Does Article I, Section 20 Exempt Persons Convicted of "Fourth Degree Rape" from Sex Offender Registration
by: Eblumenthal • January 2, 2014 • no comments
The legislature classifies degrees of sexual offenses by the age of the victim. State v. Ofodrinwa, 353 Or 507, 531, 300 P3d 154 (2013). For example, an adult commits third-degree rape by having intercourse with a person who is less than 16 years old. ORS 163.355(1). If the victim is less than 14 years old, that conduct constitutes second-degree rape. ORS 163.365(1). If the victim is less than 12 years old, it is first-degree rape. ORS 163.375(2). Second-degree and third-degree rape exclude situations in which the age difference between the victim and defendant is less than three years. ORS 163.345(1).
There is no degree of rape that applies to nonforcible intercourse between an adult and a minor over 16 years old. However, that conduct constitutes second-degree sexual abuse, ORS 163.425, because a minor is legally incapable of consent. ORS 163.315; Ofodrinwa, 353 Or at 532. Functionally, that theory of second-degree sexual abuse amounts to “fourth-degree rape.” It criminalizes an act of nonforcible intercourse between an adult and a minor. It is less serious than the other degrees of rape because the victim is older.
A person convicted of a “sex crime” must register as a sex offender when released from incarceration. ORS 181.595. “Sex crimes” include “rape in any degree” and “sexual abuse in any degree.” ORS 181.594(1)(a), (d). However, a person does not need to register if the person meets the eligibility requirements of ORS 181.830. ORS 181.832. ORS 181.830, in turn, exempts third-degree rape from sex offender registration requirements. ORS 181.830(1)(a)(A). It does not exempt second-degree sexual abuse (“fourth-degree rape”). It is inconsistent with Oregon’s classification of sex offenses to exempt offenders from registration when their victims are between 14 and 16 years old, but require registration when their victims are between 16 and 18 years old. The court recognized this principle in State v. Simonson, 243 Or App 535, 259 P3d 962 (2011). There, a defendant convicted of “fourth-degree rape” received a higher sentence than he would have had he been convicted of third-degree rape. The Simonson court held that that violated the proportional punishment provisions of Article I, section 16, of the Oregon Constitution because “fourth-degree rape” is less severe than third-degree rape. Id. at 541-42 (“[The] defendant's acts in committing sexual abuse in the second degree necessarily are less severe than the same acts would have been if defendant's victims had been younger, but the potential penalty for defendant's acts is greater than the potential penalty for the same acts against younger victims.”).
Because Simonson relied on the disproportionate punishment provision of Article I, section 16, it probably does not apply directly to sex offender registration requirements. See State v. McNabb, 334 Or 469, 51 P3d 1249 (2002) (holding that sex offender registration requirements did not constitute punishment for ex post facto purposes). Applying Simonson to sex offender registration requires a different constitutional vehicle.
Article I, section 20, provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” There are two types of claims under Article I, section 20. First, an individual may claim that a law in fact “grant[s] or den[ies] privileges or immunities to an individual person without legitimate reasons related to that person's individual situation.” State v. Clark, 291 Or 231, 243, 630 P2d 810 (1981); State v. Savastano, 354 Or 64, 96, 309 P3d 1083, 1102 (2013). Second, a member of a class may assert that a law denies privileges or immunities without “some rational relationship to some legitimate end.” Withers v. State, 163 Or App 298, 309, 987 P2d 1247 (1999). Both theories require a law to have a rational basis. Relief from registration is an immunity under Article I section 20. See In re Oberg, 21 Or 406, 408, 28 P 130 (1891) (holding that immunity from arrest was a basis for a claim under Article I, section 20). Sex offender registration requires an offender to report to law enforcement within 10 days of release from incarceration, a change of residence, the person’s birth date, or a change of employment or educational enrollment. ORS 181.595(3)(a). Failing to report is a crime. ORS 181.599. Law enforcement keeps records of the offender’s personal information and can make it available to the public. ORS 181.592. Therefore, relief from sex offender registration is an immunity from a substantial burden.
A person convicted of “fourth-degree rape” can make an individual claim under Article I, section 20, if the challenged statute “‘in fact denie[s] defendant individually * * * [an] equal privilege * * * with other citizens of the state similarly situated.’” Savastano, 354 Or at 96 (quoting Clark, 291 Or at 243). ORS 181.830 applies to all individuals: defendants who have had non-forcible sexual intercourse with minors over 14 years old. However, it treats them differently. ORS 181.830 does not require sex offender registration if the victim is under 16 years old and the defendant is convicted of third-degree rape. ORS 181.830 requires registration if the same offender (or one who had intercourse with an older victim) is convicted of second-degree sexual abuse.
