Is A Lewd Offense A Crime of Moral Turpitude?
As an immigration lawyer licensed to practice in Virginia, Maryland & DC, the issue of what types of offenses are considered crimes of moral turpitude per the Immigration Code comes up frequently. The following two cases provide us with an analysis by the Courts. When you are accused of a crime in Virginia, Maryland or DC, it is critical that you hire a criminal lawyer who understand the immigration consequences of a criminal charge.
The key factor that determines if a lewd offense is a crime involving moral turpitude is the presence of intent:
In Matter of R-D-R-, ID# 16492 (AAO July 14, 2016)
In Matter of Mueller, the Board found that a conviction for “lewd and lascivious conduct” in violation of Wis. Stat. § 944.20(2) that did not require “any intent whatsoever” was not a crime involving moral turpitude. 11 I&N Dec. 268, 270 (BIA 1965). The Board reasoned that “[ m ]oral turpitude is dependent upon the depraved or vicious motive of the alien. It is in the intent that moral turpitude inheres.” Id at 269. By contrast, the Board has held that offenses where lewdness is an element of the crime do involve moral turpitude. In Matter of Cortes-Medina, the Board held that a conviction for indecent exposure under Cal. Penal Code § 314(1) was a crime involving moral turpitude because a finding of lewdness was necessary for a conviction. 26 I&N Dec. 79, 84 (BIA 2013). See also Matter of Lambert, 11 I&N Dec. 340, 342 (BIA 1965) (holding that a conviction for “renting rooms with knowledge that the rooms were to be used for the purpose of lewdness, assignation or prostitution” is a crime involving moral turpitude); Matter of W-, 4 I&N Dec. 401 (BIA 1951) (noting that moral turpitude inheres in a conviction” … to commit or offer or agree to commit any act of prostitution, assignation, or any other lewd or indecent act.”) In making its finding in Cortes-Medina, the Board stated, “The key difference between cases like … Matter of Mueller on the one hand and Matter of Lambert on the other is lewdness. In our view, lewd intent brings the offense of indecent exposure within the definition of a crime involving moral turpitude … . ” 26 I&NDec. at 83 (citations omitted). As the Applicant’s conviction for lewd or lascivious acts involved willfully committing the act with lewd intent, we find that it is a crime involving moral turpitude and he is therefore inadmissible under section 212(a)(2)(A)(i)(I) of the Act for having committed a crime involving moral turpitude
Federal cases dealing with whether Penetration of mouth of child with lascivious intent can be considered as sexual abuse.
A kiss on the mouth without the insertion of a tongue can be considered a touching of an intimate part, constituting the essential element of sexual abuse
In People v. Rondon, 152 Misc. 2d 1018, 1020, 579 N.Y.S.2d 319, 320–21 (Crim. Ct. 1992)
The court, in People v. Rivera, supra 138 Misc.2d at 572, 525 N.Y.S.2d 118, held that the mouth was a sexual part of the body where the defendant inserted his tongue into the victim’s mouth. In Anonymous G. v. Anonymous G., 132 A.D.2d 459, 517 N.Y.S.2d 985 (1st Dept, 1987), the court referred to a list of sexually stimulating activities which included the insertion of a tongue into a mouth. Thus, courts have held the mouth to be a sexual part where a tongue has been inserted into the mouth. Since intimate part is a much broader term than sexual part (see, People v. Rivera, supra ), it is clear to this court that where an individual is kissed on the **321 mouth absent the insertion of a tongue, the mouth can be considered an intimate part of the body. Accordingly, this court holds that a kiss on the mouth without the insertion of a tongue can be considered a touching of an intimate part, constituting the essential element of sexual abuse.