A-5969809.
Decided by Central Office June 10, 1946.
Crime involving moral turpitude — Incest — Section 2455, vol. 4, Remington's Revised Statutes of Washington.
Where an alien marries his sister's daughter in a State which prohibits such marriage (sec. 8438, vol. 9, Remington's Revised Statutes of Washington) and is convicted of incest because of sexual intercourse with her (sec. 2455, vol. 4, Remington's Revised Statutes of Washington), such offense of "incest" does not involve moral turpitude.
CHARGE:
Warrant: Act of 1917 — Crime within 5 years: incest.
BEFORE THE CENTRAL OFFICE
Discussion: The respondent, age 42, native and citizen of Italy, was admitted to the United States in 1920 for permanent residence and has resided continuously in this country since such date. On January 5, 1927, he was ordered deported on the aforestated charge. Deportation was never effected since the respondent escaped from the State Prison of Washington and could not be located. In 1943 he was apprehended by this Service and released on his own recognizance until the cessation of hostilities. It was proposed to deport the alien in July 1945 on the S.S. Gripsholm. Habeas corpus proceedings were initiated in the United States District Court for the Northern District of Indiana at Hammond, Ind. It was agreed that if the application for a writ of habeas corpus were withdrawn, a motion to reopen the case would be entertained. On August 20, 1945, the Board of Immigration Appeals ordered the case reopened and withdrew the outstanding order and warrant of deportation. The reopened hearing has been forwarded for consideration.
The respondent identifies as relating to him exhibit 2, copy of the official records of the Superior Court of the State of Washington for Kittitas County. This shows that he was convicted upon a plea of guilty in 1925 of the crime of incest and sentenced to hard labor for a term of not less than 2 or more than 10 years. The information charged the respondent with having had sexual intercourse on or about April 24, 1925, with E---- L----; that they were uncle and niece of the whole blood and did know of this relationship. The respondent contends, and there is no evidence to the contrary, that he was married on April 24, 1925, to the said E---- L----, the daughter of his sister. The repondent's marriage was illegal and subjected him to criminal prosecution under the following laws of the State of Washington.
Remington's Revised Statutes of Washington, vol. 9, Section 8438: * * *
3. It shall be unlawful for any man to marry his father's sister, mother's sister, daughter, sister, son's daughter, daughter's daughter, brother's daughter, or sister's daughter, * * *
Remington's Revised Statutes of Washington, vol. 4, Section 2455:
Whenever any male and female persons nearer of kin to each other than second cousins, computing by rules of civil law, whether of the half or whole blood, shall have sexual intercourse together, both shall be guilty of incest and punished by imprisonment in the State Penitentiary for not more than 10 years.
The question is presented whether the offense of incest is turpitudinous where the parties to the crime were uncle and niece of the whole blood. In the Matter of S---- D----, 56091/473 (Aug. 12, 1943) it was concluded, without lengthy discussion, that the offense of incest where the respondent had carnal knowledge of his daughter did involve moral turpitude. Prior to this decision it was held that the offense of incest, where the parties were first cousins, was free from moral obloquy (See Matter of C----, A-5896873 (Aug. 29, 1941)). It was pointed out in the latter case that at common law and under civil law, incest involved only parties lineally related or related collaterally in the first degree, and that the extension of incest to first cousins was enacted through consideration of eugenics and not inherent morality. The subject case concerns a relationship one step closer to the common ancestor than in the C---- case ( supra).
There is no clear and defined rule for determining whether an offense involves moral turpitude. One test frequently utilized is whether the crime is mala prohibita or mala per se. Explanatory of this phrase is the statement found in 41 Corpus Juris 212: "Moral turpitude implies something immoral in itself regardless of the fact whether it is punishable by law. It must not be merely mala prohibita but the act itself must be inherently immoral. The doing of the act itself and not its prohibition by statute fixes the moral turpitude." The offense in question prohibits sexual intercourse between uncle and niece. Since such intercourse is the natural and inexorable result of the marital relationship, the most serious accusation which can be made against the respondent is that he married his niece.
At common law and in the absence of express statutory prohibition uncle and niece may contract a valid marriage voidable only at the institution of proceedings by a party thereto. 38 Corpus Juris 1292. In Russia and in Poland marriages of uncle and niece of the Hebrew race were regarded as valid. (See Devine v. Rodgers, 109 Fed. 886 (D.C. Pa. 1901); 37 Op. Atty. Gen. 102.) Such a marriage may also be validly contracted in Rhode Island (General Laws of Rhode Island, title XXXVI, ch. 415, subdivision 4). In Italy, the country of which the respondent is a national, uncle and niece may marry if the prohibition against such a marriage is waived by the king as provided in section 69, Civil Code of Italian Statutes (Italian law cited in Incuria v. Incuria, 155 Misc. 755, 240 N.Y. Supp. 716).
Hence it appears in some jurisdictions, including one State in this country, that the marriage of uncle and niece is permitted and valid. Statutory enactments rendering the same marriage void and criminal in other jurisdictions should not stigmatize such marriages as being inherently immoral. This position finds support in judicial and administrative decisions in certain naturalization cases. In the Petition of Lieberman, 50 Fed. Supp. 121, the petitioner, a resident of New York, married her uncle in 1920. They were remarried in 1942 by a rabbi in Rhode Island. To qualify for naturalization it was incumbent upon her to establish both a valid marriage and good moral character. Her petition was approved, the Court pointing out that the parties were married in good faith on the first occasion and that their second marriage was valid in Rhode Island. Since the inauguration of the review by the Central Office of questionable naturalization cases, several cases have been reviewed in which a similar question was presented ( In re L---- G----, C-5905500; In re N---- D---- P----, C-6612714, and In re S---- T----, C-6287379).
The petitioners in these cases were married to their uncles. This Service adopted the view that the marriage and cohabitation of the petitioners with their uncles did not preclude them from meeting the character qualification for naturalization, their marriages being valid where consummated and not void in the jurisdiction of their residence. These petitions were filed in the United States District Courts for the Eastern District of New York and the Southern District. Such Courts were fully informed of the facts in each case and approved the recommendation of this Service that the petitions be granted.
The only reasonable and logical conclusion that can be drawn from the foregoing is that the marriage of the respondent, although prohibited and made criminal by the State of Washington, was not basically contrary and repugnant to moral standards of this country. Accordingly, it is held that the crime for which the respondent was convicted did not involve moral turpitude. The warrant of arrest will be canceled.
Order: It is ordered that the warrant of arrest be canceled.