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Proportionality Clause and Sex Abuse II Based on Age

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by: Ryan Scott • August 2, 2023 • no comments

Article I, section 16, of the Oregon Constitution states:

Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.

Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior?

The Supreme Court touched on this in State v. Pirkey, 203 Or. 697 (1955), overruled on other grounds, Klamath Falls v. Winters, 289 Or. 747 (1955), which noted:

The statute in question here defines and prohibits a specific act and provides punishment therefor, but there is no semblance of a classification which would enable one to ascertain under what circumstances he may be guilty of a felonious crime, or under what circumstances he may be guilty only of a misdemeanor. So far as the statute is concerned, the same identical act, under the same circumstances, may constitute a felonious crime when committed by one person, and a misdemeanor when committed by another. It might be said that this statute classifies punishments, but does not classify the circumstances to which the diverse punishments are to be applied. This is not legal classification. It is legal chaos. The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *" Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.

Id. at 704-705. [Emphasis added.]

Which brings us to Sexual Abuse in the Second Degree.

ORS 163.425(1)(a) provides that a person commits the crime of Sexual Abuse II when that person subjects another person to sexual intercourse (including oral and anal) and the other person “does not consent thereto.” Although it is classified as a level 7 on the sentencing grid, under Oregon case law, a conviction for a violation of 163.425(1)(a) when based on age cannot be ranked any higher than a Category 6. See ORS 163.315(1)(a); State v Simonson, 243 Or App 535, 541-42 (2011) (Article I, § 16 violated by imposing a crime seriousness score of 7 for Sexual Abuse II in the case of incapacity due to age when the more serious crime of Rape III has a lower crime seriousness score of 6); State v Burge, 252 Or App 574, 575-76 (2012) (same).

Assume that Mr. Smith and Ms. Jones engaged in mutual, factually consensual sexual acts. The state alleges that those acts are prohibited by 163.425(1)(a) and that, because Ms. Jones was 16 at the time of at least some of the sexual acts, she was legally incapable of consent under 163.315(1)(a). Therefore, the state has charged Mr. Smith with multiple counts of Sexual Abuse II.

Intercourse with a 16 year old is also prohibited by another statute, Contributing to the Sexual Delinquency of a Minor (ORS 163.435), a misdemeanor. While Sexual Abuse II prohibits sex with a 16 year old in a somewhat roundabout way (See State v Ofodrinwa, 353 Or 507 (2013), for the legislative history), Contributing is more direct: it specifically prohibits, in relevant part, a male from “engag[ing] in sexual intercourse with a female under 18 years of age.” ORS 163.315.

Article I, section 16, of the Oregon Constitution requires that “all penalties shall be proportioned to the offense.” An “offense,” for the purpose of the proportionality analysis, “is the specific defendant’s particular conduct toward the victim that constituted the crime, as well as the general definition of the crime in the statute.” State v Rodriguez/Buck, 347 Or 46, 62 (2009). The principle of vertical proportionality recognizes that “a greater or more severe penalty should be imposed for a greater or more severe offense, and conversely that a less severe penalty should be imposed for a less severe offense.” Id., Simonson, 243 Or App at 541 (emphasis supplied).

The Simonson Court determined that a violation of ORS 163.425(1)(a) could not be ranked at a Crime Seriousness Scale higher than a level 6 because to do so would violate the vertical proportionality prong of Article I, § 16 of the Oregon Constitution. In asking the Simonson Court to hold that the trial court should have imposed a less severe penalty, the defendant compared the acts alleged in Simonson [violation of 163.425(1)(a)] with the acts involved in Rape III (Criminal History Scale 6) and asserted that the Crime of Sexual Abuse II could not be ranked higher than a level 6 when compared to Rape III. However, the Simonson Court was not presented with, nor did it rule upon, the question of whether or not a violation of 163.425(1)(a) must be ranked lower than a Category 6 . The defendant in Simonson did not argue, and the Court did not address, the assertion made herein that the same conduct punishable under ORS 163.425(1)(a) is also punishable as a Class A misdemeanor (Contributing to the Sexual Delinquency of a Minor). Compare ORS 163.425(1)(a) with ORS 163.435 .

The vertical proportionality analysis proceeds by examining the offense conduct and the relative severity of related crimes. Simonson, 243 Or App at 541. When the severity of the penalty for the crime of conviction does not align with the severity of the offense conduct, as compared to the penalties set out for related offenses, the court must impose the less severe penalty. Id. at 541-2. The Simonson court held that punishing a person for having sexual intercourse with a person under the age of 18 more severely than punishing a person for having sexual intercourse with a person under the age of 16 violated the vertical proportionality prong of Article I, § 16. Simonson, 243 Or App at 541-2.

The same constitutional principles applied in Simonson guide the analysis here. The state alleges that Mr. Smith’s offense conduct resulted from a mutual sexual relationship with Ms. Jones. Just as in Simonson, this conduct involved factually consensual sexual acts with a female over the age of 16 but under the age of 18. As in Simonson, the “lack of consent” was due solely to the fact that the law has determined that Ms. Jones is incapable of consent because she was under 18 at the time of the alleged offenses. The defendant in Simonson would have been punished less severely under a statute prohibiting the same conduct with a younger minor — a more severe offense. Simonson, 243 Or App at 541-2. His exposure to higher punishment for less severe conduct was held to be unconstitutionally disproportionate. Id. The same constitutional proportionality problem arises when identical conduct is punished more severely under one statute and less severely under a similar statute, especially where the punishment gap is between a felony and a misdemeanor.

As noted above, the arbitrary punishment of a crime as either a felony or a misdemeanor was found to implicate the Oregon Constitution in State v. Pirkey, 203 Or. 697 (1955), overruled on other grounds, Klamath Falls v. Winters, 289 Or. 747 (1955). Pirkey had ultimately hinged its hold on the Equal Privileges Clause of the Oregon Constitution, and it is application of that clause – and only that clause -- which was overruled in Klamath Falls v. Winters. Its statements regarding Article I, section 16, have not been overruled.

If you find yourself in an open sentencing situation for a client charged with sex abuse II based on age, I would move for immediate misdemeanor treatment because the felony sentence is disproportionate.