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Silver Lining to Sexual Abuse II

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by: Ryan • January 25, 2011 • no comments

Update 6/15/11: For an important opinion on sex abuse II sentencing, see St v. Simonson.

I'm going to use the phrase "statutory rape" to include all crimes in which the sexual contact is criminal only because of the minor's age. Therefore, it includes rape involving a child under 14 as well as contributing to the sexual delinquency of a minor, when the sex involves a minor under 18. I'm also using the phrase as shorthand for sexual contact that is less than intercourse but is still criminal because one of the participants is a minor.

In a previous post, I noted that the defendant's erroneous belief that the victim of statutory rape was over 18 is only a defense if the crime requires that the victim is younger than 18. If the crime requires that the victim is under 16, the defense doesn't apply.

I have also written on State v. Stamper, a case that has had remarkably absurd consequences. Stamper is about sexual abuse in the second degree, which criminalizes sexual intercourse when there is no consent. What Stamper did was interpret the lack of consent required by the statute to encompass the inability to legally consent due to age. Therefore, otherwise consensual sex between a 17 year old and a 20 year (which previously would have been no worse than the misdemeanor crime of Contributing to the Sexual Delinquency of a Minor) is now a felony Sexual Abuse in the Second Degree.

There are a number of reasons Stamper is not only wrong but absurd. Sex abuse II is a 7 on the grid, Rape III a 6. So, in Oregon, sex with a 17 year old can be punished more harshly than sex with a 14 year old.

Further, an 18 year old defendant - because he is within 5 years of age - who has intercourse with a 14 year old does not have to register as a sex offender, if convicted of Rape III. But a 20 year old would have to register if convicted of Sex Abuse II with a 17 year old.

Despite the absurdity, prosecutors will routinely charge a defendant with both Sexual Abuse II and Rape III for a single act of intercourse, because the consequences of SAII are usually greater and that gives the state more leverage to extract a plea (especially if the defense attorney is unaware of Rape III and Sex Abuse II .)

But the silver lining referenced in the title is this: the defendant's lack of awareness of the victim's age is a defense to Sex Abuse II, even though it is not a defense to Rape III. This is because Sex Abuse II - in light of Stamper - criminalizes sex with a minor who is younger than 18, and the defense applies to crimes where the age must be less than 18. The fact that it is frequently charged in cases where the minor is less than 16 is merely a consequence of the ridiculousness of Stamper.

In other words, assume you have sex with someone who is 15 years old. If charged with rape, it's no defense that you believed she was 18, but if you're only 18, you don't have to register as a sex offender. If charged with sexual abuse II, it is a defense, but if you lose, you do have to register.

Does anyone think this is what the legislature intended?

Now, let's talk about the chessmaster approach to a case where the defendant is charged with both Sex Abuse II and Rape III. If you file a motion to dismiss based on multiplicity, and the judge agrees that one of the counts should be dismissed pre-trial, which count do you want it to be? If the Rape III is dismissed, that could be good, because you may have a defense to SAII and frankly, Stamper may be overturned soon anyway, possibly allowing your client to avoid any sex conviction at all. On the downside, your client - depending on his age - might have to register for a SAII conviction that he wouldn't have to for a Rape III conviction. And depending on the number of counts and the defendant's criminal history, he might serve more prison time for a SAII conviction than a Rape III.

But if the SAII is dismissed, your client has no defense to the Rape III.

I don't envy your choice.

The multiplicity motion to dismiss is here. [MULTIPLICITY SEX ABUSE II Public].