Gaiskov v. Holder (7th Cir. 5/28/09)
FLAUM Coffey Kappala (Dct)
The 7th Cir upheld the Board's finding that an Indiana statute criminalizing "touching" of a minor for sexual pleasure - without regard to which part of the body is touched - constitutes sexual abuse of a minor for purposes of the AggFel statute.
The Indiana offense barred "perform[ing] or submit[ing] to any fondling or touching, of either the child or the older person, with the intent to arouse or satisfy the sexual desires of either the child or the older person" - it applied to minors ages 14 and 15, and where the adult was 18+, and more than 4 yrs older than the victim. Under the 7th Cir's decision in Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir. 2005) - which upheld the BIA's decision in Matter of Rodriguez-Rodriguez, 22 I.&N. Dec. 991, 993-94 (B.I.A. 1999) under Chevron - the result was basically preordained. Gaiskov argued that touching was too innocent to qualify and that there was no harm to the child - both arguments were rejected.
Gaiskov contends that a conviction under the Indiana statute cannot be considered sexual abuse of a minor because the prohibited conduct includes touching that is too minor to constitute sexual abuse. Specifically, he argues that the Indiana statute does not fit within the definition for “sexual abuse of a minor” because it does not require the touching of specific sexual body parts. We find this argument unconvincing. First, as our decision in Gattem illustrates, touching, let alone the touching of sexual body parts, is not required for a crime to be classified as “sexual abuse of a minor.” See Gattem, 412 F.3d at 760-61; see also Bahar v. Ashcroft, 264 F.3d 1309, 1310-13 (11th Cir. 2001) (holding that “taking indecent liberties” with a child under 16 for sexual gratification constitutes sexual abuse of a minor, even without physical contact). Second, Ind. Code § 35-42-4-9(b) does not prohibit innocent physical contact such as a hand shake or a hug. Rather, it requires the government to prove that the adult touched or fondled the child with “the intent to arouse or satisfy the sexual desires of either the child or the older person.” Because the statute requires specific intent, purely innocuous touching is not criminalized....
Gaiskov also argues, in general, that a minor victim is not sufficiently harmed by the sexual misconduct prohibited by Ind. Code § 35-42-4-9(b) for it to constitute sexual abuse. First, we reject Gaiskov’s suggestion that a minor is not seriously harmed by the conduct prohibited in Ind. Code § 35-42-4-9(b). However, even if there was little harm to the minor associated with the crime, this would not foreclose its classification as an aggravated felony.
Note that not all circuits defer to the BIA's interpretation of 101(a)(43)(A) - the 9th Cir in particular ruled in Estrada-Espinoza v. Mukasey that the term "sexual abuse of a minor" had to be read as meaning the same as "sexual abuse of a minor" as definied in U.S. criminal statute, specifically 18 U.S.C. § 2243. Other related cases include Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001); US v. Munoz-Ortenza, __ F.3d __ (5th Cir. Apr. 13, 2009); and Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001); Emile v. INS, 244 F.3d 183 (1st Cir. 2001).
The BIA uses 18 U.S.C. § 3509(a)(8) as a "guide" to understanding sexual abuse of a minor, but the 9th Cir finds that unhelpful because it is not a criminal statute. The 7th Cir has previously deferred under Chevron to the Board's interpretation of 101(a)(43)(A), and found the use of the civil statute to be reasonable. As a side not, certiorari has been requested in Canales-Matamoros v. Holder (08-643), which remains pending at the Supreme Court.