T-2733560
Decided by the Board February 17, 1954
Crime involving moral turpitude — Indecent assault — Section 292 (a) of the Canadian Criminal Code.
A conviction for indecent assault under section 292 (a) of the Canadian Criminal Code involves moral turpitude.
EXCLUDED:
Act of 1952 — Section 212 (a) (9) — Convicted of crime-Indecent assault.
Act of 1952 — Section 212 (a) (9) — Admits commission of crime-Indecent assault.
Act of 1952 — Section 212 (a) (26) — No passport and no nonimmigrant visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer at Detroit, Mich., on September 1, 1953, excluding the alien on the grounds stated above. Appellant, a 23-year-old unmarried male, a native and citizen of Canada, seeks admission to the United States as a nonimmigrant for the purpose of studying at the Meinzinger Art School, Detroit, Mich. Under 8 C.F.R. 212.3 (a), he is not required to present a passport or visa providing he is otherwise qualified for admission as a nonimmigrant.
In October or November 1952, appellant applied at an American consulate for a visa to enter the United States for the purpose of residence and employment and was told that he "couldn't live in the States" because of his police record in Canada. The record shows that an indictment returned against the appellant on October 22, 1951, in the Supreme Court of Ontario, Chatham, Ontario, Canada, charged that on October 8, 1951, he "did unlawfully assault J---- St. P----, a woman not his wife, with intent to have carnal knowledge of her without her consent, thereby attempting to commit rape, contrary to section 300 of the Criminal Code." Appellant entered a plea of not guilty to the indictment but then, with the consent of the Crown, pleaded guilty to indecent assault and on October 24, 1951, was convicted of indecent assault under section 292 (a) of the Canadian Criminal Code. He received a 3 months' suspended sentence. A certified copy of the indictment and the record of conviction were introduced in evidence.
Section 292 of the Canadian Criminal Code provides:
Indecent assault — Everyone is guilty of an indictable offense and liable to 2 years' imprisonment, and to be whipped, who:
(a) Indecently assaults any female; or
(b) Does anything to any female by her consent which but for such consent would be an indecent assault, if such consent is obtained by false and fraudulent representations as to the nature and quality of the act; or
(c) Assaults and beats his wife or any other female and thereby occasions her actual bodily harm.
In Matter of B----, A-6685343 (August 4, 1947), 3 IN Dec. 1, where an alien testified he had been charged with rape in Canada but was permitted to plead guilty to the lesser charge of indecent assault, we held that the offense of indecent assault in that case involved moral turpitude.
Counsel urges that the B---- case was incorrectly decided by this Board. Counsel contends that the crime of indecent assault as defined by the statute in Canada involves conduct which may or may not involve moral turpitude. It is pointed out by counsel that under section 292 (c) a person who assaults and beats his wife or any other female and thereby occasions her actual bodily harm is guilty of indecent assault. Counsel maintains that indecent assault in Canada does not require anything more than a simple assault against a woman.
In the instant case we are not dealing with a conviction under section 292 (c) of the Canadian Criminal Code, referred to by counsel. The record clearly shows that the appellant was convicted under section 292 (a) of that code. We find no merit in counsel's contention that indecent assault in Canada requires nothing more than a simple assault against a woman. It is clear from the Canadian Criminal Code that more than a simple assault is required for a conviction under section 292 (a), since common assaults are covered by section 291. In Beal v. Kelley, 35 Cr. App. R. 128, indecent assault was defined as an "assault accompanied with circumstances of indecency on the part of the prisoner." But the presence of indecent circumstances will not make an indecent assault of acts that, apart from the indecency, would not constitute an assault at all ( Fairclough v. Whipp, 35 Cr. App. R. 138).
It is evident from sections 292 (a) and 292 (b) of the Canadian Criminal Code and from court decisions that an indecent assault in violation of section 292 (a) is considered a sex offense against a woman without her consent. It is the opinion of this Board that an evil intent distinguishes an indecent assault from a common assault in Canada.
Indecent assault in Canada is considered a kindred offense to rape and the exception to the general rule against hearsay evidence applies so that a statement made by the complaining female shortly after the assault was committed is admissible in evidence ( Hopkinson v. Perdue, 8 C.C.C. 286 (1904); King v. Smith, 9 C.C.C. 21 (1905), and King v. Barron, 9 C.C.C. 196 (1905).
The term "indecent assault" is not defined in the code, but is largely self-explanatory ( Tremeear's Annotated Criminal Code, fifth edition, p. 334). In R---- v. McAuliffe, 8 C.C.C. 21 (1904), which involved a prosecution on a charge of presenting an indecent theatrical performance, the court stated that the word "indecent" has no fixed legal meaning and held that it devolved upon the prosecution to affirmatively prove that the performance in question was of a depraving tendency. United States courts have consistently held that an act of depravity in the private and social duties which a man owes to his fellowman or to society involves moral turpitude, ( United States ex rel. Ciarello v. Reimer, 32 F. Supp. 797; United States ex rel. Mylius v. Uhl, 203 Fed. 152). Thus, taking into consideration that "indecent" in Canada where not defined by statute denotes depravity, it is clear that indecent assault under section 292 (a) of the Canadian Criminal Code involves moral turpitude.
Counsel relies on the Pennsylvania case of Commonwealth v. Gregory, 1 A. 2d 501, in support of his contention that one can be found guilty of indecent assault for acts that do not involve moral turpitude. According to counsel, in the Gregory case it was held that a man who posed as a physician and who touched the leg of a female had committed an indecent assault. An examination of the decision in the Gregory case, however, shows that much more than the mere touching of a leg was involved. Moreover, the decision in the Gregory case is based on the law of Pennsylvania and not on Canadian law.
It is the conclusion of this Board that a conviction for indecent assault under section 292 (a) of the Canadian Criminal Code involves moral turpitude. Appellant is therefore inadmissible to the United States under section 212 (a) (9) of the Immigration and Nationality Act. Since he is so inadmissible, he is not eligible for a waiver of a passport and nonimmigrant visa under 8 C.F.R. 212.3 (a) and is also inadmissible on the documentary grounds stated above.
Counsel requests that we waive the criminal ground of inadmissibility in the event the crime for which appellant was convicted is found to be a crime involving moral turpitude. In view of the recentness and nature of the crime for which appellant was convicted, we do not feel that a waiver of the criminal grounds of inadmissibility is warranted. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.