U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Sodomy Without Consent Is Rape

Sometimes the law is technical and cruel, and sometimes the law is technical and correct. Most people will probably come down on the latter side of that when it comes to the technical application of the law in the Adil Elmakhzoumi v. Sessions case.

In that matter, an immigrant seeking naturalization was rejected because of a prior conviction for sodomy without consent. On appeal, he argued that the law technically prohibited the naturalization of individuals with rape convictions, not sodomy without consent convictions. However, the Ninth Circuit rejected that argument and found that the definition of rape included sodomy without consent.

Defining Criminal Acts of Naturalization

When it comes to the naturalization process, a potential citizen must show good moral character, similarly to when lawyers get admitted to practice. While this bar is actually rather non-existent when it comes to actual morality, if a person has a criminal history, that bar could be insurmountable. Generally, if a person has been convicted of one of the aggravated felonies, it will disqualify that individual from ever qualifying for citizenship. The aggravated felonies include the most severe crimes, such as murder, rape, selling weapons, and harming children.

Elmakhzoumi became a permanent resident to the U.S. in 1992. In 2005, he was convicted of sodomizing someone who he knew could not consent because they were too intoxicated. Years later, he attempted to become a naturalized citizen, but was denied because of his conviction. He tried to argue that because the statute definition for rape used the words sexual intercourse, his sodomy conviction could not be considered rape.

The court was rather quick to point out that there is little difference between the two crimes, and that sodomy could be read into the definition. This conclusion supported the lower court's and board's decisions against Elmakhzoumi.

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