"Forcible Sex Offense" Includes Offenses Committed With Constructive Force, But Not Offenses With Freely Given Consent-In-Fact

United States v. Gomez-Gomez, No. 05-41461 (5th Cir. Oct. 21, 2008) (en banc; per Jolly and Benavides)

Both guideline §2L1.2 and §4B1.2(a) list "forcible sex offenses" as crimes of violence under their respective definitions. COV mavens are well aware that the Fifth Circuit has addressed the question of just what constitutes a "forcible sex offense" several times in the past few years, and the results haven't been entirely consistent with each other. Hence Gomez-Gomez, in which the en banc court steps in to clarify just what the term means for purposes of guideline §2L1.2's 16-level COV enhancement. Unfortunately, clarity remains elusive because 1) on November 1st, an amendment defining "forcible sex offense" under §2L1.2 takes effect, and it's different from the one Gomez-Gomez adopts, and 2) the opinion expressly declines to address whether the holding applies to §4B1.2(a)'s COV definition, which is not subject to the amendment to §2L1.2.

So how did we get here? Cases such as United States v. Houston and United States v. Sarmiento-Funes, without adopting a comprehensive definition of the term "forcible sex offense," held that it did not include offenses in which the sexaul activity was consensual in fact, even though legally non-consensual. But then last year, in United States v. Beliew, a Fifth Circuit panel held that an offense involving consent obtained by use of constructive force---in Beliew, it was an adult's use of influence over a minor to obtain factual but legally invalid consent---amounts to a forcible sex offense.

Then we had the panel opinion in United States v. Gomez-Gomez, holding that, under the Houston/Sarmiento-Funes approach, the 1991 version of a California rape statute that could apply when a defendant essentially blackmailed a person into consenting to sex was not a forcible sex offense. The panel acknowledged the tension between its holding and Beliew, but concluded that, to the extent Beliew conflicted with Houston and Sarmiento-Funes, the earlier cases controlled. Judge Jolly concurred, but urged the court to reconsider the case en banc.

That happened, and the court has essentially said that the Houston/Sarmiento-Funes and Beliew approaches are both correct. If the offense in question encompasses legally non-consensual sex in which consent was freely and voluntarily given, it is not a forcible sex offense. But if the consent was obtained by constructive force, then it is a forcible sex offense. As the court explains it:

[W]e find that sex offenses committed using constructive force that would cause a reasonable person to succumb qualify as “forcible sex offenses,” and therefore crimes of violence, under § 2L1.2. Such offenses, by definition, involve victims who have not consented in fact, even if the victim has nominally consented. As we use the phrase, “consent in fact” means consent actually and freely given. A mere word or action indicating consent that is given under duress, whether through physical or nonphysical means, and against the free will of the victim, indicates nothing about whether the victim in fact wishes to engage in sex; such nominal consent is solely a creature of the duress, and the perpetrator who has applied physical or constructive force to make the victim submit cannot reasonably interpret such a word or action as indicating that the victim actually wishes to manifest consent. See Black’s Law Dictionary 542 (8th ed. 2004) (defining duress as “a threat of harm made to compel a person to do something against his or her will or judgment”). Such “consent” is not simply null as a matter of law, as with a word or action indicating consent freely given by an underage victim in a statutory rape case, but null as a matter of fact.

Note that as of November 1, 2008, the term "forcible sex offense" will be defined in §2L1.2's COV definition to include offenses “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced).” As you can see, that definition includes some conduct---illegal sex in which consent is freely given---that is not a "forcible sex offense" under Gomez-Gomez's definition.

And then there's the matter of the COV definition in §4B1.2(a). The Fifth Circuit has thus far interpreted "forcible sex offense" the same way in §2L1.2 and §4B1.2(a). Will it continue to do so? Consider this cryptic footnote from the opinion:

We decline to address the implications of our interpretation in this case of the term “forcible sex offenses” under § 2L1.2 for the meaning of same phrase in § 4B1.2. Although § 4B1.2 and § 2L1.2 both list “forcible sex offenses” as crimes of violence, § 4B1.2 does not contain “statutory rape” and “sexual abuse of a minor” as separate and distinct crimes of violence. We leave the task of further specifying the meaning of “forcible sex offenses” in either section for cases that squarely present those issues.

Making things even more uncertain, the amendment defining "forcible sex offense" under §2L1.2's COV definition does not address §4B1.2(a)'s COV definition.

Finally, there's a dog that didn't bark in Gomez-Gomez. Recall that the court had asked the parties to address whether Calderon-Pena---an earlier en banc decision adopting the Taylor/Shepard categorical approach for COV questions---should be modified or overruled. Gomez-Gomez doesn't address that question at all, and in fact expressly quotes Taylor for the rule that "we consider the offense categorically by looking 'only to the fact of conviction and the statutory definition of the prior offense.'"