Forgotten Favorites: So, What is the New Gridblock for Sex Abuse II?
It's been at least one post each day this week on issues involving the law and teenage sex.
Here, I'm revisiting a post I did after State v. Simonson came out. That case, as you'll recall, found that assigning Sex Abuse II (when based solely on age) the CSL of 7 violated the proportionality prohibitions of the Oregon Constitution, since Rape III -- what most people would consider a more serious crime, since the victim must be under 16 -- is only a CSL 6.
Since it's no longer a 7, I argued What is the Crime Seriousness Level of Sex Abuse II after Simonson? that it is unranked and therefore it's a Blakely question what level it is.
The COA has rejected the Blakely analysis in a conspiracy case. This is a situation where I feel quite comfortable in saying the COA was wrong, but so it goes. I'd keep raising it until the OSC weighs in.
Regardless, the CSL would still be unranked. Prosecutors tend to assume it's a CSL 6, since that would eliminate the proportionality problem. But if it's unranked, and it's not a Blakely issue, then it's the judge's call what it is. And I don't know that a judge necessarily has to be consistent. A 40 year old and a 17 year old might, arguably, deserve a higher rank than a 21 year old and a 17 year old. But even that depends on a judgment that would be ridiculous in most any other state, where 17 or even 16 is an age where you get to make those decisions for yourself.
Anyway, I would not assume it's a 6. As a lesser-included of Rape III, then it shouldn't be the same CSL logically. Most lesser-included offenses are two or more CSLs less than the greater offense, so I'd argue worst case scenario the charge should be treated as a CSL 4. And that can mean a couple of convictions before the defendant is looking at a presumptive prison sentence. And maybe you can get the judge to go lower, if there are sufficient mitigating factors.
And, of course, whatever the judge does decide, you'll want to ask for findings on the record.