Yesterday, the United States Supreme Court overruled the laws of 20 states by allowing criminal aliens to sexually abuse 16 and 17 year-old minors without facing the risk of deportation. In Esquivel-Quintana v. Sessions, a unanimous Supreme Court held that in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16.
Under the Immigration and Nationality Act, lawful permanent residents of the United States who are convicted of an aggravated felony can be deported. In determining which state crime categorically fits within the generic federal definition of an aggravated felony, the Court looks to similar federal laws. The law in this case is 18 U.S.C. 2243, sexual abuse of a minor or ward.
In evaluating whether or not Esquivel-Quintana’s rape conviction in California was within the ordinary meaning of “sexual abuse of a minor” in the Immigration and Nationality Act, the Supreme Court ignored the plain meaning of the word “minor” and instead engaged in a policy-driven consideration of the meaning and concept of “statutory rape.”
The Court found that statutory rape laws generally provide that an older person may not engage in sexual intercourse with a younger person under the age of consent, and that so-called “reliable dictionaries” indicate that the “generic” age of consent in 1996, when the Immigration and Nationality Act added sexual abuse of a minor as a ground for deportation, was 16.
In making this determination, the Court ignored the statutory age of consent laws of 20 states including California, New York, Illinois, Florida, and Texas which covers over 60% of the population. It rejected the Government’s argument that the word “minor” refers to the age of legal competence which is 18. The Court also explicitly invalidated the laws of 20 states which place the legal age of consent at 17 or 18 and not the Court’s “generic age of consent” of 16. The Court also found that statutory rape based solely on the age of the participants is not an especially egregious felony.
A major underpinning for the Court’s decision is the federal law found at 18 U.S.C. 2243 which sets the federal age of consent at age 16. (This same federal law sets no minimum age of consent when the parties are married which endorses and encourages child marriage as a means to escape federal criminal rape charges). Section 2243 is over twenty years old and was written well-before the dramatic growth in Internet facilitated child sexual abuse, child trafficking, and the growing awareness of the evils of child marriage. The law not only permits child marriage as a defense to rape, but condones sexual activity by children as young as 12 years old.
Early initiation of sexual activity has been linked to a wide variety of negative life outcomes including increased rates of infection with sexually transmitted diseases, increased rates of out-of-wedlock pregnancy and birth, increased single parenthood, decreased marital stability, increased maternal and child poverty, increased abortion, increased depression, and decreased happiness.
The United States State Department has declared that child marriage “is a human rights abuse that contributes to economic hardship and leads to under-investment in girls’ educational and health care needs. It undermines economic productivity, threatens sustainable growth and development, and fosters conditions that enable or exacerbate violence and insecurity, including domestic violence. It produces devastating repercussions for a girl’s life, effectively ending her childhood. Early marriage forces a girl into adulthood and motherhood before she is physically and mentally mature and before she completes her education, limiting her future options, depriving her of the chance to reach her full potential, and preventing her from contributing fully to her family and community.”
Congress should immediately change 18 U.S.C. 2243 to establish the federal age of consent at age 18 with a two year close in age exception for 16 and 17 year-old minors. Congress should also revoke the child marriage exception to rape and demand that states to do the same. Aliens and other criminals should not escape punishment and deportation under antiquated state and federal laws which continue to allow the rape and sexual exploitation of minors, child marriage, and sexual activity by children as young as 12.