sexual
penetration as “sexual assault in the first degree”),
707-731 (“sexual assault in the second degree”);
§ 707-732(1)(a) (“sexual assault in the third degree”)
Illinois
720 Ill. Comp. Stat. 5/12-12(f) (West 1996) (defining
“sexual penetration”); 5/12-13 (defining certain acts of
sexual penetration that constitute “criminal sexual
assault”); 5/12-14 (“aggravated criminal sexual assault”)
Iowa
Iowa Code § 702.17 (defining “sex act”) (1996); § 709.1
(defining “sexual abuse” as the commission of a sex act
under certain circumstances); § 709.2 (“sexual abuse in
the first degree”); § 709.3 (“sexual abuse in the second
degree”); § 709.4 (“sexual abuse in the third degree”)
Kansas
Kan. Stat. Ann. § 21-3501(1) (1996) (defining “sexual
intercourse”); § 21-3502(a) (defining certain acts of
sexual intercourse as “rape”)
Kentucky
Ky. Rev. Stat. Ann. § 510.010(8) (Michie 1996) (defining
“sexual intercourse” to include penetration by a foreign
object); § 510.040(1) (defining “rape in the first degree”);
§ 510.050 (“rape in the second degree”); § 510.060
(“rape in the third degree”); § 510.070 (“sodomy in
the first degree”); Cotton v. Commonwealth, No.
2008-SC-000516-MR, 2010 WL 2025125, at *3 (Ky.
May 20, 2010) (providing that rape entails mechanical,
but not digital, penetration)
Maine
Me. Rev. Stat. Ann. tit. 17-A, § 251(1)(C) (West 1996)
(defining “sexual act”); § 253 (defining “gross sexual
assault” as the commission of a sexual act under certain
circumstances); State v. Walker, 512 A.2d 354, 356 (Me.
1986) (suggesting that digital penetration is not included)
Massachusetts
Mass. Gen. Laws ch. 265, § 22 (1996) (defining certain
acts of sexual intercourse or unnatural sexual intercourse
as “rape”); § 23 (“rape of a child”); Commonwealth
v. Gallant, 369 N.E.2d 707, 712 (Mass. 1977) (providing
that “unnatural sexual intercourse” includes, among other
things, digital and mechanical penetration)
Michigan
Mich. Comp. Laws § 750.520a(l) (1996) (defining
“sexual penetration”); § 750.520b (defining certain acts
of sexual penetration as “criminal sexual conduct in the
first degree”); § 750.520d (“criminal sexual conduct in
the third degree”)
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Minnesota
Minn. Stat. § 609.341(12)(2)(i) (1996) (defining “sexual
penetration”); § 609.342 (defining acts of sexual
penetration as “criminal sexual conduct in the first
degree”); § 609.343(1) (“criminal sexual conduct in the
second degree”)
Montana
Mont. Code Ann. § 45-2-101(66) (1996) (defining
“sexual intercourse”); § 45-5-503 (defining certain acts
of sexual intercourse as “sexual intercourse without
consent”)
Nebraska
Neb. Rev. Stat. § 28-318(6) (1996) (defining “sexual
penetration”); § 28-319 (defining certain acts of sexual
penetration as “sexual assault”)
Nevada
Nev. Rev. Stat. § 200.364(2) (1996) (defining “sexual
penetration”); § 200.366 (defining certain acts of sexual
penetration as “sexual assault”)
New
Hampshire
N.H. Rev. Stat. Ann. § 632-A:1(V)(e) (1996) (defining
“sexual penetration”); § 632-A:2 (defining certain acts of
sexual penetration as “aggravated felonious sexual
assault”)
New Jersey
N.J. Stat. Ann. § 2C:14-1(c) (West 1996) (defining
“sexual penetration”); § 2C:14-2 (defining certain acts of
sexual penetration as “sexual assault”)
New Mexico
N.M. Stat. Ann. § 30-9-11 (Michie 1996) (defining
“criminal sexual penetration”); State v. Lente, 119 P.3d
737, 742 (N.M. Ct. App. 2005) (affirming a conviction
for criminal sexual penetration based on digital
penetration)
North Dakota
N.D. Cent. Code §§ 12.1-20-02(2), (3) (1996) (defining
“sexual act” and “object”); § 12.1-20-03 (defining “gross
sexual imposition” as the commission of a sexual act
under certain circumstances)
Ohio
Ohio amended its rape laws to include digital and
mechanical penetration on September 3, 1996, just weeks
before Congress included “rape” in section 101(a)(43)(A)
of the Act. See H.B. 445, 121st Gen. Assemb., 1996 Ohio
Laws File 155 (codified at Ohio Rev. Code Ann.
