IN THE MATTER OF M

In DEPORTATION Proceedings

56138/449

Decided by the Board January 21, 1944

Crime involving moral turpitude-Sexual intercourse with a feeble-minded woman-Section 191 of the Nebraska Criminal Code Statutory rape— Nebraska.

1. Sexual intercourse with a feeble-minded woman knowing her to be such, in violation of section 191 of the Nebraska Criminal Code (R. S. 8766, 1913), is a crime involving moral turpitude. Her mental condition negatives the idea of consent.

2. Statutory rape in violation of Nebraska law is a crime involving moral turpitude.

CHARGE:

Warrant: Act of 1917-Sentenced more than once for crimes involving moral turpitude; statutory rape, sexual intercourse with feeble-minded woman.

BEFORE THE BOARD

Discussion: The Presiding Inspector proposes that the respondent be found subject to deportation on the charge above specified. The Central Office concurs.

The respondent is a native and citizen of Italy, 63 years of age, married. He last entered the United States on or about May 26, 1907, at St. Johns, N. Dak. He was admitted to United States citizenship in 1921 and on November 10, 1924, his certificate of citizenship was canceled on the ground that he had not been a person of good moral character for the 5 years preceding the date of his naturalization.

On May 28, 1924, the respondent was convicted in Nebraska of the offense of statutory rape committed on August 31, 1923, and on September 26, 1924, he was sentenced to imprisonment for a term of 10 years. The crime of statutory rape is one involving moral turpitude (Bendel v. Nagle (C. C. A. 9, 1927) 17 F. (2d) 719).

On September 10, 1942, the respondent was convicted in Nebraska of the crime of unlawfully having sexual intercourse with a female, other than his wife, said female being of feeble mind and known to him to be such. For this conviction the respondent was sentenced to imprisonment on September 11, 1942, for a term of 8 years.

The crime was committed on June 21, 1942. It is our view that the crime of fornication in and of itself does not involve moral turpitude

(File 55950/392). On the other hand, if the offense in question is the equivalent of rape, it is a crime necessarily involving moral turpitude. Section 191 of the Nebraska Criminal Code (R. S. 8766, 1913) punishes with imprisonment of not less than 3 nor more than 10 years any male person, 17 years old and upward, who "shall have carnal knowledge of any female other than his wife, such female being insane or of feeble mind, he knowing her to be such." The only reported decision relating to this statute is the case of Rees v. Shepherd, 84 Nebr. 268. This was a civil suit in which the section was only incidentally involved and was not discussed.

Sexual relations with mentally defective females has been made a criminal offense in several States: California, Connecticut, Iowa, Kentucky, Minnesota, New York, and Texas. The terms of the statute vary. In each of these jurisdictions it has come before the court in criminal proceedings.

In California, Iowa, Minnesota, New York, and Texas the offense is included in the general rape statute.

California:

*

Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: (2) Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent. Penal Code, section 261.

People v. Griffin ((1897) 49 P. 711) and People v. Perry ((1914) 146 P. 44) hold that the statute embraces an offense not cognizable as such at common law; that its purpose is to protect females incapable of legal consent, through mental weakness, although slight infirmity is insufficient, since the female may be able to exercise reasonable judgment, this being an issue of fact. However, that the defendant did not know the female was of such mental deficiency is not a defense.

Iowa;

If any person unlawfully have carnal knowledge of any idiot or female naturally of such imbecility of mind * * * as to prevent effectual resistance, he shall * * * be punished as provided in the section relating to ravishment. Code, section 3863.

The statute is designed to protect those who fall so far below the average in mental strength, that the laws which are found reasonably sufficient for the community in general do not afford them an adequate shield against outrage (State v. Enright (1894), 58 N. W. 901; State v. Haner (1919) 173 N. W. 225).

Minnesota:

Any person who shall perpetrate an act of carnal intercourse with a female of ten years or upwards, not his wife, when through idiocy, imbecility or unsound

ness of mind she is incapable of giving her consent, shall be guilty of the crime of rape. G. S. 1913, section 8655.

State v. Dombroski (1920), 176 N. W. 985, holds that the section includes all females who by reason of imbecility or unsoundness of mind are deprived of the power of realizing the nature of the act. Knowledge of the condition of the female, as in California, is not an element of the offense.

New York:

A person who perpetrates an act of sexual intercourse with a female not his wife ** (1) When through idiocy, imbecility, or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent is guilty of rape. Penal Law, section 2010.

