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Advice from the Oregon Legislature: If you absolutely have to have sex with a minor, then. . . .

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by: Ryan • February 18, 2013 • no comments

Here's some advice from the Oregon Legislature. Sex with minors is illegal, so don't do it. But if you're going to do it anyway, then it's better (legally) to have sex with a 14 year old than a 17 year old.

Is that really what the Oregon legislature is advising? Well, that's what the Oregon Supreme Court is trying to decide.

Penalties -- jail, fines, etc. -- are designed to discourage certain activities: drunk driving, theft, murder. The greater the penalty, the greater the discouragement, which is why you're hearing about legislative attempts to increase the penalties for drunk driving.

It just so happens that, in Oregon, the punishment for sex with a 17 year old can be greater than the punishment for sex with a 14 year old. Sounds to me like the legislature is basically saying, "hey, we don't want you to have any sex with minors, but better a 14 year old, where the consequences are less severe."

In Oregon, it used to not be this way. Sex with someone 16 or 17 would result in a charge of Contributing to the Delinquency of a Minor, a misdemeanor, and if the defendant was within 5 years of the "victim," he might not have to register as a sex offender.

Sex with someone 14 or 15 was a felony, Rape in the 3rd degree. And here too, if the defendant was within 5 years of the victim, he might not have to register.

But a few years ago, the Oregon Court of Appeals threw another statute into the mix. Sex abuse in the 2nd Degree was defined as sex with someone who didn't consent. It was different than forcible rape: no one was accusing someone who committed sex abuse 2 of using force. But they didn't have permission in, perhaps, a date-rape type situation. Didn't matter how old the victim was. If no consent, but no force, then it was sex abuse II.

However, in a case out of Washington County called State v Stamper, the Oregon Court of Appeals held that sex abuse II didn't just apply to cases where the victim didn't consent. It applied to cases where the victim couldn't legally consent due to age, like a 17 year old. Sure, sex with a 17 year old was already criminalized, but now it was a felony. Moreover, it was a felony that -- based on crime seriousness levels, which help determine prison time -- was punished more severely than sex with a 14 year old, and under no circumstances could someone convicted of sex abuse 2 ever NOT register.

Therefore, a 20 year old who has sex with a 17 year old (if over 3 years difference, even just 3 years and a day) is guilty of registerable sex felony, and he faces more time in custody than a 19 year old who is charged with rape III for having sex with a 14. Moreover, if less than 5 years between the 19 year old and the 14 year old (even if just a day), the 19 year old might not have to register as a sex offender.

None of this is in dispute. One thing that did happen is that years later, the Court of Appeals held that making the crime seriousness of Sex Abuse II a level 7 when sex with a 14 year old was only a 6 was a violation of the constitutional guarantee against disproportionality (Article I, section 16). The state is appealing that ruling to the Oregon Supreme Court, which has put the issue on abeyance while it decides St v. Ofodrinwa.

State v. Ofodrinwa is a case in which the defendant argues that Stamper was wrong. In other words, the defendant in Ofodrinwa is arguing that the Oregon legislature never intended to make the punishment for sex with a 17 year old more serious than sex with a 14 year old. It never intended to make sex with a 17 year old a registerable offense (regardless of the circumstances) when sex with a 14 year old might not be. In other words, it never intended to discourage sex with 17 year olds more than it discouraged sex with 14 year olds.

The state takes the position, I guess, that yes, the legislature intended all those things.

St v Ofodrinwa was argued to the Oregon Supreme Court in January, 2012. It is still under advisement. We will know soon what the Oregon Supreme Court really thinks the Oregon legislature intended.