§§ 2907.01(A) (Anderson 1996)) (defining “sexual
conduct”), 2907.02 (defining certain acts of sexual
conduct as “rape”) (effective Sept. 3, 1996).
Oklahoma
Okla. Stat. tit. 21, § 1111 (1996) (defining certain acts of
vaginal or anal penetration as “rape”); § 1111.1 (defining
“rape by instrumentation”)
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Rhode Island
R.I. Gen. Laws § 11-37-1(8) (1996) (defining “sexual
penetration”); § 11-37-2 (defining certain acts of sexual
penetration as “first degree sexual assault”)
South Carolina
S.C. Code Ann. § 16-3-651(h) (Law. Co-op. 1996)
(defining “sexual battery”); § 16-3-652 (defining certain
acts of sexual battery as “criminal sexual conduct in the
first degree”); § 16-3-653 (“criminal sexual conduct in
the second degree”); § 16-3-654 (“criminal sexual
conduct in the third degree”)
South Dakota
S.D. Codified Laws § 22-22-1 (Michie 1996) (defining
certain acts of sexual penetration as “rape”); § 22-22-2
(defining “sexual penetration”)
Tennessee
Tenn. Code Ann. § 39-13-501(7) (1996) (defining
“sexual penetration”); § 39-13-502 (defining certain acts
of sexual penetration as “aggravated rape”); § 39-13-503
(“rape”)
Texas
Tex. Penal Code Ann. § 22.011(a)(1)(A) (West 1996)
(defining certain acts of penetration as “sexual assault”);
§ 22.021(a)(1)(A) (“aggravated sexual assault”)
Utah Utah Code Ann. § 76-5-402.2 (1996) (defining “object
rape”); § 76-5-402.3 (“object rape of a child”)
Vermont
Vt. Stat. Ann. tit. 13, § 3251(1) (1996) (defining “sexual
act”); § 3252 (defining certain types of sexual acts as
“sexual assault”); § 3253 (“aggravated sexual assault”)
Washington
Wash. Rev. Code § 9A.44.010(1)(b) (1996) (defining
“sexual intercourse”); § 9A.44.040 (defining certain acts
of sexual intercourse as “rape in the first degree”);
§ 9A.44.050 (“rape in the second degree”); § 9A.44.060
(“rape in the third degree”); State v. Cain, 624 P.2d 732,
734 (Wash. 1981) (providing that digital penetration is
included in the definition of “sexual intercourse”)
West Virginia
W. Va. Code § 61-8B-1(8) (1996) (defining “sexual
intrusion”); § 61-8B-3(defining certain acts of sexual
intercourse or sexual intrusion as “sexual assault in the
first degree”); § 61-8B-4 (“sexual assault in the second
degree”); § 61-8B-5 (“sexual assault in the third
degree”); State v. Emerson, No. 13-0571, 2014 WL
1672953, at *3 (W. Va. Apr. 25, 2014) (concluding that
digital penetration is included in the definition of “sexual
intrusion”)
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Wisconsin
Wis. Stat. §§ 940.225(1)-(3) (1996) (defining certain acts
of sexual intercourse as “sexual assault” in various
degrees); § 940.225(5)(c) (defining “sexual intercourse”)
Wyoming
Wyo. Stat. Ann. § 6-2-301(a)(vii)(A) (Michie 1996)
(defining “sexual intrusion”); § 6-2-302 (defining certain
acts of sexual intrusion as “sexual assault in the first
degree”); § 6-2-303 (“sexual assault in the second
degree”); § 6-2-304 (“sexual assault in the third degree”)
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APPENDIX B
This table lists the relevant offenses that define a lack of consent as
including an impaired mental state as the result of an intoxicant when “rape”
was added to section 101(a)(43)(A) of the Act in 1996. Comparable Federal
statutes punished similar conduct. See 18 U.S.C. § 2241(b)(2).
