In the context of a federal criminal case, the Ninth Circuit determined that a conviction for third-degree child molestation in Washington did not qualify as a sexual abuse of a minor aggravated felony.  To constitute sexual abuse of a minor, a conviction must contain the following four elements:  (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.  Alternatively, the conviction must contain the following three elements: (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. 

The court concluded that the Washington statute at issue was indivisible, and was missing required elements from the second definition of sexual abuse of a minor (which was the definition at issue in the current case).  Specifically, the Washington statute criminalizes touching over clothing as opposed to the generic offense’s requirement of skin-to-skin contact.  Thus, it is missing the element of abuse required by the second definition of sexual abuse of a minor.

The full text of US v. Martinez can be found here: