Interim Decision #1620 

Maze ox DINGENA 

In Deportation Proceedings 

A-11168098 

Deckled by Board July 21, 190 

Conviction of the offense of sexual intercourse with a female child (under Id 

years of age) in violation of section q4.4.10(2) of Wisconsin Statutes is conviction of a crime involving moral turpitude. 

CZERGE' 

Order: Act of 1952LSection 24.1(a) (4) t8 II S.C. 1251(a) (4)3—Convicted 

after entry of two crimes involving moral turpitude. 

• to wit: sexual intercourse with a child and burglary. 

The case comes forward on appeal by the trial attorney from the 

order of the special inquiry officer dated February 2, 1966 that the 

proceedings be terminated. . 

The record relates to a native and citizen of the Netherlands, 20 

years old, male, single, who last entered the United States at the 

part of New York in August 1964 as a, returning resident after an 

absence from April 1964. He had been originally admitted to the 

United States for permanent residence on February 10, 1960. He 

also had been absent from the United States from November to December 1963. On the occasion of both absences he departed and returned with his parents. 

On April 5, 1965 the respondent was convicted in the Circuit Court 

of Milwaukee County at Milwaukee, Wisconsin of the offense of sexual intercourse with a child upon his plea of guilty of violation of 

section 944.10(2), Wisconsin statutes, was given a suspended sentence, and was placed on probation for two•years. On June 30,-1965 

he was convicted upon his plea of guilty of burglary and was sentenced to an. indeterminate term of not more than three years. Probation was revoked on the conviction of sexual intercourse with a 

child and he was sentenced to a concurrent term with the burglary 

conviction. The respondent testified that he was tried in the Circuit 

Court of Milwaukee, Wisconsin on September 10, 1965 for the offense 
. Interim Debision 3t1620 • 

of burglary and was convicted and sentenced to serve not more thanthree years in the WiscOnsin State Reformatory to run concurrently 

with the two sentences he received in the Circuit Court of Milwaukee, 

Wisconsin on June 30, 1965 (Ex. 4). However, the record of this 

last conviction has not been made a part of the record_ It has been 

established that the offense of sexual intercourse with a child and the 

offense of burglary for which he was convicted on June 30, 1965 did 

not arise out of the same scheme. The crime of burglary with intent 

to steal involves moral turpitude and does not require any discussion. 

The conviction of the respondent of the offense of intercourse with 

a female child has received extensive discussion by the special inquiry officer. He concludes that the crime for which respondent was 

convicted was not rape; that "mans rea" is not an element of the 

offense; that no criminal intent is necessary to convict under the 

statute. The special inquiry officer has cited law review articles urging a more liberal and realistic law regarding statutory rape of a 

consenting female beyond the age of puberty. He concludes that 

even if the• offense in the State of Michigan were statutory rape or 

even analogous to statutory rape, under the modern trend of court 

decisions because of the absence of the "mans rea" the offense of statutory rape would not involve moral turpitude. He likens the offense 

to which respondent was convicted to fornication under Wisconsin 

Statutes, Section 914.15, and observes that the crime of fornication 

does not involve' moral turpitude. The special inquiry officer concludes that the offense of sexual intercourse with a child does not 

involve moral turpitude. We shall review this finding because under 

the theory advanced by the special inquiry officer, it would appear 

that moral turpitude would not be involved in a violation of section 

944.10(3), Wisconsin Statutes, with a female under 12 years, infra. 

The offense for -which respondent was convicted is set forth in 

chapter 944 of the Wisconsin Statutes which is entitled "Crimes 

against Sexual Morality." Various headings are set forth under 

this heading : Sexual Crimes Without Consent which includes section 944.10 (rape) and 944.02 (sexual intercourse without consent) ; 

Sexual Crimes which involve children:. and Sexual Crimes between 

Adults with Consent which includes fornication (section 944.15), 

adultery (section 941.16), and sexual perversion (section 944.17). 

Section 914.10, which is listed under Sexual Crimes which Involve 

Children, provides as follows: . 

04410 Sexual intercourse with a child. Ally male who has sexual intercourse with a female he knows is not his wife may be penalized as follows: 

(1) If the female is tinder the age of 18, fined not more than $1,000.00 or im• 

priaoned not more than five years or both; or 

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_Interim Decision 40620 

(2) If the female is under me age of 10, and tile male is 19 yearn ,of aye or 

over, imprisoned not • more than 15 years; or 

(3) If the female is under the age of 12, and the male is 18 years of age or 

over, imprisoned not more than 30 years. 

The authenticated copy of the record .of complaint, conviction and 

sentence (Ex. 5) bets forth in the complaint thereof to which the 

respondent pleaded guilty, that: 

Defendant Matt Quirinus Dingena, being a male person 18 years or over, did 

feloniously have sexual intercourse with Coleen. Davy, a person of the age of 

15 years, he the said Matt Quirinus Dingena, then and there well (mowing 

that the said Coleen Davy was not his wifA contrary to section 944.10(2) of 

the statutes. • 

The predecessor statute involving this offense, section 340.47,1925 

Wisconsin Statutes, entitled "Carnal knowledge and abuse" provided, 

inter (ilia, as follows: 

Any person over 18 years of age who shall unlawfully and carnally know and 

abuse any female under the age of 18 years shall be punished by imprisonment 

in the State prison not more than thirty years nor Jess than • hue year, or by a 

One nut exceeding 9200; * 

In alleging and proving the offense under section 340.47, supra, 

it was not necessary to allege and prove force and that the act was 

against the will of a female, as she was not capable in law of giving 

consent, the averment of force and-want of consent being immaterial 

and mere surplusage.' 