Alabama Ala. Code §§ 13A-6-60(6), -61(a)(2) (1996)
Alaska Alaska Stat. §§ 11.41.410(a)(1), .470(8)(b)
Arkansas Ark. Stat. Ann. §§ 5-14-101(4), -1039(a)(4)
California Cal. Penal Code § 261(a)(3) (West 1996)
Colorado Colo. Rev. Stat. § 18-3-402(1)(d)
Connecticut Conn. Gen. Stat. §§ 53a-65(5), -71(a)(2)
Delaware Del. Code Ann. tit. 11, §§ 773(a)(1), 774(a)(2), 775(a)(2),
761(g)(5) (1996)
District of
Columbia
D.C. Code Ann. § 22-4102(4)
Hawaii Haw. Rev. Stat. §§ 707-700, -731(1)(b) (defining
“mentally incapacitated”)
Idaho Idaho Code § 18-6101(4) (1996)
Kentucky Ky. Rev. Stat. Ann. §§ 510.010(5), .060(1)(a)
Louisiana La. Rev. Stat. Ann. §§ 14:41(A), 14:43(A)(1) (West 1996)
Maine Me. Rev. Stat. Ann. tit. 17-A, § 253(2)(A)
Maryland Md. Ann. Code art. 27, §§ 461(c), 463(2) (1996)
Michigan Mich. Comp. Laws §§ 750.520a(g), .520b(1)(h),
.520d(1)(c)
Minnesota Minn. Stat. §§ 609.341(7), .342(1)(e)(ii), .344(1)(d)
Mississippi Miss. Code Ann. § 97-3-65(2) (1996); see also
§§ 97-3-95(1)(b), -97(c)
Montana -Mont. Code Ann. §§ 45-2-101(40), -5-501(1)(b)(i),
5-503(1)
New
Hampshire
N.H. Rev. Stat. Ann. § 632-A:2(I)(f)
New Jersey N.J. Stat. Ann. §§ 2C:14-1(i), -2(c)(2)
New York (N.Y. Penal Law §§ 130.00(6), .05(2)(b), (3)(c), .25(1)
McKinney 1996)
North
Carolina
N.C. Gen. Stat. §§ 14-27.1(2), .3(a)(2) (1996)
North Dakota N.D. Cent. Code § 12.1-20-03(1)(b)
Ohio Ohio Rev. Code. Ann. § 2907.02(A)(1)(a)
Oklahoma Okla. Stat. tit. 21, § 1111(A)(4)
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Oregon Or. Rev. Stat. §§ 163.305(4), .375(1)(d) (1996)
Pennsylvania 18 Pa. Cons. Stat. § 3121(4) (1996)
Rhode Island R.I. Gen. Laws §§ 11-37-1(5), -2(1)
South
Carolina
S.C. Code Ann. §§ 16-3-651(f), -654(1)(b)
South Dakota S.D. Codified Laws § 22-22-1(4)
Tennessee Tenn. Code Ann. §§ 39-13-501(4), -503(a)(3)
Texas Tex. Penal Code Ann. §§ 22.011(a), (b)(6)
Utah Utah Code Ann. §§ 76-5-402(1), -406(8)
Vermont Vt. Stat. Ann. tit. 13, § 3252(a)(2)
West Virginia W. Va. Code §§ 61-8B-1(4), -5(a)(1)
Wyoming Wyo. Stat. Ann. § 6-2-303(a)(iii)
