Supreme Court Approval of “50 State Surveys”

September 26, 2017
By Hanging Out with Carl Gunn


  • A recent Supreme Court opinion holds the “generic” version of “sexual abuse of a minor” for purposes of the categorical approach requires that the victim be less than 16 years old, at least in the absence of a relationship of trust.
  • The opinion’s analysis illustrates the use and potential importance of “50 state surveys” in deciding on the generic definition of an offense, by surveying the 50 states’ age requirements for sexual abuse of a minor.
  • The opinion also illustrates the use of the Model Penal Code, by also using that to support its conclusion about what the generic offense requires.



A Supreme Court opinion on the categorical approach – Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) – came down last term that’s worth sharing for a couple of reasons.  The first reason is the specific holding of Esquivel-Quintana – that “sexual abuse of a minor” under the immigration “aggravated felony” statute requires that the victim be not just less than 18 years old, but less than 16 years old, see id. at 1570, at least in the absence of a relationship of trust between the perpetrator and the victim, see id. at 1571-72 (recognizing sexual abuse of minor may include different age where perpetrator and victim are in significant relationship of trust).  This is important for those of us in California because it excludes California statutory rape convictions, for which the victim age cut-off is 18.

The second and more general point of interest in the opinion – and what leads me to post about it – is what the opinion looks to in deciding the elements of the generic crime to compare to the statute under which the defendant (or, in this instance, the petitioner) was convicted.  In a post a year and a half back, I noted two recent Ninth Circuit opinions which discussed the sources courts should survey to determine the generic form of a crime, and noted that one thing courts do – and you should do – at least in many instances, is conduct a sort of 50 state survey of how states define the crime.  (See “More on Those Great New Categorical Approach Cases” in the February 2016 link at the right.)

Esquivel-Quintana confirms this is an important source to look to.  In justifying its generic definition of “sexual abuse of a minor,” it explains, “As in other cases where we have applied the categorical approach, we look to state criminal codes for additional evidence about the generic meaning of sexual abuse of a minor.”  Id. at 1571.  It then totals up the split, noting thirty-one states and the District of Columbia set the age of consent at 16, one state sets it at 14, two states set it at 15, six states set it at 17, and the remaining ten states set it at 18.  See id.  The opinion also cites the Model Penal Code, which the Ninth Circuit cases I discussed in my prior post also noted as a source to be considered.  See id.

So Esquivel-Quintana reinforces the need – or at least great relevance – of those “50 state surveys.”  While that’s certainly not the only source for determining the generic definition of the crime in question, it’s clearly one important one.