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A person convicted of statutory rape is considered to have committed a crime of violence even if the perpetrator did not actually physically harm the victim, a three-judge panel of the 2nd U.S Circuit Court of Appeals has ruled. In doing so, the panel reversed U.S. District Senior Judge Peter C. Dorsey, who had granted a habeas corpus petition last year for Haitian citizen Serge Chery after finding that a conviction under C.G.S � 53a-71 didn’t constitute a crime of violence for purposes of immigration deportation proceedings. On appeal, the 2nd Circuit panel of Judges Jos� A. Cabranes, Joseph M. McLaughlin and Ellsworth A. Van Graafeiland agreed with an initial Board of Immigration Appeals (BIA) affirmation, which held that a conviction under Connecticut’s statutory rape law involved a substantial risk that physical force might be used against a victim in the course of committing an offense. Chery, who was 33 at the time of the 1998 incident, was convicted of sexual assault in the second degree in 1999 for having consensual sexual relations with a 14-year-old girl. He was sentenced to five years in jail, two years of which were mandatory, with 10 years of probation. Based on his conviction, the Immigration and Naturalization Service (now the Bureau of Immigration and Customs Enforcement) found that Chery could be removed from the United States — where he had become a legal permanent resident — because his sexual assault conviction constituted a crime of violence under federal aggravated felony laws. When the BIA later dismissed Chery’s appeal of the INS ruling, he filed a habeas petition in U.S. District Court. In granting Chery’s petition, Dorsey ruled the statute could not be read as inherently involving the use of physical force. Nor could it be seen as involving a lack of consent of the victim, from which the use of force might be inferred, Dorsey determined. He added that the immigration judge, and subsequently the BIA, improperly categorized the state’s statutory rape law as a crime of violence. In considering the issue de novo, the 2nd Circuit relied on rulings by other circuit courts, including the 8th Circuit’s 1992 decision in U.S. v. Rodriquez and the 1993 U.S. v. Parson ruling by the 3rd Circuit. Although neither case dealt specifically with statutory rape, both of those courts ruled that there only needed to be a substantial risk that force may be used during an incidence of crime for it to be considered a crime of violence. The panel added that, when it comes to sexual crimes committed against children, other circuits have repeatedly recognized that there is a substantial risk that physical force will be used to ensure compliance and that, because � 53a-71 criminalizes sexual intercourse with a victim who, because of her age, is unable to truly give consent, the crime of statutory rape carried a substantial risk of physical force. “Because � 53a-71 specifically criminalizes consensual sexual intercourse, a defendant may be convicted where no actual force is used — for instance where a 17-year-old male is convicted for having sexual intercourse with his 15-year-old girlfriend,” the 2nd Circuit panel ruled. “Doubtless, cases can be imagined where a defendant’s conduct does not create a genuine probability that force will be used, but the risk of force remains inherent in the offense.” Chery’s defense attorney, Michael Moore, could not be reached by press time. Moore, a former Connecticut lawyer, now practices in Springfield, Mass. Attorneys handling the case for the Department of Justice also could not be reached. New Haven State’s Attorney Michael Dearington called the 2nd Circuit ruling “interesting.” “I think as a practical matter of law everyone considers statutory rape as a crime of violence,” Dearington said.

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