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APPENDIX C
This table lists the relevant offenses defining lack of consent to include
“incapacity to consent” when “rape” was added to section 101(a)(43)(A) of
the Act in 1996. Comparable Federal statutes punished similar conduct. See
18 U.S.C. § 2242(2)(A).
Alabama Ala. Code §§ 13A-6-60(5), -62(a)(2)
Alaska Alaska Stat. Ann. §§ 11.41.420(a)(3)(A), .470(2), (4)
Arizona Ariz. Rev. Stat. §§ 13-1401(5)(b), -1406(A)
Arkansas Ark. Code. Ann. §§ 5-14-101(3)(A), -103(4)
California Cal. Penal Code § 261(a)(1)
Colorado Colo. Rev. Stat. § 18-3-403(1)(c)
Connecticut Conn. Gen. Stat. §§ 53a-65(4), -71(a)(2)
Delaware Del. Code Ann. tit. 11, §§ 773(a)(1), 774(a)(2),
775(a)(2), 761(g)(3)
District of
Columbia
D.C. Code Ann. § 22-4103(2)(A)
Florida Fla. Stat. Ann. § 794.011(1)(b), (4)(e)
Georgia Ga. Code Ann. § 16-6-1(a) (1996); Ely v. State, 384
S.E.2d 268, 271 (Ga. Ct. App. 1989)
Hawaii Haw. Rev. Stat. §§ 707-700, -731(1)(b) (defining
“mentally defective”)
Idaho Idaho Code § 18-6101(2)
Illinois 720 Ill. Comp. Stat. 5/12-13(a)(2)
Indiana Ind. Code § 35-42-4-1(3) (1996)
Iowa Iowa Code §§ 709.1(2), 709.4(2)(a)
Kansas Kan. Stat. Ann. § 21-3502(a)(1)(C)
Kentucky Ky. Rev. Stat. Ann. §§ 510.010(4), .060(1)(a)
Louisiana La. Rev. Stat. Ann. §§ 14:41(A), :43(A)(1), (2)
Maine Me. Rev. Stat. Ann. tit. 17-A, § 253(2)(C)
Maryland Md. Ann. Code art. 27, §§ 461(b), 463(2)
Michigan Mich. Comp. Laws §§ 750.520a(f), .520b(1)(h),
.520d(1)(c)
Minnesota Minn. Stat. §§ 609.341(6), .342(1)(e)(ii), .344(1)(d)
Montana -Mont. Code Ann. §§ 45-2-101(39), -5-501(1)(b)(i),
5-503(1)
Nebraska Neb. Rev. Stat. § 28-319(1)(b)
Nevada Nev. Rev. Stat. § 200.366(1)
New
Hampshire
N.H. Rev. Stat. Ann. § 632-A:2(I)(h); State v. Degrenier,
424 A.2d 412, 413–14 (N.H. 1980)
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New Jersey N.J. Stat. Ann. §§ 2C:14-1(h), -2(c)(2)
New Mexico N.M. Stat. Ann. §§ 30-9-10(A)(4), -11(E)
New York N.Y. Penal Law §§ 130.00(5), .05(2)(b), .05(3)(b), .25(1)
North Carolina N.C. Gen. Stat. §§ 14-27.1(1)(ii), .3(a)(2)
North Dakota N.D. Cent. Code § 12.1-20-03(1)(e)
Ohio Ohio Rev. Code. Ann. § 2907.02(A)(1)(c)
Oklahoma Okla. Stat. tit. 21, § 1111(A)(2)
Oregon Or. Rev. Stat. §§ 163.305(3), .375(1)(d)
Pennsylvania 18 Pa. Cons. Stat. § 3121(5)
Rhode Island R.I. Gen. Laws §§ 11-37-1(4), -2(1)
South Carolina S.C. Code Ann. §§ 16-3-651(e), -654(1)(b)
South Dakota S.D. Codified Laws § 22-22-1(3)
Tennessee Tenn. Code Ann. §§ 39-13-501(3), -503(a)(3)
Texas Tex. Penal Code Ann. §§ 22.011(a)(1), (b)(4)
Utah Utah Code Ann. §§ 76-5-402(1), -406(6)
Vermont Vt. Stat. Ann. tit. 13, §§ 3252(a)(1)(A), 3254(2)(A),
3254(2)(D)
Virginia Va. Code Ann. §§ 18.2-61(A)(ii), -67.10(3) (Michie
1996)
Washington Wash. Rev. Code §§ 9A.44.010(4), .050(1)(b)
West Virginia W. Va. Code §§ 61-8B-1(3), -5(a)(1)
Wisconsin Wis. Stat. § 940.225(2)(c)
Wyoming Wyo. Stat. Ann. § 6-2-302(a)(iv)
Others
In addition to having a crime labeled “rape,” other States
punished the act of sexual penetration without consent.
See Miss. Code Ann. §§ 97-3-95(1)(b), -97(b); Mo. Rev.
Stat. §§ 566.040(1), .061(5)(a), (b) (1996)