A Shameful Day for the Court of Appeals . . . and Oregon
Update 6/15/11: For a very important opinion on Sex Abuse II sentencing, see St v Simonson.
Stamper is about sexual abuse in the second degree, which criminalizes sexual intercourse when there is no consent. What Stamper did was interpret the lack of consent required by the statute to encompass the inability to legally consent due to age. Therefore, otherwise consensual sex between a 17 year old and a 20 year (which previously would have been no worse than the misdemeanor crime of Contributing to the Sexual Delinquency of a Minor) is now a felony Sexual Abuse in the Second Degree. On its face, that doesn’t seem like an unreasonable conclusion.
But go beneath the surface rationale, and it’s obvious that there are a number of reasons Stamper is not only wrong but absurd.
The issue is one of legislative intent. Did the legislature intend to make otherwise consensual sex with someone under 18 a felony sex abuse II, and to do so in a somewhat indirect way, when it already had explicit, unambiguous statutes that either made it a misdemeanor (Contributing to the Delinquency of a Minor, if the victim was 16 or 17) or a felony (Rape in the 3rd Degree if the victim was 14 or 15)?
The evidence that the legislature did not so intend is quite obvious. Sure, there is the redundancy of having two statutes criminalize sex with a 17 year old (one a felony, one a misdemeanor; one obliquely, one directly). That’s telling, but perhaps not dispositive.
More importantly, sex abuse II is a crime seriousness 7 on the grid, rape III a 6. So to find that Stamper was correct, you would have to assume that the legislature intended sex with someone under 18 to be worthy of greater punishment than sex with someone under 16. So, yes, it’s better to be charged in Oregon with rape III for having otherwise consensual sex with a 14 year old than sex abuse II for having otherwise consensual sex with a 17 year old. How many legislators in the history of Oregon would have intended that result?
Further, an 18 year old defendant – because he is within 5 years of age – who has intercourse with a 14 year old does not have to register as a sex offender, if convicted of Rape III. But a 20 year old would have to register as a sex offender if convicted of Sex Abuse II with a 17 year old.
(Keep in mind that in most states, as well as Canada, the age of consent is 16 so sex with a 17 year is not only not a felony, it’s not even criminal.)
Admittedly, the author of Stamper – then-Judge Landau — admitted within the opinion that it was a close call. It’s obvious from the opinion he struggled with reaching the right result. Further, it does not appear the absurdity of the harsher punishment for sex abuse II than rape III — or the more severe sex offender registration consequences — ever made it onto the Court’s radar.
Still, it produced the absurd results mentioned above, and the magnitude of that absurdity carries with it legal heft, or it should. Maxims of statutory construction include the principle that ambiguities in statutory language should be construed in such a way as to avoid “an absurd result that is inconsistent with the apparent policy of the legislation as a whole.” State v. O’Donnell, 192 Or App 234, 251, 85 P3d 323 (2004) (quoting State v. Vasquez-Rubio, 323 Or 275, 283, 917 P2d 494 (1996)).
A few years later, this year in fact, the Court was given the opportunity to correct his absurdity in a case called St v. Ofodrinwa. Mr. Ofodrinwa was 21 at the time of the crime, his girlfriend 16. If they had intercourse, regardless of the correctness of Stamper, Mr. Ofodrinwa was guilty of misdemeanor contributing to the delinquency of a minor, a sex crime but with relatively minimal consequences compared to a felony conviction for having sex with someone “without consent.” But at trial, he was convicted of sexual abuse II, because the trial court — bound by the higher court — relied on the opinion in Stamper.
He appealed, and his appellate attorney — the exceptionally talented Mary Reese — raised two issues: one, whether Stamper was decided correctly, and two, whether there was enough evidence to support the confession of Mr. Ofodrinwa, since the “victim” did not testify at trial.
The Court of Appeals spent most of its opinion determining that there was sufficient corroboration for Mr. Ofodrinwa’s confession.
As for whether Stamper was good law, this is all the opinion — authored by Judge Haselton — said: “We reject defendant’s second assignment of error without discussion, see State v. Stamper, 197 Or App 413, 106 P3d 172, rev den, 339 Or 230 (2005), and write to address only his first assignment.”
In other words, the court felt no need to address that fact that — because of Stamper – sex with someone under 18 is punished more severely than sex with someone under 16. It had an opportunity to correct one of the worst absurdities in the history of modern jurisprudence. It had a chance to undo the damage done to people like Mr. Ofodinwa and others like him that flows not from the legislature — which could never have intended a result of such gross stupidity — but from the COA’s unwillingness to fix its obvious error. Stare decisis does not compel this result.
Instead, the Court swatted the issue away without discussion, because no reasonable person could actually address the issue on its merits and justify the ridiculousness of upholding Stamper in light of what we now know, which, in fairness to Judge Landau, the Court was probably not aware of when Stamper was issued.
This is a shameful day for the Court of Appeals and Oregon.