A person convicted of fourth-degree rape may also attempt a class-based claim under Article I, section 20. A class is “defined in terms of characteristics that are shared apart from the challenged law or action.” Tanner v. Oregon Health Sciences Univ., 157 Or App 502, 520, 971 P2d 435 (1998). The type of class affects the standard by which a court reviews a law subject to challenge. Groups of people defined by life-defining, typically immutable characteristics such as race, sex, alienage, gender, religion, and sexual orientation are “suspect classes”. Id. at 522-24. Laws that apply unequally to suspect classes are “inherently suspect” and courts review such laws with strict scrutiny. Id.
Laws that affect a non-suspect class receive a lower level of scrutiny; they are constitutional if they have a rational basis. Tanner, 157 Or App at 523. Examples of non-suspect classes include residents of a geographic area, id. at 523; State v. Edmonson, 291 Or 251, 253-54, 630 P2d 822 (1981), or members of a profession, Aluminum Cooking Utensil Co. v. City of North Bend, 210 Or 412, 428, 311 P2d 464 (1957) (holding that city ordinance impermissibly distinguished between local and other salesmen); Monroe v. Withycombe, 84 Or 328, 337, 165 P 227 (1917) (holding that master fish warden impermissibly licensed one individual to take salmon from waters open to all citizens); White v. Holman, 44 Or 180, 74 P 933 (1904) (holding that if a law authorized agency to license sailors’ boarding houses in arbitrary manner, it would violate Article I, section 20).
Persons convicted of “fourth-degree rape” could be members of two non-suspect classes. First, they could be a class of people who have had sexual intercourse with minors between 14 and 18 years old. It would be a class identified by its members’ associations and sexual relationships. Cf. Tanner, 157 Or App at 522-23 (identifying sexual orientation as a protected suspect classification). It is independent of the sex offender registration statutory regime because it would be identifiable even if the registration regime did not exist. It would be a conduct-based class, similar to members of a profession.
A “fourth-degree rape” defendant may also belong to the non-suspect class of sex offenders. A “sex offender,” is a person who has been convicted of a “sex crime.” ORS 181.594(6). Although that class is created by statute, that statute is not “the challenged law or action” here. Tanner, 157 Or App at 520. A person is a “sex offender” under ORS 181.594 regardless of ORS 181.830. “Sex offender” is not only a legal classification. Sex offenders are alienated from the rest of the population by social norms and values as much as by law. Article I, section 20, would require a statute to treat all sex offenders alike unless there is a rational basis to treat them differently.
If a person convicted of “fourth-degree rape” can raise an Article I, section 20, claim, concluding that ORS 181.830 violates Article I, section 20, seems relatively straightforward. A law denying a privilege or immunity to a non-suspect class is constitutional if it has a “rational basis” or a rational explanation related to a legislative purpose. Gunn, 173 Or App at 103; Savastano, 354 Or at 96. As Simonson explained, there is no rational basis to treat offenders who had sexual intercourse with a minor between 16-18 years old more harshly than offenders who commit the same act against younger victims. 243 Or App at 541-42. The legislature intended to treat offenses against younger victims more severely than offenses committed against older victims. Ofodrinwa, 353 Or at 531. The purpose of the sex offender registration statutes was “to assist law enforcement agencies in preventing future sex offenses.” McNab, 334 Or at 479. In light of those purposes, there is no rational reason to require people who committed “fourth-degree rape” to register, but not people who committed third-degree rape. Withers, 163 Or App at 306 (explaining that a classification violated Article I, section 20, when it “has no rational foundation in light of the state's purpose”).
If a court concludes that ORS 181.830 violates Article I, section 20, it must fashion a remedy. Courts are “reluctant to adopt a policy of per se invalidation of statutes containing discriminatory classifications.” Hewitt v. SAIF, 294 Or 33, 53, 653 P2d 970 (1982). “Such a policy provides a disincentive for litigants to challenge objectionable statutes.” Id. Rather, when a statute has a generally permissible purpose but is underinclusive, this court fashions a remedy that best adheres to the legislature’s objective. Id.
The text of ORS 181.830 provides that the legislature sought to relieve less serious sex offenders from registration requirements when they met certain eligibility criteria. Among those less serious offenders were those who committed a sex crime solely on the basis that that the victim was older than 14 but not old enough to consent. That is a permissible purpose. It would work against that purpose to require otherwise eligible defendants convicted of “fourth-degree rape” to register. Accordingly, the proper remedy is to relieve a defendant convicted of fourth-degree rape from sex offender registration.
_______________________________________________________________________________
This article is adapted from a brief that I recently filed. It is awaiting the state’s response. If the reader would like more information about that case or this issue, please feel free to contact me directly.
Erik Blumenthal is a Deputy Defender at the Office of Public Defense Services. The opinions expressed in this article are those of the author and may not be reflective of the policies and positions of OPDS.
