Wednesday, July 25, 2007

1991 Version of CA Rape Statute (Penal Code § 261) Is Not a §2L1.2 Crime of Violence; Panel Member Encourages En Banc Review of This Line of Cases

United States v. Gomez-Gomez, No. 05-41461 (5th Cir. July 20, 2007) (Reavley, Jolly, Benavides)

At issue here is whether the version of California's rape statute in effect in 1991 qualifies as a "crime of violence" for purposes of the 16-level enhancement found in U.S.S.G. §2L1.2(b)(1)(A)(ii). All three judges on the panel agree that it's not, but Judge Jolly writes separately to encourage the court to reconsider this line of cases en banc.

California Penal Code § 261 defines "rape" as sexual intercourse accomplished, among other ways, by means of "duress." At the time, "duress" was defined as "a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." Although there wasn't much state case law on the issue, the terms "hardship" and "retribution" were broad enough to include things like "threatening to reveal embarrassing secrets about [the] victim" or "an employer threaten[ing] to fire a subordinate unless she complied with his demands[.]" Those don't require the use, attempted use, or threatened use of violence physical force, so the offense doesn't qualify under the force prong of the 16-level COV definition. For the same reason, the offense didn't qualify as the enumerated COV "forcible sex offense."

The court noted that it's holding is somewhat in tension with the court's recent panel decision in United States v. Beliew, which held that a Louisiana statute defined a "forcible sex offense" because it encompassed "constructive force." But it also noted that Beliew itself may be at odds with the earlier Fifth Circuit precedent on this issue (Houston, Sarmiento-Funes, etc.). So the panel acknowledgeds that to the extent a conflict exists, the earlier cases control.

Judge Jolly concurs, agreeing that the 1991 version of § 261 isn't a COV in light of Fifth Circuit precedent on force and sex offenses. But he expresses hope that the court will reconsider this line of cases en banc. In his view, common sense dictates that legally non-consensual sex is forcible sex, and existing precedent on this issue "leads to nonsensical results." He also argues that Sarmiento-Funes essentially makes the forcible-sex-offense inquiry indistinguishable from the force-element inquiry under the 16-level COV definition, an approach which he contends runs counter to the canon of statutory construction that would require the term "forcible sex offense" to have some independent meaning. He would follow the Third Circuit's approach in United States v. Remoi, which rejected Sarmiento-Funes and defined a "forcible sex offense" as "a sexual act that is committed against the victim's will or consent."

One final note: the court suggests in footnote 2 that the result might be different for a more recent version of § 261, because the term "hardship" only appeared in the definition of "duress" from 1990 to 1993. However, the current version of the statute still includes "retribtuion" in its "duress" definition, so despite what the court implies, it looks like the holding here would apply to more recent versions of the statute, as well.

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