The rule regardig the evidentiary effect of disclosure or failure 

to make disclosure of a rape does not apply where the element in respect of non-consent is supplied by the statute. 2 

In criminal proceedings, in which the defendant was convicted of 

sexual intercourse of a child contrary to section 944.10(2), Wisconsin 

Statutes, consent or lack of it is not an element of the crime. 2 

courts have long accepted the testimony .(if believed) Wisconsin 

of the complainant as sufficient to sustain a conviction of rape or sexual intercourse with a child.' 

The age of consent as fixed by statutory provision in practically 

all of the United States varies; .generally, such statutes raise the 

common-law age at which a, female can Consent to sexual intercourse and, this statutory increase of the age of consent from the 

1State v. Eri.4;k8on, 45 Wis. 84. 

Loose v. State, 97 N.W. 526, 120 Avis. 115. 

*Gauthier v. State, 137 N.W. 2d 101, 28 Wis. 2d 412. 

'Lanpbere v. State, 114 Wis. 193, 89 N.W. 128; Haley v. State, 207 Wis. 193, 

240 N.W. 829; State v. Fischer. 228 Wis. 181, 279 N.W. 861; State v. Pries, 246 

Win 521, 17 NM. 25 578; State v. Pickett, 259 Wis. 593, 49 N.W. 2d 712. 

725 
Interim Decision #1620 

common-law age of ten years marks the only difference between 

statutory and common-law rape of a female child. Where a statute 

makes it either rape or carnal knowledge to have illicit sexual intercourse with a female under a specified age without any provision 

regarding her consent, such statutes are construed as fixing the age 

of consent, and the purpose of these statutes is to protect young females from illicit acts of the opposite sex by rendering such females 

under the specified age incapable of consenting to sexual intercourse. 

Thus, sexual intercourse with a female under the age of consent at 

common-law or as fixed by statute constitutes raps or the statutory 

crime of carnal knowledge, whether or not the act be accomplished 

against her will, or with or without her consent. If she is under the 

age limit fixed. by statute, consent is immaterial, as is force and resistance. Hence, to constitute the offense %A intercourse with a female below the age of consent, the only material elements are the 

carnal knowledge and the age of the female. -The female's age at 

the time the act charged was committed determines whether she is 

within the age of consent fixed by a statute then in force.' 

Under general rules, en indictment or information for rape or carnal knowledge or abuse of a person under the age of consent must 

sufficiently allege the essential elements of the offense. Such an indictment may and must allege carnal knowledge by the use of those 

words or by their equivalent. Where the statute punishing the offense 

uses such an expression as "sexual intercourse" to describe the act, 

an information charging that accused did. ravish and carnally know 

that prosecntrir is sufficient, since "carnal knowledge" means sexual 

intercourse.° 

Although statutory rape is not a crime included under the present ' 

or predecessor of Wisconsin statutes, the offenses of carnal knowledge 

of a female under a certain age and sexual intercourse with a female 

under a certain age are similar, in that if she is under the age fixed 

by the•statute, consent is immaterial and the only elements necessary 

to be proved to establish the crime are the fact of carnal knowledge 

and the age of consent. 

The case of the United States v 'Tombs, 113 F. Supp. 203 (1953), 

appeal dismissed 346 U.S. 892, held that rape and carnal knowledge 

and abuse constitute distinct and separate offenses, and that Congress, 

by deleting the latter offense from the list of offenses enumerated in 

the "Major Crimes Act" (18 U.S.C.A.. 1163) indicated that Congress 

did not think carnal knowledge should be made an offense under the 

'75 0.3.9., we. 18, pp. 478, 479. 

•Idem, sections 10(a), 89(d). 

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Interim. Decision #1620 

Major Crimes Act. In this case, while Making a distinction between 

rape and carnal abuse because carnal abuse was deleted as one of the 

enumerated offenses in the list of Major Crimes, in accordance with 

the usual ruling that criminal statutes must be ,strictly construed, 

the court held it was not within its province to create an offense by 

construction of a Statute, and declined to include within the offense 

of rape the offense of carnal -knowledge. The Jacobs case therefore simply stands for a familiar holding of strict construction in a 

criminal case. 

Sexual offenses with children similar to that for which the respondent was convicted in the instant ease hare previously been 

held to involve moral turpitude. In Matter of F —, 2 I. & N. Dec. 