Consent to an act of sexual intercourse requires the exercise of intelligence, based upon knowledge of its significance and moral quality. There must be a choice between resistance and assent. Whether the female was of such impaired mentality as to be unable to appreciate the nature of the act or to give the consent which the law requires is a question of fact for the jury (People v. Pelvino (1926) 214 N. Y. S. 577).

Texas:

Rape is the carnal knowledge of a woman other than the wife of the person having such carnal knowledge with or without consent and with or without the use of force, threats, or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having carnal knowledge of her knowing her to be so mentally diseased. Penal Code, article 1183.

Defendant was convicted of carnal knowledge of a mentally diseased person, 26 years of age. It was held that mere mental deficiency is not sufficient to invoke the statute. The female must be so mentally impaired that she has no will power to assent or dissent (Williams v. State (1934), 69 S. W. (2d) 418).

Kentucky makes it a crime "to carnally know a female under the age of 16 years or an idiot" (R. S. 1155). In Jones v. Commonwealth ((1913) 159 S. W. 568) the court stated that the purpose of the statute is to protect females who, by reason of mental weakness, are incapable of knowing right from wrong, or, if knowing it, have not the power to resist the temptation.

Section 6277 of the General Statutes of Connecticut makes it a criminal offense "to carnally know a female under the age of 45 years who is epileptic, imbecilic, feeble-minded, or a pauper." Apparently because of the particular phraseology employed by the legislature, Connecticut holds that the purpose of the statute is not to protect the individual, but, rather the public and the community against the danger of increasing the number of mental defectives. Consequently,

844885-50- -3

the degree of mental deficiency or whether the female is able to know the right or wrong of her conduct are immaterial in a prosecution under the statute (State v. Wyman (1934), 173 A. 155, 83 A. L. R. 913).

If the Nebraska statute with which we are presently concerned is reasonably susceptible of the construction reached by the courts of Connecticut, California, and Minnesota, it might be seriously argued that the crime does not involve moral turpitude. In Connecticut it is no more than a public wrong and not necessarily of a nature which would require the offender to be characterized as depraved, base, and vile. In California and Minnesota knowledge of the mental deficiency of the female is of no significance. In Nebraska, however, an essential element of the offense is that the perpetrator have knowledge of the impaired mental condition. It follows, therefore, that no conviction can be had, as in California and Minnesota, without the requisite awareness of the offender that he has been dealing with a mental defective. Likewise, it follows that, if knowledge is required, the intent of the Nebraska law must be to protect not the public and the community but the individual.

We conclude that the offense of which the respondent was convicted necessarily involves moral turpitude. In essence the crime is having sexual relations with a woman whose mental powers are impaired to an extent negativing the idea of consent, the offender having knowledge of that condition..

We find that the charge in the warrant of arrest is sustained.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That the respondent was born in Italy and was a citizen of Italy at birth;

(2) That the respondent last entered the United States on May 26, 1907, at St. Johns, N. Dak.;

(3) That the respondent was admitted to United States citizenship

in 1921;

(4) That the respondent's certificate of citizenship was canceled on November 10, 1924;

(5) That on May 28, 1924, the respondent was convicted in Nebraska of the crime of statutory rape committed on August 31, 1923; (6) That on account of the foregoing conviction the respondent was

sentenced on September 26, 1924, to imprisonment for 10 years; (7) That on September 10, 1942, the respondent was convicted in Nebraska of the crime of unlawfully having sexual relations with a female, other than his wife, said female being of feeble mind, and known to him to be such in violation of section 191 of the Nebraska Criminal Code (R. S. 8766, 1913);

(8) That the said crime was committed on June 21, 1942;

(9) That on account of the foregoing conviction the respondent was sentenced on September 11, 1942, to imprisonment for 8 years. Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That the respondent is an alien;

(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that on or after May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude committed after entry, to wit: Statutory rape and felonious sexual intercourse with a feeble-minded female in violation of section 191 of the Nebraska Criminal Code (R. S. 8766, 1913).

(3) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Italy at Government expense. Other Factors: The respondent has been married three times. His first two marriages have been dissolved. His present wife resides at Rulo, Nebr. He has three adult children residing in the United States, issue of his first marriage. He testified that he does not know how his wife is supported. His first crime involved the daughter of his second wife; and his second crime the daughter of his present wife. Order: It is ordered that the alien be deported to Italy at Government expense on the charge contained in the warrant of arrest.

It is further ordered That execution of warrant be deferred until alien is released from imprisonment.