Interim Decision 401498
MATTER or Mumtaz
In Deportation Proceedings
A.-7908074
Decided by Board July 28, 1965
Conviction of lewd and lascivious conduct (by public and indecent exposure)
in violation of section 944.20(2) of the Wisconsin Statutes not conviction
of a crime involving moral tnrpiture.
CHARGE:
Order: Act of 1852—Section 241(a) (4) (8 U.S.C. 1251(a) (4).1--Convicted
after entry for two crimes involving moral turpitude, not arising out of a single scheme of criminal
misconduct, to lewd and lascivious conduct,
' committed On live .occasions.
This case Comes forward •on appeal by the trial attorney from
the order of the special inquiry officer entered May•19, 1965 ordering that proceedings be terminated..
The record relates to a native and citizen of Germany, 84 years
old, male, divorced, who last entered the United States at New
York, New York on or about December 6, 1950 for peimanent residence. The respondent admittad,..and the evidence establishes that
the respondent was convicted on August 30) 1959, September 17,
1959, October 9, 1959, May 11, 1964, and July. 24, 1964 for the offense of lewd and lascivious conduct by unlawfully, publicly and
indecently exposing his sex organ in violation of section 944.20(2)
of the Wisconsin Statutes which provides as follows:
.whoeirer does any of the folloiving may be lined not more than $500 or imprisoned -not more than one year in the_ county jail or both: '
. (1) Com mi ts an indecent act of sexual gratification—with another with knowledge that they are in the presence of others; or
(2) 'Publicly and• indecently exposes a sex organ; or
(8) Openly cohabits and associates with a person he knows is not his
spouse. under circumstances that imply sexual intercourse.
' The respondent admitted that these offenses did not arise out of a
pines scheme of criminal misconduct.
268
Interim Decision #1493
Section 939.23, Wisconsin Statutes, provides that when criminal
intent is an element of a crime in the Criminal Code, such intent
is indicated by the term "intentionally", the phrase "with intent
to," the phrase "with intent that," or some form of the verbs
"know" or "believe". Paragraph (2) of section 944.20, Wisconsin
Statutes, does not contain any of these words or phrases.
Most statutory crimes require criminal intent. But because of
the complicated nature of modern society, the legislatures of the
states have found it necessary in order to protect the public safety
and welfare, to pass laws which make the mere performances of
certain prohibited acts, or the failure to perform other commanded
acts, unlawful, regardless of the actor's intention. The acts defined
as public welfare offenses are usually not makum in, as but are
wrong merely because they are prohibited by statute'
The term "moral turpitude" within the deportation statute is an
act of baseness, vileness, or depravity in the private and social
duties owing to fellow men, or society in general, contrary to accepted and customary rules.' Moral turpitude is dependent upon
the depraved or vicious motive of the alien. It is in the intent that
moral turpitude inheres.' A crime, committed without contemplating death, without malice, and without intent, and ordinarily committed while engaged in a lawful act but committed through carelessness or because of the absence of due caution or circumspection
does not include an evil intent and therefore does not invoke
moral turpitude.4
The crime under consideration, section 942.20(2), Wisconsin
Statutes, does not require a specific intent and it does not appear
that it is essential that the defendant have a vicious motive or corrupt mind. All that appears to be necessary for conviction under
the statute is that the act be done consciously. There is nothing in
the complaint indicating the circumstances under which the indecent exposure was made. The special inquiry officer has stated that
a person who does the forbidden act through physical necessity
could be convicted under the statute, even though he had no lewd
or lascivious intent.
The trial attorney suggests that section 939.47, Wisconsin Statutes, which provides that the presence of the natural physical
forces which causes the actor reasonably to believe his act is the
Sloane, W.J. 26 Marquette Law Review 92 (1942).
27A. Words and Phrases 192.
25renth71/ Review. L a N. 8sruiee, Crimes Involving Moral Turpitude, p. 5
(march 1944) ; eo red Meyer v. Day, 54 P.25 335 (2nd Gin) 1931.
'Mongiovi v. Harnuth, 80 F.2d 825 (W.D.N.Y. 1929).
269
Interim Decision #1493
only means of pfeventing imminent- public disaster or imminent
death or great bodily harm to himself, or another and which causes
him. so to act, is a defense to prosecution for nny crime based upon
that act. It is believed that the trial attorney's application of this
Elation to the crime is' erroneous and that the section in question ,
refers to emergency or reflex. actions to counteract or avoid the
events set forth in that section.
It is not believed that the specification in the Wisconsin Statute
of the particular organ is a significant departure from other statutes which' d6 not- so' specify, inasmuch as generally the wives
parts or organs are Involved. The attempt to distinguish this case
from Matter of H , 7 I. & N. Dec. 301, which involved a knowing
—
open or indecent exposure of the person, appears to be a distinction
without a difference. 5
The statute in question, section 944.20(2), Wisconsin 'Statutes,
does not require a specific intent, a criminal intent or any intent
whatsoever. The mere perforinanee of the act is prohibited and
made unlawful iegarAlless 'of the actor's intention. A person may
be convicted under the statute even though' the act was done carelessly, or with absence of due caution or circumspection: The offense is not one which is nuguut in, se. It is concluded that the offense involved herein. does' 'not hivolve moral turpitude' . The-appeal of the trial attorney will be dismiSted and the order of the
special inquiry officer will be affirmed.
ORDER:.It is ordered that the aipeal of the trial attorney be
and the same is hereby dismissed.
It is further ordered - that the order of the special inquiry officer
entered May 19, 1965 that the proceedings be terminated be and the
seine is hereby affirmed.
'Of Matter of P—, 2 L & N. Dec. 117; Matter of 8 L & N. Dee. 272, p.
274, where a differentiation was made between an act merely accompanied by
negligence or carelessness and one done maliciously and wantonly.
270
