Pre-Pubesence And Moral Turpitude In The District Of Columbia

The District of Columbia Board on Professional Responsibility in an uncharacteristic split opinion recommends automatic disbarment for an attorney’s Ohio conviction involving a guilty plea

to multiple felony counts of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4)).

The BPR majority concludes that the crime inherently involves moral turpitude. 

Cleveland.com reported on the conviction

Torres turned to abuse in late 2016, while his family was visiting his wife’s family in Fairview Park for the holidays. The boy, who was 10 years old the time, later told police that Torres abused him on two separate occasions, once around Thanksgiving and once around Christmas that year, Assistant Cuyahoga County Prosecutor Steven Szelegiewicz said.

Torres abused the boy a third time when he and his family returned to Fairview Park for Thanksgiving in 2017.

The boy eventually told a family member about the abuse, and prosecutors charged him by information in September. He pleaded guilty on Nov. 29…

Torres became the editor of the school’s law and policy review. He landed a job at the D.C. office of a global law firm where he specialized in environmental and appellate law until 2015, when he joined the Justice Department’s Environment and Natural Resources Division.

Less than a year later, Torres left government and was named senior associate at the burgeoning King & Spalding, another international law firm that, according to a November 2018 article in The American Lawyer saw its revenue surpass $1 billion.

Torres began working at Schaerr Jaffe on Nov. 1, and worked there until his Friday resignation. He is also a member of the Federalist Society, a conservative and libertarian organization that ascribes to an originalist interpretation of the U.S. Constitution. After he pleaded guilty to the sexual abuse charges has made several appearances on conservative media outlets in December, including the Lars Larson Show, to discuss the inclusion of a citizenship question on the 2020 U.S. Census. One of those appearances was on theDove TV, a media company which its website says “exists to proclaim the Good News of Jesus Christ though all media platforms.”

The fighting issue for mandatory moral turpitude purposes was the attorney ‘s knowledge of the victim’s age under a “least culpable offender” analysis.

The board majority considered as dispositive the statutory requirement that the victim be 12 years old or younger. 

In D.C., the offender gets a hearing if the least culpable defendant’s crimes would not inherently involve moral turpitude. 

The dissent would refer this matter to a Hearing Committee for a moral turpitude determination, presumably because some child victims of sex abuse might look older than their years. “Based on [its] experience, [the dissent] cannot find that everyone under the age of 13 today is pre-pubescent.” Id. at 4.

It is not clear what the dissent means by the term “pre-pubescent.” Nor is it clear what relevance that notion has to this case, since puberty is a multi- year, multi-faceted physiological process, and the evolving physical characteristics of a young child are only part of the picture. The changes in a child’s bodily appearance that begin with the onset of puberty say nothing about that child’s emotional, intellectual or psychosocial vulnerabilities. A twelve- year-old may look older than his or her chronological age, but will not think, talk or act like an adult. Victimizing such a child constitutes moral turpitude per se.

Moreover, the reasoning of the dissent would presumably charge a Hearing Committee with determining, sometime in 2020 or thereafter, whether the child victim in this case was “pre-pubescent” in November 2016, December 2016, and November 2017 when the crimes occurred. Resolving that issue would be inherently speculative, invite reliance on stereotypes, and seem to be unworkable.

Common sense prevails

Finally, we do not believe it appropriate in the assessment of the “least culpable offender” issue to conjure up fanciful or extraordinary circumstances in order to mitigate a hypothetical convicted felon’s degree of depravity. Thus we should not undertake to imagine victims with uncommon personal characteristics, as the dissent’s analysis seems to require. Nor should we dream up extreme, exculpatory factual scenarios to that end. Rather, we should assess the implications of the statutory elements as a reasonable person would.

An example of such extreme exculpatory factual scenarios may be found in In re Kenneth Schneider (my commentary linked here). 

The board majority (all the lawyers except one recusal and one not participating) concluded that a hearing was appropriate for an attorney who went to Russia “for the purpose of engaging in sexual acts with a 15-year-old Russian minor…”

The reasoning:

We conclude…that the offense is not a crime of moral turpitude per se, because applying the least culpable offender standard, a person could violate the statute without engaging in conduct that is so reprehensible that it manifestly offends generally accepted moral standards. For example, a person could travel  with the requisite illicit intent under the statute yet think better of it after crossing the relevant jurisdictional line and decide not to pursue sex with a minor.

Back on Planet Earth, there are the actual circumstances of this case, reported by the Mail Online:

A Philadelphia lawyer has been jailed for making a 12-year-old boy from the famed Bolshoi Ballet Academy his sex slave for six years….he will spend the next 15 years behind bars.

And from the Office of the United States Attorney for the Eastern District of Pennsylvania:

In the summer of 1998, Schneider, founder and president of the Apogee Foundation, traveled to Moscow, Russia where he told two ballet instructors at the Moscow State Academy of Choreography that he was willing to provide “assistance” to students attending the academy. The instructors identified a 12-year old student whose family could no longer afford to pay his board. Schneider convinced the boy’s parents to allow him to live with Schneider in an apartment a few blocks from the school. Between August 22, 2000 and November 22, 2001, Schneider engaged in a sexual relationship with the victim, bringing him to Philadelphia for a summer program in 2001, then returning to Moscow with the victim in August 2001 to continue the sexual relationship. Schneider was arrested March 27, 2010 in Larnaca, Cyprus.

Notably, both non-lawyer members of the board dissented and would find the conviction meets the definition of a crime of moral turpitude: “base, vile or depraved, or [where] society manifests a revulsion toward such conduct because it offends generally accepted morals.

Here

The Ohio Statute and the courts of that State have concluded that the touching of an erogenous zone of a child aged twelve or under “for the purpose of sexually arousing or gratifying either person” is criminal. The fact that victims protected by the statute are more than three years younger than the age of consent satisfies the criterion of Sharp and Lovendusky that every person convicted under the statute should know the inability of the victim to consent. Those who violate the Ohio Statute necessarily engage in behavior that constitutes moral turpitude per se.

There is no basis upon which to order a moral turpitude hearing into the facts of this case, where, as in Lovendusky, an infant victim of sexual abuse could be summoned to testify.

The decision was 5-4.

Dissent

Because we are required to consider the offense from the perspective of the least culpable offender, and because we do not agree that a person under the age of 13 can never reasonably be mistaken for a person over the age of 16, we cannot conclude that a violation of § 2907.05(A)(4) is a crime of moral turpitude per se…

Crimes such as those encompassed in § 2907.05(A)(4) spark strong emotions, and Ohio is justified in establishing its criminal law as it sees fit to protect its citizens. In reaching our conclusion, we emphasize that we do not minimize in any way the seriousness of protecting children from sexual assault. To be sure, reading the statute, it is not difficult to imagine many fact patterns that would surely be crimes of moral turpitude. But that is not what our analysis must be here. Because we cannot conclude that every person under the age of 13 could never reasonably be mistaken for a person over the age of 16, under the controlling standard, Respondent should have  hearing to determine whether his crime constituted a crime of moral turpitude.

The majority opinion was authored by outgoing chair Robert Bernius; the dissent by incoming chair Matthew Kaiser (disclosure: my former Professional Responsibility student).

The Board has issued a number of reports as its term comes to an end. 

The case is In re Justin Torres. (Mike Frisch)