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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 19-BG-276

                     IN RE JUSTIN ALAN TORRES, RESPONDENT.

                          A Suspended Member of the Bar
                    of the District of Columbia Court of Appeals
                           (Bar Registration No. 1003136)

                          On Report and Recommendation
                    of the Board on Professional Responsibility

                                   (DDN 037-19)

                           (Decided December 12 2019)

      Before THOMPSON and EASTERLY, Associate Judges, and STEADMAN*, Senior
Judge.

      PER CURIAM:        The Board on Professional Responsibility, by majority

decision, recommends that respondent Justin Alan Torres be disbarred from the

practice of law after he pled guilty to multiple felony counts of gross sexual

imposition. This recommendation is based on the Board’s determination that the

crime of gross sexual imposition, in violation of Ohio Revised Code § 2907.05(A)(1)

(criminalizing sexual contact with a child under the age of thirteen without requiring

proof that the defendant knew the exact age of the child), is a crime of moral

turpitude per se within the meaning of D.C. Code § 11-2503(a). Neither respondent
                                           2


nor Disciplinary Counsel filed exceptions to the Board’s report. Respondent filed

his D.C. Bar R. XI § 14(g) affidavit on June 27, 2019.


      Under D.C. Bar R. XI, § 9(h)(2), “if no exceptions are filed to the Board’s

report, the [c]ourt will enter an order imposing the discipline recommended by the

Board upon the expiration of the time permitted for filing exceptions.” See also In

re Viehe, 762 A.2d 542, 543 (D.C. 2000) (“When . . . there are no exceptions to the

Board’s report and recommendation, our deferential standard of review becomes

even more deferential.”). However, because this matter concerns a statute not yet

addressed by this court, and in light of the minority opinion dissenting from the

Board’s decision, we explain here why we adopt the Board’s recommendation.


      After the court received notice of respondent’s conviction, respondent was

suspended and, pursuant to D.C. Code § 11-2503(a), the matter was referred to the

Board to determine whether the offense constituted moral turpitude. Disciplinary

Counsel filed his statement that the crime did constitute moral turpitude per se.

Respondent did not file a statement. The Board then directed Disciplinary Counsel

to file a supplemental statement addressing the Ohio statute’s strict liability standard

for criminal culpability and referenced a 1986 Board recommendation, later

accepted by the court in In re Lovendusky, D.C. App. No. 84-1672 (D.C. Apr. 4,

1986). In that case the Board recommended that a conviction under a statute
                                          3


prohibiting attempted sexual contact with a child under the age of sixteen years, the

age of consent, was not a crime of moral turpitude because there was a reasonable

possibility that the contact could have been the result of a mistake regarding the age

of the victim. Disciplinary Counsel filed a supplemental response stating that In re

Lovendusky did not change his recommendation because, unlike the statute in that

case, the Ohio statute criminalizes sexual contact with a child twelve years or

younger, and because that period of a child’s development forecloses the argument

of reasonable mistake, such that respondent would or should have known he was

having sexual contact with an individual who was unable to provide consent.

Respondent filed a response urging the Board not to find his offenses crimes of moral

turpitude. As noted previously, the majority of the Board recommended disbarment

based on a determination that the Ohio offense in question constitutes a crime of

moral turpitude per se.


      In analyzing whether an offense constitutes a crime of moral turpitude per se

we look at the elements of the crime, not the specific facts of the individual case,

and consider whether the least culpable offender engaged in a crime of moral

turpitude. See, e.g., In re Shorter, 570 A.2d 760, 765 (D.C. 1990); accord In re

Rohde, 191 A.3d 1124, 111 (D.C. 2018) (explaining that to amount to a crime of

moral turpitude per se, “the statute, in all applications, [must] criminalize[] conduct

that “offends the generally accepted moral code of mankind,” “involve[] baseness,
                                           4


vileness or depravity,” or offend[] universal notions of “justice, honesty, or

morality.”).


      Here, similar to the statute in In re Sharp, 672 A.2d 899 (D.C. 1996)

(imposing strict liability where the adult perpetrator was in a custodial or supervisory

relationship with the child victim), the Ohio statute criminalizes sexual contact with

a child at least four years younger than the age of consent. We agree with the Board

that this age gap forecloses any claims that the offender could reasonably but

mistakenly believe the child was old enough to give legal consent. We further

determine that this criminal sexual contact meets our criterion of “offending the

generally moral code” of our society. In re Colson, 412 A.2d 1160, 1168 (D.C.1979)

(en banc). We thus see no reason to reject the Board’s categorization of the Ohio

offense. Because respondent has been convicted of a crime of moral turpitude per

se, the appropriate sanction is to disbar him from the practice of law. See id. at 1165.


      Accordingly, it is


      ORDERED that Justin Alan Torres is hereby disbarred from the practice of

law, nunc pro tunc to June 27, 2019.




                                               So ordered.
                                         5




      *In the absence of any exception filed by respondent in this court to the

Board’s recommendation, Judge Steadman would without more impose disbarment

as effectively unchallenged by respondent at this point. C.f. D.C. Bar. R. XI, §

9(h)(2) (“[I]f no exception is filed to the Board’s report, the [c]ourt will enter an

order imposing the discipline recommended by the Board”); In re Goldsborough,

654 A.2d 1285, 1287 (D.C. 1995) (imposing recommended discipline while

declining to resolve “some difficult questions raised in the Board’s [report]” where

respondent took no part in the proceedings).
