Saturday, January 15, 2005

United States v. Asberry (9th Cir. - January 11, 2005)

Look, I'm hardly going to defend statutory rape. It's properly a crime. So's child molestation, while we're at it. So's a lot of other stuff. You get my point.

That said, I find it difficult to believe that when an 18-year old has consensual intercourse with a 15-year old, that offense should really be considered a "crime of violence" under the Sentencing Guidelines. Even though that is what Judge Gould (alongisde Judge Wallace) holds here. It seems even less credible to argue, as they do, that this offense is a crime of violence because it "by its very nature present[s] a serious potential risk of physical injury to another." Consensual sex between an 18-year old and 15-year old? Really?

I think that Judge Bea's concurrence has the slightly better of the argument. He forthrightly admits that this offense is indeed a crime of violence under circuit precedent, and hence joins the result, but argues that this precedent is wrongly decided. That seems right to me. Now, I admit that the Sentencing Guidelines can define "crime of violence" any way they want; e.g., if they want to define littering as a crime of violence, that's okay, and I guess we just go along with it. And I also admit that, here, it's a 21-year old and a 15-year old, which in my (perhaps prudish) mind is slightly different than 18/15 (though, for legal purposes, it doesn't matter, since it's solely definition of the offense that defines the crime -- here, a 3-year gap in the age of the participants).

But I still have a hard time believing Judge Gould's argument that a 3-year gap by its very nature presents a serious potential risk of physical injury. That argument just doesn't ring true to me.