610 (1946), the alien was convicted in Illinois for contributing to 

the delinquency of a child on a criminal information that he took a 

15 year old female child into a basement and had sexual intercourse 

with her. Moral turpitude was found because the acts were of the 

nature, commonly referred to as statutory rape. For the same reason, in Matter of R—, 3 L & N. Dec. 562 (1949), it was held that a 

conviction for violation of section 301(2) of tho Canadian Criminal 

Code 'dealing with carnal knowledge of a girl of previous chaste 

character under the age of 16 and above the age of 14, not being the 

wife of the accused, involved, moral turpitude. In Matter of P—, 

5 L & N. Dec. 392 -(1953), the alien was convicted in Massachusetts 

for the offense of abuse of a female child, the indictment charging 

that he assaulted a female child under the age of 16 years with intent to unlawfully and carnally know and abuse her_ The alien's 

attorney contended that the Massachusetts offense did not involve 

moral turpitude because under the statute a man could be convicted 

even though he did not know the girl was under age, the crime re, 

quire& no force, knowledge, or intent, and the crime committed was 

merely fornication which could not be considered base, vile, 'or depraved. The Board found the contentions of counsel with respect 

to this crime completely without merit, citing cases.' 

Matter of M—, 9 I. & N. Dec. 452, involved the immediate predecessor to the present section 944.10, Wisconsin Statutes, namely, 

section 310.47, Wisconsin Statutes. In that ease the Board likened 

the crimes to statutory rape and held that it involved moral turpi. 

tude, citing Pino v. Nioork, 215 F.2d 237, reversed on other grounds, 

349 U.S. 901; and Bendel v. Nagle, 11 F.2d. 719.8 

This conclusion, was endorsed sub tone, Pino r. Nicoll:I, 119 F. Supp. 122, 

affirmed 215 F.2d 237 (1st Cir., 1954), reversed on other grounds, 349 U.B. 901. 

The Board decision in Matter of If—, 9 L & N. Dee. 452, was atermed sub 

asst. Marks v. Enteral/. 315 F.2d 673 (2nd Clr., 1963), acrd. 870 U.S. 810t 

727 
Interim Decision #1620 

In Bendel v. Nagle, 17 F.2d (9th Cir. 1927), the alien .had been 

convicted in Maryland of, the crime of having carnal knowledge of a 

female child of the age of 15 years. The court stated that the crime 

of which the appellant was convicted is usually classified as rape, 

the e.atuto simply raising the oommon -law age of consent, and such 

a crime manifestly involves moral turpitude. .To the same effect was 

the ease of Ng Sui,Tring v. United States, 46 F.24 755 (7th Cir. 

1931) where the court found the. Illinois offenses of statutory rape 

and contributing to the delinquency of a minor female child to involve moral turpitude. 

The special inquiry officer has found the offense set forth in section 94410, Wisconsin: Statutes, identical to the offense of forniea- 

. dim under 914.15 Wisconsin.Statutes which defines fornication as 

sexual intercourse with a person not his spouse, fine not more than 

$200 or imprisonment not more than six months or both. However, 

he completely ignores the fact that the crime of fornication is set 

forth in section 944.15 Wisconsin Statutes which involves Sexual 

Crimes between Adults' with Consent, whereas section 944.10, sexual 

intercourse with a child, deals with Sexual Crimes 1Vhieh Involve 

Children.• The latter offense sets forth the different statutory ages 

of consent at which the female is incapable in law of consenting because of the concern. of society with protecting such females under 

the specified ages from illicit acts of the opposite sex. The penalty 

increases as the age of the female decreases. 

It is concluded that whether the offense be designated as statutory 

rape, carnal knowledge of a female under the age'of consent, or sexual intercourse with S child under the age of consent, the essential 

and material elements in all these offenses are the carnal knowledge 

or intercourse and the age of the female. If sexual intercourse is 

is present, and it is established that the female is under the age of 

consent, the element of mens rea does not enter because of the very 

nature of the offense and the interest of iociety, in rendering, such 

feinales incapable of giving consent: 

The mistake as to the age:of s girl in a statutory- rape case is not 

an innocent' and, non-negligent Mistake of fact. The conviction 

is upheld oil the ground that what was done would not have been 

proper even if the facts had been as he reasonably supposed them 

to be. 'The theory of the-courts' in these cases has been that Mistaking the age of the girl in a statutory, tape case is not an innocent 

mistake of fact. The mistake is nothetween,an innocent netancl 

guilty-one, but only in-regard the nature of the wrone The:cle- • 

'Perkins', Tiff:: Cantina; Law;"(1957), p..1399.. 

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Interim Decision 44620 

fondant acts at his peril that the female may in fact be under the age 

of consent:" 

The views expressed in the articles in law reviews, which perhaps 

represent an "enlightened" and "modern" sociological approach, 

should be more properly addressed to the legislatures of the states. 

However, as long as sexual intercourse with a child constitutes a 

crime under the law of the state, we conclude on the basis of precedent administrative and judicial decisions, that moral turpitude is 

involved. The appeal of the trial attorney will be sustained and the 

order of the special inquiry officer will be reversed. 

ORDER: It is ordered that the appeal of the trial attorney be and 

the same is hereby sustained. 

It is further ordered that the respondent be deported to The Netherlands on the charge stated in the order to show cause. 

n Anderson, LA., Wharton, Oringnat I/G&W eon Procachfro (11147), P. 

129