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Two Great Opinions that Go Great Together

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by: Ryan • June 21, 2011 • no comments

In an earlier post of mine on the absurdity of Stamper and Sex Abuse II, Jess Barton commented, and he suggested an equal privileges argument as a way to respond to Stamper. Read for yourself, but he pointed out that if there's no policy on when to charge Sex Abuse II or Rape III, then there's an equal privileges problem under Freeland.

I agreed with Jess in theory, but the problem, I feared, is that the state would respond as follows: okay, fine, our policy is this. We will never charge Rape III again. From now on, we'll only charge Sex Abuse II.

In effect, that's what happened in Multnomah County after Freeland. They simply decided there would simply never again be a preliminary hearing in Multnomah County, and there hasn't been one since

That doesn't mean Jess was wrong. Far from it. He was completely right, which was true before Savastano and certainly true after Savastano. I never discouraged his argument, but I did have the qualms that I just mentioned

Anyway, I no longer have those qualms. In light of Simonson, the state has lost a major part of its incentive to charge Sex Abuse II. In fact, if Sex Abuse II is now a CSL 1, What is the Crime Seriousness Level of Sex Abuse II after Simonson? , then the state might be hesitant to adopt a policy of only charging Sex Abuse II, which would be presumptive probation, regardless of the number of counts. That doesn't mean they won't charge Sex Abuse II in some cases, in order to obtain sex offender registration they might not get for a Rape III. On the other hand, the state's fear that Stamper could be overturned if the Oregon Supreme Court grants review may be yet another reason they would stop charging Sex Abuse II. Bottom line: I'm not worried that the DA's office will adopt a policy of only charging Sex Abuse II.

So if your county alternates between Sex Abuse II, Rape III and Contributing to the Delinquency of a Minor, consider filing a motion to dismiss the Sex Abuse II under Savastano.

If you want an equal privileges trial memo that was taken from the winning brief in Savastano, go here.