DINGENA

11 I. & N. Dec. 723

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1620
• Status: Published

Opinion

Interim Decision #1620

Maze ox DINGENA In Deportation Proceedings A-11168098 Deckled by Board July 21, 190 Conviction of the offense of sexual intercourse with a female child (under Id years of age) in violation of section q4.4.10(2) of Wisconsin Statutes is con- viction of a crime involving moral turpitude. CZERGE' Order: Act of 1952LSection 24.1(a) (4) t8 II S.C. 1251(a) (4)3—Convicted after entry of two crimes involving moral turpitude. • to wit: sexual intercourse with a child and burglary.

The case comes forward on appeal by the trial attorney from the order of the special inquiry officer dated February 2, 1966 that the proceedings be terminated. . The record relates to a native and citizen of the Netherlands, 20 years old, male, single, who last entered the United States at the part of New York in August 1964 as a, returning resident after an absence from April 1964. He had been originally admitted to the United States for permanent residence on February 10, 1960. He also had been absent from the United States from November to De- cember 1963. On the occasion of both absences he departed and re- turned with his parents. On April 5, 1965 the respondent was convicted in the Circuit Court of Milwaukee County at Milwaukee, Wisconsin of the offense of sex- ual intercourse with a child upon his plea of guilty of violation of section 944.10(2), Wisconsin statutes, was given a suspended sen- tence, and was placed on probation for two•years. On June 30,-1965 he was convicted upon his plea of guilty of burglary and was sen- tenced to an. indeterminate term of not more than three years. Pro- bation was revoked on the conviction of sexual intercourse with a child and he was sentenced to a concurrent term with the burglary conviction. The respondent testified that he was tried in the Circuit Court of Milwaukee, Wisconsin on September 10, 1965 for the offense . Interim Debision 3t1620 •

of burglary and was convicted and sentenced to serve not more than- three years in the WiscOnsin State Reformatory to run concurrently with the two sentences he received in the Circuit Court of Milwaukee, Wisconsin on June 30, 1965 (Ex. 4). However, the record of this last conviction has not been made a part of the record_ It has been established that the offense of sexual intercourse with a child and the offense of burglary for which he was convicted on June 30, 1965 did not arise out of the same scheme. The crime of burglary with intent to steal involves moral turpitude and does not require any discussion. The conviction of the respondent of the offense of intercourse with a female child has received extensive discussion by the special in- quiry officer. He concludes that the crime for which respondent was convicted was not rape; that "mans rea" is not an element of the offense; that no criminal intent is necessary to convict under the statute. The special inquiry officer has cited law review articles urg- ing a more liberal and realistic law regarding statutory rape of a consenting female beyond the age of puberty. He concludes that even if the• offense in the State of Michigan were statutory rape or even analogous to statutory rape, under the modern trend of court decisions because of the absence of the "mans rea" the offense of stat- utory rape would not involve moral turpitude. He likens the offense to which respondent was convicted to fornication under Wisconsin Statutes, Section 914.15, and observes that the crime of fornication does not involve' moral turpitude. The special inquiry officer con- cludes that the offense of sexual intercourse with a child does not involve moral turpitude. We shall review this finding because under the theory advanced by the special inquiry officer, it would appear that moral turpitude would not be involved in a violation of section 944.10(3), Wisconsin Statutes, with a female under 12 years, infra. The offense for which respondent was convicted is set forth in -

chapter 944 of the Wisconsin Statutes which is entitled "Crimes against Sexual Morality." Various headings are set forth under this heading : Sexual Crimes Without Consent which includes sec- tion 944.10 (rape) and 944.02 (sexual intercourse without consent) ; Sexual Crimes which involve children:. and Sexual Crimes between Adults with Consent which includes fornication (section 944.15), adultery (section 941.16), and sexual perversion (section 944.17). Section 914.10, which is listed under Sexual Crimes which Involve Children, provides as follows: . 04410 Sexual intercourse with a child. Ally male who has sexual inter- course with a female he knows is not his wife may be penalized as follows: (1) If the female is tinder the age of 18, fined not more than $1,000.00 or im• priaoned not more than five years or both; or

724 _Interim Decision 40620

(2) If the female is under me age of 10, and tile male is 19 yearn ,of aye or over, imprisoned not • more than 15 years; or (3) If the female is under the age of 12, and the male is 18 years of age or over, imprisoned not more than 30 years. The authenticated copy of the record .of complaint, conviction and sentence (Ex. 5) bets forth in the complaint thereof to which the respondent pleaded guilty, that: Defendant Matt Quirinus Dingena, being a male person 18 years or over, did feloniously have sexual intercourse with Coleen. Davy, a person of the age of 15 years, he the said Matt Quirinus Dingena, then and there well (mowing that the said Coleen Davy was not his wifA contrary to section 944.10(2) of the statutes. • The predecessor statute involving this offense, section 340.47,1925 Wisconsin Statutes, entitled "Carnal knowledge and abuse" provided, inter (ilia, as follows: Any person over 18 years of age who shall unlawfully and carnally know and abuse any female under the age of 18 years shall be punished by imprisonment in the State prison not more than thirty years nor Jess than • hue year, or by a One nut exceeding 9200; *

In alleging and proving the offense under section 340.47, supra, it was not necessary to allege and prove force and that the act was against the will of a female, as she was not capable in law of giving consent, the averment of force and-want of consent being immaterial and mere surplusag e.' The rule regardig the evidentiary effect of disclosure or failure to make disclosure of a rape does not apply where the element in re- spect of non-consent is supplied by the statute. 2 In criminal proceedings, in which the defendant was convicted of sexual intercourse of a child contrary to section 944.10(2), Wisconsin Statutes, consent or lack of it is not an element of the crime. 2 courts have long accepted the testimony . (if believed) Wiscon of the complainant as sufficient to sustain a conviction of rape or sex- ual intercourse with a child.' The age of consent as fixed by statutory provision in practically all of the United States varies; .generally, such statutes raise the common-law age at which a, female can Consent to sexual inter- course and, this statutory increase of the age of consent from the

1 State v. Eri.4;k8on, 45 Wis. 84. Loose v. State, 97 N.W. 526, 120 Avis. 115. *Gauthier v. State, 137 N.W. 2d 101, 28 Wis. 2d 412. 'Lanpbere v. State, 114 Wis. 193, 89 N.W. 128; Haley v. State, 207 Wis. 193, 240 N.W. 829; State v. Fischer. 228 Wis. 181, 279 N.W. 861; State v. Pries, 246 Win 521, 17 NM. 25 578; State v. Pickett, 259 Wis. 593, 49 N.W. 2d 712.

725 Interim Decision #1620 common-law age of ten years marks the only difference between statutory and common-law rape of a female child. Where a statute makes it either rape or carnal knowledge to have illicit sexual inter- course with a female under a specified age without any provision regarding her consent, such statutes are construed as fixing the age of consent, and the purpose of these statutes is to protect young fe- males from illicit acts of the opposite sex by rendering such females under the specified age incapable of consenting to sexual intercourse. Thus, sexual intercourse with a female under the age of consent at common-law or as fixed by statute constitutes raps or the statutory crime of carnal knowledge, whether or not the act be accomplished against her will, or with or without her consent. If she is under the age limit fixed. by statute, consent is immaterial, as is force and re- sistance. Hence, to constitute the offense %A intercourse with a fe- male below the age of consent, the only material elements are the carnal knowledge and the age of the female. -The female's age at the time the act charged was committed determines whether she is within the age of consent fixed by a statute then in force.' Under general rules, en indictment or information for rape or car- nal knowledge or abuse of a person under the age of consent must sufficiently allege the essential elements of the offense. Such an in- dictment may and must allege carnal knowledge by the use of those words or by their equivalent. Where the statute punishing the offense uses such an expression as "sexual intercourse" to describe the act, an information charging that accused did. ravish and carnally know that prosecntrir is sufficient, since "carnal knowledge" means sexual intercourse.° Although statutory rape is not a crime included under the present ' or predecessor of Wisconsin statutes, the offenses of carnal knowledge of a female under a certain age and sexual intercourse with a female under a certain age are similar, in that if she is under the age fixed by the•statute, consent is immaterial and the only elements necessary to be proved to establish the crime are the fact of carnal knowledge and the age of consent. The case of the United States v 'Tombs, 113 F. Supp. 203 (1953), appeal dismissed 346 U.S. 892, held that rape and carnal knowledge and abuse constitute distinct and separate offenses, and that Congress, by deleting the latter offense from the list of offenses enumerated in the "Major Crimes Act" (18 U.S.C.A.. 1163) indicated that Congress did not think carnal knowledge should be made an offense under the '75 0.3.9., we. 18, pp. 478, 479. • Idem, sections 10(a), 89(d). 726 Interim. Decision #1620

Major Crimes Act. In this case, while Making a distinction between rape and carnal abuse because carnal abuse was deleted as one of the enumerated offenses in the list of Major Crimes, in accordance with the usual ruling that criminal statutes must be , strictly construed, the court held it was not within its province to create an offense by construction of a Statute, and declined to include within the offense of rape the offense of carnal -knowledge. The Jacobs case there- fore simply stands for a familiar holding of strict construction in a criminal case. Sexual offenses with children similar to that for which the re- spondent was convicted in the instant ease hare previously been held to involve moral turpitude. In Matter of F , 2 I. & N. Dec. —

