MATTER OF DINGENA
A-11163098
In Deportation Proceedings
Decided by Board July 21, 1966
Interim Decision #1620 | 11 I. & N. Dec. 723
CHARGE:
Order: Act of 1952—Section
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 port 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 December 1963. On the occasion of both absences he departed and returned 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 sexual intercourse with a child upon his plea of guilty of violation of section
The conviction of the respondent of the offense of intercourse with a female child has received extensive discussion by the special inquiry officer. He concludes that the crime for which respondent was convicted was not rape; that “mens 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 urging 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 “mens rea” the offense of statutory 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 concludes 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
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 section
944.10 Sexual intercourse with a child. Any male who has sexual intercourse with a female he knows is not his wife may be penalized as follows:
(1) If the female is under the age of 18, fined not more than $1,000.00 or imprisoned not more than five years or both; or
(2) If the female is under the age of 15, and the male is 18 years of age 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) sets 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 knowing that the said Coleen Davy was not his wife, 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 alia, 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 less than one year, or by a fine not exceeding $500; * * *
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 surplusage.1
The rule regarding the evidentiary effect of disclosure or failure to make disclosure of a rape does not apply where the element in respect 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
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 intercourse and, this statutory increase of the age of consent from the
Under general rules, an indictment or information for rape or carnal knowledge or abuse of a person under the age of consent must sufficiently allege the essential elements of the offense. Such an indictment 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 prosecutrix is sufficient, since “carnal knowledge” means sexual intercourse.5
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.6
The case of United States v. Jacobs, 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” (
Sexual offenses with children similar to that for which the respondent was convicted in the instant case have 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 reason, in Matter of R-, 3 I. & N. Dec. 562 (1949), it was held that a conviction for violation of section 301(2) of the 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 I. & 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 intent 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 required no force, knowledge, or intent, and the crime committed was merely fornication which could not be considered base, vile, or depraved. The Board found the contentions of counsel with respect to this crime completely without merit, citing cases.7
Matter of M-, 9 I. & N. Dec. 452, involved the immediate predecessor to the present section
The special inquiry officer has found the offense set forth in section
It is concluded that whether the offense be designated as statutory rape, carnal knowledge of a female under the age of consent, or sexual intercourse with a 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 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 society in rendering such females incapable of giving consent.
The mistake as to the age of a girl in a statutory rape case is not an innocent and non-negligent mistake of fact. The conviction is upheld on 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 mistaking the age of the girl in a statutory rape case is not an innocent mistake of fact. The mistake is not between an innocent act and a guilty one, but only in regard to the nature of the wrong.9 The de-
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 precedent 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 Netherlands on the charge stated in the order to show cause.