Discretion is the better part of power
by: • October 3, 2013 • no comments
I'm writing this to address the larger trend in the 2013 Oregon Supreme Court criminal law opinions. Almost without exception, whether the Court is addressing a constitutional provision or a statute, the end result is the same. More discretion for the prosecutor. And discretion, in these cases, means more power.
Let's start with State v. Ofodrinwa. In that case, the issue was whether the phrase "does not consent" in the crime of sexual abuse in the second degree was intended to encompass a situation where the minor cannot consent because he or she is a minor. According to the state, while the "complainant" might have agreed, sought or desired sexual intercourse, her actual desires were irrelevant if she was, say, 17 years old.
The problem is, by interpreting the statute this way, it created a number of side effects that don't make much sex. First, there is the fact that we already have a statute explicitly criminalizing sex with a 17 year old, contributing to the delinquency of a minor, and that offense is a misdemeanor. So to adopt the state's argument -- and the Court's -- we'd have to believe the legislature intended to give the prosecution a choice, but they'd done so by explicitly and plainly making the crime a misdemeanor or ambiguously and in a roundabout way making it a felony.
Relatedly, if convicted of sex abuse II -- for having sex with a 17 year old -- the defendant would always have to register as a sex offender. But if convicted of rape III, for having sex with a 14 or 15 year old, there are exceptions where the defendant might not have to register as a sex offender.
Even without deciding, the Court's opinion leans towards concluding that when the law was passed, "does not consent" did not encompass incapacity to consent due to age. There were a number of reasons given: this is just one.
- Additionally, if the state’s interpretation of the 1983 amendment were correct, then that amendment would prohibit the same conduct (sexual intercourse with a person under 18 years of age) that the crime of contributing to the sexual delinquency of a minor did, but the two crimes would impose different penalties.
- To be sure, nothing prevents the legislature from enacting duplicative or overlapping statutes, but we ordinarily hesitate to attribute that intent to the legislature. At a minimum, that context causes us to question whether the 1983 legislature departed from the understanding of “does not consent” expressed in the 1971 Criminal Code and adopted instead the meaning of “does not consent” suggested by the text of the 1979 amendment to second-degree sexual abuse. [Emphasis added.]
But, the Court concluded, the legislature implicitly amended the statute when it included sex abuse II among a statute for which an age-based defense would apply. Such inclusion only makes sense if sex abuse II did criminalize purely age-based prosecutions.
