TX Indecency With a Child Is Generic "Sexual Abuse of a Minor," Therefore a 16-Level COV Under §2L1.2

United States v. Najera-Najera, No. 07-10464 (5th Cir. Mar. 7, 2008) (Reavley, Benavides, Elrod)

Texas Penal Code § 21.11 defines the offense of "indecency with a child." For purposes of that statute, a "child" is a person under age seventeen. The offense can be commited by sexual contact or exposure, and the statute apparently covers both consensual and non-consensual conduct.

In United States v. Zavala-Sustaita, the Fifth Circuit held that Texas indecency by exposure is "sexual abuse of a minor" for purposes of the "aggravated felony" definition in 8 U.S.C. § 1101(a)(43). It concluded that a person under age seventeen "is clearly a 'minor[,]'" and that even in the absence of contact, exposure undertaken for purposes of sexual gratification is abusive. (And in so holding, the court apparently overlooked the fact that a Texas case it cited in support of the latter proposition, Uribe v. State, holds that the offense can be committed even if the child doesn't see the exposure.)

The question in Najera-Najera is whether indecency by contact, as opposed to indecency by exposure, is "sexual abuse of a minor" for purposes of the 16-level crime-of-violence definition in guideline §2L1.2. The court answers "yes." On plain error review, the court concludes that Zavala-Sustaita's construction of the term "sexual abuse of a minor" is controlling, and reasons that if indecency-by-exposure is sexual abuse of a minor, then so is indecency by contact.

COV mavens will recognize that this creates an anomaly in the §2L1.2 COV definition with regard to the age at which a person is no longer a "minor" for enumerated-offense purposes. Recall that only two months ago, in United States v. Lopez-DeLeon the Fifth Circuit considered the generic definition of another enumerated §2L1.2 COV: statutory rape. Lopez-DeLeon held that "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen." (emphasis added). Najera-Najera does not mention Lopez-DeLeon, nor does it explain why the term "minor" would have two different meanings within the same COV definition.

There's another interesting issue the court doesn't address: because the Texas indecency statute's peer exception distinguishes between heterosexual and homosexual conduct, the statute very probably encompasses conduct that would not be punishable under the generic conception of "sexual abuse of a minor." The Texas indecency peer exception creates an affirmative defense if "the actor . . . was not more than three years older than the victim," but only if the two people "are of the opposite sex." So if an 18-year-old and a 16-year-old of the opposite sex engage in consensual sexual contact or exposure, the 18-year-old is not guilty of a crime. But if they are of the same sex, then it is a crime. Putting aside the questionable constitutionality of that distinction in light of Lawrence v. Texas, I'd be surprised if that represents the views of a majority of states. Under the categorical/common-sense approach to COV analysis, that would make the Texas statute non-generic. The COV enhancement may still apply to a Texas conviction, but the Government would have to prove that the conviction rested on the elements of the generic offense by paring down the statute via a limited class of judicial documents, within the constraints of Taylor/Shepard. (If your head's not spinning yet, consider also that the peer exception to the Texas statutory rape provision applies equally to heterosexual and homosexual intercourse. Go figure.)

One last thing: even though the court correctly notes that the actual facts underlying a prior conviction aren't considered in the COV analysis, it nevertheless recites the facts of Najera's prior in a footnote. If those facts aren't relevant, then why mention them at all?