The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.

The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.

The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).

Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.

“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”

The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”

Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”

Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”

The full text of Menendez v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf

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