610 (1946), the alien was convicted in Illinois for contributing to the delinquency of a child on a criminal information that he took a 15 year old female child into a basement and had sexual intercourse with her. Moral turpitude was found because the acts were of the nature, commonly referred to as statutory rape. For the same rea- son, in Matter of R—, 3 L & N. Dec. 562 (1949), it was held that a conviction for violation of section 301(2) of tho Canadian Criminal Code 'dealing with carnal knowledge of a girl of previous chaste character under the age of 16 and above the age of 14, not being the wife of the accused, involved, moral turpitude. In Matter of P—, 5 L & N. Dec. 392 -(1953), the alien was convicted in Massachusetts for the offense of abuse of a female child, the indictment charging that he assaulted a female child under the age of 16 years with in- tent to unlawfully and carnally know and abuse her_ The alien's attorney contended that the Massachusetts offense did not involve moral turpitude because under the statute a man could be convicted even though he did not know the girl was under age, the crime re, quire& no force, knowledge, or intent, and the crime committed was merely fornication which could not be considered base, vile, 'or de- praved. The Board found the contentions of counsel with respect to this crime completely without merit, citing cases.' Matter of M—, 9 I. & N. Dec. 452, involved the immediate prede- cessor to the present section 944.10, Wisconsin Statutes, namely, section 310.47, Wisconsin Statutes. In that ease the Board likened the crimes to statutory rape and held that it involved moral turpi. tude, citing Pino v. Nioork, 215 F.2d 237, reversed on other grounds, 349 U.S. 901; and Bendel v. Nagle, 11 F.2d. 719.8

This conclusion, was endorsed sub tone, Pino r. Nicoll:I, 119 F. Supp. 122, affirmed 215 F.2d 237 (1st Cir., 1954), reversed on other grounds, 349 U.B. 901. The Board decision in Matter of If , 9 L & N. Dee. 452, was atermed sub —

asst. Marks v. Enteral/. 315 F.2d 673 (2nd Clr., 1963), acrd. 870 U.S. 810t

727 Interim Decision #1620

In Bendel v. Nagle, 17 F.2d (9th Cir. 1927), the alien .had been convicted in Maryland of, the crime of having carnal knowledge of a female child of the age of 15 years. The court stated that the crime of which the appellant was convicted is usually classified as rape, the e.atuto simply raising the oommon law age of consent, and such -

a crime manifestly involves moral turpitude. .To the same effect was the ease of Ng Sui,Tring v. United States, 46 F.24 755 (7th Cir. 1931) where the court found the. Illinois offenses of statutory rape and contributing to the delinquency of a minor female child to in- volve moral turpitude. The special inquiry officer has found the offense set forth in sec- tion 94410, Wisconsin: Statutes, identical to the offense of forniea- . dim under 914.15 Wisconsin. Statutes which defines fornication as sexual intercourse with a person not his spouse, fine not more than $200 or imprisonment not more than six months or both. However, he completely ignores the fact that the crime of fornication is set forth in section 944.15 Wisconsin Statutes which involves Sexual Crimes between Adults' with Consent, whereas section 944.10, sexual intercourse with a child, deals with Sexual Crimes 1Vhieh Involve Children.• The latter offense sets forth the different statutory ages of consent at which the female is incapable in law of consenting be- cause of the concern. of society with protecting such females under the specified ages from illicit acts of the opposite sex. The penalty increases as the age of the female decreases. It is concluded that whether the offense be designated as statutory rape, carnal knowledge of a female under the age'of consent, or sex- ual intercourse with S child under the age of consent, the essential and material elements in all these offenses are the carnal knowledge or intercourse and the age of the female. If sexual intercourse is is present, and it is established that the female is under the age of consent, the element of mens rea does not enter because of the very nature of the offense and the interest of iociety, in rendering, such feinales incapable of giving consent: The mistake as to the age:of s girl in a statutory - rape case is not an innocent' and, non-negligent Mistake of fact. The conviction is upheld oil the ground that what was done would not have been proper even if the facts had been as he reasonably supposed them to be. 'The theory of the-courts' in these cases has been that Mistak- ing the age of the girl in a statutory, tape case is not an innocent mistake of fact. The mistake is nothetween,an innocent netancl guilty-one, but only in-regard the nature of the wrone • The:cle- 'Perkins', Tiff:: Cantina; Law;"(1957), p..1399..

728 Interim Decision 44620 fondant acts at his peril that the female may in fact be under the age of consent:" The views expressed in the articles in law reviews, which perhaps represent an "enlightened" and "modern" sociological approach, should be more properly addressed to the legislatures of the states. However, as long as sexual intercourse with a child constitutes a crime under the law of the state, we conclude on the basis of prece- dent administrative and judicial decisions, that moral turpitude is involved. The appeal of the trial attorney will be sustained and the order of the special inquiry officer will be reversed. ORDER: It is ordered that the appeal of the trial attorney be and the same is hereby sustained. It is further ordered that the respondent be deported to The Neth- erlands on the charge stated in the order to show cause. n Anderson, LA., Wharton, Oringnat I/G&W eon Procachfro (11147), P.