The Third Circuit has determined that Pennsylvania conviction for involuntary deviate sexual intercourse with a minor is not a sexual abuse of a minor-related aggravated felony. The court noted that the Supreme Court’s decision in Esquivel-Quintana did not purport to give a full definition of sexual abuse of a minor, ruling only on the narrow issue of how the age of victim and the age difference between the victim and perpetrator in a statutory rape offense could inform the analysis of whether conduct qualified as sexual abuse.
The court went on to conclude that given the severe consequences of an aggravated felony finding, a mens rea of recklessness could not suffice to qualify a conviction as an aggravated felony, but rather, a mens rea of knowingly is required with respect to the sex act in question.
Turning to the Pennsylvania statute at issue, the court noted that because the statute itself lacked a mens rea, the Pennsylvania gap-filling measure dictated that the minimum mens rea is recklessness. As such, the conviction is not a categorical match to the generic definition of a sexual abuse of a minor aggravated felony.
The full text of Cabeda v. AG can be found here: