In U.S. v. Owens, No. 09-13118 (Feb. 27, 2012), the Court held that convictions for second degree rape under Alabama law did not qualify as "violent felonies" under the Armed Career Criminal Act ("ACCA").
The Court noted while it had decided in U.S. v. Ivory, 475 F.3d 1232 (11th Cir. 2007) that a second degree rape under Alabama law was a "crime of violence" for career offender purposes, it would be "intellectually dishonest" for the Court to adhere that ruling in light of the Supreme Court’s intervening decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).
The Court noted that in Johnson, the Supreme Court held that ACCA’s requirement of "physical force" meant "violent force." Alabama’s second degree rape offense did not require "forcible compulsion." It only required "the act of sexual intercourse [with] slight penetration" with a person of the opposite sex who is between the ages of 12 and 16. "Although this act requires physical contact, it does not require, as an element, strong physical force or a substantial degree of force." Consequently, the offense did not have as an element "the violent physical force necessary to qualify as a violent felony under the ACCA."
The Court further found that the offense did not qualify under ACCA’s residual clause. The Court reasoned that even "conceding" that the offenses met one part of the residual clause because they pose a serious potential risk of physical injury to the victim," the offenses did not meet the other part of the test, namely the requirement that offenses be "roughly similar, in kind as well as risk posed" to burglary, arson, extortion and crimes involving the use of explosives. The Court noted that, unlike these enumerated offenses, Alabama second degree rape is a strict liability offense, which has no mens rea requirement, and for which consent is not a defense.
