CHARALAMBOS EFSTATHIADIS AKA HARRY EFSTATHIADIS v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, SC 19348

United States Court of Appeals for the Second Circuit

 

      Immigration; Deportation; Whether Sexual Assault in Violation of General Statutes § 53a-73a (a) (2) is a Crime Involving “Moral Turpitude” as Contemplated by Federal Immigration Law. The petitioner is a citizen of Greece and a legal permanent resident of the United States.  He pleaded guilty to four counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2), which criminalizes subjecting "another person to sexual contact without such other person's consent."  "Sexual contact" under General Statutes § 53a-65 (3) means contact "with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person. . . ."  The United States brought removal proceedings against the petitioner, alleging that he should be deported because federal immigration law dictates that an alien who “is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal conduct . . . is deportable.”  The petitioner denied that sexual assault in the fourth degree in violation of § 53a-73a (a) (2) involves moral turpitude, or “evil intent,” because the statute does not require that the offender have knowledge of the lack of consent of the victim.  Following the issuance of a final order of removal, the petitioner filed a petition for review with the Second Circuit Court of Appeals.  Upon examining the language of § 53a-73a (a) (2), the cases applying that statute, and the model jury instructions, the Second Circuit was unable to determine what level of mens rea applies to the lack of consent element of the crime of sexual assault in the fourth degree in violation of § 53a-73a (a) (2).  As a result, it was unable to decide whether the minimum conduct criminalized by the statute supports that crime's classification as a crime of moral turpitude.  Accordingly, the Second Circuit certified, and the Supreme Court accepted, the following questions: "(1) Is General Statutes § 53a-73 (a) (2) a strict liability offense with respect to the lack of consent element? and (2) If General Statutes § 53a-73 (a) (2) is not a strict liability offense with respect to the lack of consent element, what level of mens rea vis-à-vis that element is required to support a conviction?"