Oregon’s sex-crime laws, which appear with other “person” crimes in Chapter 163 of the Oregon Revised Statutes are a bewildering mess. In addition to rape and sodomy (sex without consent) there is sexual abuse (sexual touching without consent) unlawful sexual penetration (just what it sounds like) child-pornography offenses, and contributing to the sexual delinquency of a minor.
Some of those offenses make sense as they are. Rape and sodomy are of varying degrees of seriousness depending on the victim’s age and whether there was force, but they create an effective age of consent of 16, and it is a defense if the defendant is less than three years older than the victim. So, if a 15-year old and a 13-year-old have sex, and the 13-year-old is willing, it’s not rape.
The 13-year-old never technically ‘consents,’ because someone younger than 18 lacks the legal ability to consent to sexual activity. I have no idea whether a 17-year-old can legally consent to anything; it’s not really addressed in the statutes, and no reported case that I know of has considered whether, for example, a 17-year-old is legally able to consent to the violence that occurs during a high-school football game.
The age of consent isn’t really 16, though; it’s 18. Sex with a 17-year old by someone older than 20 is sexual abuse. That statute still has the three-year age-difference requirement. But sex between a 17-year-old, with a birthday next week, and a 18-year-old, with a birthday next week, is contributing to the sexual delinquency of a minor, ORS 163.435. That is a sex crime carrying lifetime sex-offense registration, and it is surely committed every day by ordinary high-school kids. Also, since the participants in such an act are also able to observe it, the 18-year-old is guilty of the Class A felony of using a child in a display of sexually explicit conduct, ORS 163.670; See State v. Tyson, 243 Or App 94, 96, 259 P3d 64 (2011).
That is outrageous. The harm is mitigated because the 18-year-old is unlikely to be prosecuted; Tyson involved a much worse set of facts, although that doesn’t change the legal principle. But I have had a substantial number of clients who were prosecuted for whatever the prosecutor could find, because the prosecutor believed, but couldn’t prove, that my client was a bad person. In some cases the prosecutor was right, I suppose, but in some the prosecutor was wrong, and the statute really is on the books, letting the prosecutor make that choice.
The Oregon Supreme Court had an opportunity recently to clear up part of this mess. The sex-offense statutes suggest a difference between a factual lack of consent, as in the case of a violent rape, and a legal lack of consent, by someone underage but otherwise willing. In State v. Ofodrinwa, the defendant, who was 21, was accused of sexual abuse in the second degree for having sex with his 16-year-old girlfriend. That was surely rape in the third degree, a class-C felony, which is based on the victim’s age. The question was whether the same conduct was also the more serious sexual abuse in the second degree, a Class B felony, based on the victim’s lack of consent. Last week, in holding that it was, the Supreme Court left in place a weird dichotomy, where the prosecutor can simply decide which offense to charge, and the defendant is at risk of a much more serious crime for the exact same conduct.
I think the Supreme Court got it wrong in Ofodrinwa, but the statutes are such a mess that it’s a close question. The real solution is with the legislature; the statutes need to be changed. Of course, sex with someone who does not consent should remain a crime. But a 16- or 17-year-old should be permitted to consent to sexual contact, if he or she wishes to do so, and that means that the willing 16-year-old’s partner should not be at risk of criminal prosecution. The legislature should drop the silly legal fiction that a 16-year-old, who could go whitewater rafting, drive a car, or engage in other risky activities, is not permitted to decide to have sex.
