BIA Defines Rape In Precedential Deportation Ruling
The Board of Immigration Appeals in a precedential ruling has determined the definition of rape and consent under the Immigration and Nationality Act, in an appeal brought by a native of the United Kingdom living in the U.S. who was ordered removed after being convicted of the crime in 2011.
In an opinion, a three-judge BIA panel determined that the term “rape” found in Section 101(a)(43)(A) of the INA encompassed not just an act of vaginal, anal or oral intercourse, but also digital or mechanical penetration, no matter how slight. In making that decision, the immigration board cut off the appeal of David Paul Keeley, who’d argued that an immigration judge had erred by finding that he’d committed an aggravated felony under that section of the law, which did not previously define rape.
The BIA panel in its opinion also addressed the definition of consent in reference to rape, deciding that in some cases it means the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.
That decision came after Keeley disputed whether the term “substantial impairment” contained in the Ohio law he was convicted under meant the same thing as the term “incapacity to consent” found in the INA.
Keeley, who became a permanent U.S. resident in 1997, was convicted of rape under Ohio law in January 2011, and was ordered removed in August 2016 by an immigration judge who concluded Keeley committed an aggravated felony under INA Section 101(a)(43)(A).
The term rape was added to the INA subsection in 1996, thus the BIA panel in its decision Friday sought to determine the definition of rape as it was viewed at that time.
Keeley argued that, in determining what the definition was, the BIA’s inquiry should be limited to looking at the laws of 23 states that in 1996 prohibited a crime specifically called “rape.” Because “digital or mechanical penetration” was not included in the definition of rape in a majority of those states’ laws, the consensus in 1996 was that such conduct was not considered rape, he argued.
Keeley pointed out that the Fifth Circuit took such an approach in the 2012 case of Perez-Gonzalez v. Holder, when it found that digital penetration was not commonly considered rape in 1996.
But the BIA said that both Keeley and the Fifth Circuit’s approach was flawed, because it failed to account for the fact that several other states had laws on the books in 1996 which used terms other than rape – for instance sexual assault or sexual battery – to refer to crimes prohibiting nonconsensual sexual intercourse.
At that same time, Congress was also changing the term “rape” in federal laws to “aggravated sexual abuse” and “sexual abuse” as a way to remove barriers associated with the traditional understanding of rape to bring federal law more in line with the states’ consensus that rape refers to a broader range of unacceptable conduct, the BIA said.
Therefore, it was inappropriate to focus solely on states with laws in 1996 specifically prohibiting “rape” in order to reach a definition of that term, the BIA concluded. Instead, every state which criminalized unlawful sexual conduct should be analyzed, which reveals a majority state consensus that rape included not just vaginal, anal or oral intercourse, but also digital and mechanical penetration, the BIA said.