A US Legal Concept Of Morality
"An elusive concept incapable of precise general definition." - US Supreme Court
"Turpitude began to sound as though it were drawn from the word 'turbid.'" - Kevin Weedon
About six years ago, I was sitting with Christine in an office at the Immigration and Naturalization Service, having completed seeming reams of paperwork, and produced about three pounds of supporting documentation and photographs. The (very friendly) agent asked us a few basic and simple questions ("Are you now, or have you ever been a member of the Communist Party?") and quizzed us about drug offences and our entwined finances, all the while making little notes in the paperwork. After a few of these, he looked up and asked me "Have you ever committed an act of moral turpitude?" I shook my head in answer, and replied, "I'm not quite sure that I know what an act of moral turpitude is." He turned to gesture behind him at a shelf of brown-bound books that had that legal air about them. "Just say no", he said. So I did.
The process of applying for a Green Card is complex, to say the least. There's a five-page application form and several pages of explanation. Whilst the form itself does not mention the phrase, many other documents supporting the application do. The funny thing we noticed as we were completing the forms is that nowhere in the vast amount of paperwork we'd received was there a definition of what it meant.
We even asked our lawyer, the chap who prepared my case for Change of Immigration Status. He placed his elbow carefully on his desk, placed his chin thoughtfully in his palm and paused. "Basically, it is anything that the average American would consider morally repugnant". I remember thinking about the average American, and considered the Moral Majority, the Evangelical Christians, all those Southern Baptists. My conclusion was "I'm screwed!" You see, I have done many things that these groups would consider morally repugnant. Sex before marriage, smoking, drinking, adultery, sodomy, oral sex, lying with men as with women...here was a list that would lead with dread inevitability to my ouster, were I to admit to them.
"...inherent baseness and wickedness...from the Latin turpis (foul, depraved)..."
"...moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general."¹
It turns out that he'd left out one phrase. Criminal intent. It turns out that simply being immoral was, not ipso facto enough to classify the act as turpitude - there had to be an element of law-breaking to it as well. This clarified the matter enormously and meant that no matter what my sins and no matter how many, unless they were actually illegal, I was fine.
It turns out that the books the INS agent had indicated were a detailed list of crimes and precedent that clarified (to some extent) exactly what was involved, and as it happens, the simplified list is not that long, at a mere twenty-six pages.² In hindsight, this should have been clear to me at the time. There are degrees of criminality and morality behind the phrase. To quote a State Department handbook outlining valid reasons for denying a visa:
"The most common elements involving moral turpitude are:
- Larceny and
- Intent to harm persons or things."
Crimes such as murder, rape, blackmail, sexual crimes against children, all these qualify, but bouncing a cheque and juvenile delinquency do not. Disrespect of law and order, and acts against Government authority are treated more harshly than causing property damage without intent. All this is much clearer, but still not quite clear enough, apparently.
"Just say no" was the best thing ever said to me on this topic - many cases every year go to appeal because there are still weeny patches of grey in between the apparent black-and-white of the law. Proof of "Evil Intent" is sometimes required to establish moral turpitude, and our lawyer even cited a case in which the INS wanted to deport someone for a speeding ticket, trying to prove that it was done with intent. Little wonder, then, that jurists complain of the muddiness of the definition and the difficulty involved in breaking through to legal and just clarity.
In Conclusion, Ladies and Gentlemen of the Jury...
Well, I passed the test. I have not ever been a member of the Communist Party of any country. I have never inhaled. I do not have a criminal record (although I did once have a pretty awful Elton John album). I've never committed any sexual crime or robbery. I'm even a bloody good driver.
The INS are not looking for moral perfection, which is just as well. My fears of being deported because I once snogged another man, are gone. Seven years a resident, and next thing will be applying for citizenship, when I will doubtless be asked the same question. This time, I will Just Say No.
² State Department list