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Sex Abuse II: We've Won One Proportionality Argument, Could We Win Another

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by: Ryan • July 12, 2013 • no comments

In State v. Simonson, the Oregon Court of Appeals held that making age-based sex abuse II (i.e., sex with someone under 18) a 7 on the sentencing guidelines, when rape III (sex with someone under 16) was a 6 violated the proportionality clause of the Oregon Constitution.

But what about the fact that sex with a 17 year old is a felony if the defendant is charged with sex abuse II, but the same behavior is a misdemeanor if charged as contributing to the sexual delinquency of a minor? And does it matter that for the vast majority of states (and Canada), sex with a 17 year old is perfectly legal?

Oregon Constitution

In a 1955 case called State v. Pirkey, the Oregon Supreme Court struck as unconstitutional a crime that could be treated as either a misdemeanor or a felony, it did so under the equal privileges clause. The COA -- in a per curiam opinion in St v Alvey -- would subsequently hold that that portion of Pirkey had been overruled in a different equal privileges case. What no one mentioned in Alvey was that Pirkey seemed to suggest that found that giving the prosecutor the ability to charge the same behavior as either a felony or a misdemeanor violated Oregon's proportionality clause as well.

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.

State v. Pirkey, 203 Ore. 697, 705 (Or. 1955)

That said, it's not entirely unambiguous that the Pirkey opinion was rooted in an Article 1, section 16, violation, as well as an EP violation. Opinions in 1955 were not written with the same analytical rigor that they are now. Maybe the court was merely suggesting there might also be a proportionality violation. On the other hand, if you're inclined to read the above passage as finding a proportionality violation in addition to an EP violation, then you'd have to conclude that the COA is not in a position to ignore that portion of Pirkey, because there's been no Supreme Court case to the contrary, at least not that I'm aware of.

US Constitution

As the Supreme Court stressed recently, "(p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment." Brown v. Plata, 131 S. Ct. 1910, 1928 (2011). And the "Eighth Amendment's prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions." Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012).

Because the Eighth Amendment's limit on excessive sanctions reflects "the evolving standards of decency that mark the progress of a maturing society," Trap v. Dulles, 356 U.S. 86, 101 (1958), punishments once deemed proper and constitutional can later become unconstitutional due to social evolutions reflected in changed laws and practices. See Roper v. Simmons, 543 U.S. 551 (2005) (declaring unconstitutional execution of juvenile murderer, reversing contrary earlier Eighth Amendment holding, based on "the trend toward abolition of the juvenile death penalty"); Atkins v. Virginia, 536 U.S. 304 (2002) (declaring unconstitutional execution of mentally retarded murderer, reversing contrary earlier Eighth Amendment holding, based on recent legislative activity and "consistency of the direction of change"). Consequently, this Court must judge whether the Blewetts' punishment may be excessive and unconstitutional "not by the standards that prevailed in 1685 when Lord Jeffreys presided over the 'Bloody Assizes' or when the Bill of Rights was adopted, but rather by those that currently prevail." Atkins, 536 U.S. at 3.11 (emphasis added).

Due to evolution of societal and legal standards as evidenced by currently prevailing sentencing laws and practices throughout the country, is it a violation of cruel and unusual punishment to sentence sex with a 17 year old as a felony, which is a minority position compared rest of the country? (Unfortunately for this argument, California is also in the minority.)

The age of consent for each state can be found here.

Enforcing the Constitution's limit on excessive punishment is, of course, a critical judicial responsibility: the Framers included the Eighth Amendment in the Bill of Rights to ensure judges would serve as an integral check and final safeguard against government eff01is to prosecute oppressively and to punish excessively. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2022 (2010) (stressing Eighth Amendment requires a court to "determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution"); Stanford v. Kentucky, 492 U.S. 361, 382 (1989) (O'Connor, J., concurring in part and concurring in the judgment) (stating courts have "a constitutional obligation ... to judge whether the nexus between the punishment imposed and the defendant's blameworthiness is proportional"); see also Plata, 131 S. Ct. at 1928 (explaining that "cornis have a responsibility to remedy ... [an] Eighth Amendment violation" when other government officials fail to act); Michael J. Zydney Mannheimer, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. 69, 100-110 (2012) (setting forth detailed historical account of the Framers view of the Eighth Amendment as a "constraint on the federal government's power to punish").