In U.S. v. Ivory, No. 06-10895 (Jan. 17, 2007), the Court held that a second degree rape conviction under Alabama State law counted as a "crime of violence" for purposes of the career criminal enhancement of the Guidelines. Second degree rape is sex with a person under the age of 16.
The Court noted that the definition of "crime of violence" involved the use of "physical force." The Court further noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Under Alabama law, a person under the age of 16 is deemed to be incapable of giving consent to sexual penetration. Consequently, the Court concluded that second degree rape involved the use of physical force.
Alternatively, the Court found that second degree rape presented a risk of the use of physical force, and therefore qualified as a "crime of violence." The Court recognized a Circuit conflict on this aspect of its holding.
