Sexual Abuse II: Possibility of Good News from the Oregon Supreme Court

Sexual abuse in the second degree criminalizes sex in which the victim didn’t consent, but there’s usually no force or mental incapacity, which would implicate more serious crimes.  I have previously written about the fact that the crime of Sexual Abuse II, when based solely on the age of the victim, creates all sorts of problems.  It creates a felony where there was previously only a misdemeanor (e.g., contributing to the sexual delinquency of a minor), it makes lifetime registration inevitable even for defendants who might not have to register for a comparable — or even more serious — Rape III conviction, and until State v. Simonson, it made sex with a 17 year old subject to a greater punishment than sex with a 14 year old.

The good news is that the Oregon Supreme Court has granted review of State v. Ofodrinwa, which involved a single conviction for sexual abuse II.  One of the questions presented addresses specifically whether an underage victim — 17 in Oregon — is enough to prove lack of consent for this particular offense.

Or as the press release put it:

(1) Does ORS 163.425, which defines the crime of sexual abuse in the
second degree, require proof of actual lack of consent, or is proof of an incapacity to
consent sufficient under the statute because the victim was under the age of 18?

I have been complaining about this issue for years now.  I think there is every reason to be optimistic.   But until we win at the Supreme Court, it’s a great time to play hardball in negotiations.  If the state won’t dismiss the SA II, take it trial.  It may take a couple of years, but you could save your client from having any sex offense conviction at all.