BIA Holds That “Rape” Under INA § 101(A)(43)(A) Includes 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.  “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 Defendant Had A Culpable Mental State As To Such Impairment.

On October 20, 2017, the Board of Immigration Appeals (BIA or Board), in ruling on the appeal of a respondent convicted of aggravated felony rape under INA § 101(a)(43)(A) and ordered removed by the Immigration Judge (IJ), discussed what acts are encompassed by “rape” and whether the “substantial impairment” standard found at § 2907.02(A)(1)(c) of the Ohio Revised Code Annotated is synonymous with an incapacity to consent.  Initially, held the BIA, whether a conviction is for aggravated felony rape under § 101(a)(43)(A) is a question of law the Board reviews de novo.

To begin its analysis, the BIA noted that its inquiry is governed by the categorical approach, which requires an adjudicator to “compare the scope of conduct punished as rape” under Ohio law with the generic definition of “rape” in § 101(a)(43)(A).  The term, explained the opinion, was added to the INA in 1996, but is not defined by the Act or any other provision of federal law.  In the absence of statutory definition, held the BIA, the Board must “define the term according to its ordinary, contemporary meaning in 1996” when “rape” was added to the aggravated felony provisions.  

Respondent argued that the BIA’s 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”; as only a minority of such jurisdictions included digital or mechanical penetration in that definition, he claimed that in 1996 the consensus was that this conduct was not rape.  The Board disagreed, finding that many of these States treated such crimes and rape as synonymous and interchangeable – quoting an Illinois Supreme Court decision to point out that the goal of renaming these crimes was to take a “hodgepodge of preexisting statutes” and create one comprehensive law “that reflects the fact that rape encompasses all types of sexual assault”.  Put another way, held the Board, Congress’ “restyling” of “rape” into forms of “sexual abuse” was meant 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 “rape” includes a wider range of unacceptable conduct than coerced sexual intercourse.  

As to the sexual act required for a conviction, the BIA noted that by 1996 the State consensus was that “rape” encompassed not only vaginal, anal, and oral intercourse, but also digital and mechanical penetration as well.  Thus, held the Board, because a majority of States defined rape so as to include these acts, “such offenses are also covered by the definition of ‘rape’ in section 101(a)(43)(A)…”, no matter how slight the penetration.

Regarding the issue of consent, the BIA framed the inquiry as how to define lack of consent generally and where a victim’s mental condition amounts to a “prohibitive condition” that makes an act of sexual penetration unlawful.  Setting forth the Ohio statute under which respondent was convicted as defining “rape” as a sexual act where either 1) the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without consent by the defendant or 2) the victim’s mental capacity is substantially impaired and the defendant knew or had reason to know, the Board found respondent conviction to have been based on the latter circumstance.  Here, the respondent’s argument appeared to highlight the phrase “incapable of giving consent”, so as to attribute to the term “a meaning that requires complete incapacitation, or an inability to vocalize consent”; this interpretation, found the opinion, “is flatly at odds with the consensus in 1996.”  Yet by that time, stated the BIA, the term “incapable” did not denote an absolute inability to consent, merely an inability to give effective or meaningful consent.  In other words, held the Board, the “pivotal question” is whether a victim is substantially able to understand what she was doing; this 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”.  The IJ’s order was therefore affirmed and the appeal dismissed.  Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

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