Things about Sexual Abuse II that are More Important Than Ever
I'm not quite sure how Simonson will impact how frequently these cases go to trial. Certainly defendants have What is the Crime Seriousness Level of Sex Abuse II after Simonson? , which should result in more favorable plea bargains. But defense attorneys, reading the tea leaves from today's opinion, may feel it's more likely than ever that the Oregon Supreme Court will grant review and issue an opinion that overrules Stamper. In that case, all the more reason to go to trial, where an appellate reversal down the road may eliminate the defendant's sex offender registration requirement.
With trial in mind, I want to remind everyone that there is a defense to Sexual Abuse in the Second Degree that doesn't apply to Rape in the Third Degree, even if Stamper isn't overruled.
Secondly, if the prosecutor tries to hedge her bets by charging both Rape III and Sexual Abuse II for the same act of intercourse, it's worth noting that the two crimes should Rape III and Sex Abuse II . The end result is a Rape III conviction, which is probably the only thing that should have been charged in the first place. Rape III is still a conviction which will dog your client for the rest of his life, but there may be an opportunity to eventually eliminate his registration requirement. (In some cases, your client won't have to register at all.) Alternatively, you can attack an indictment that charges both Rape III and Sex Abuse II for violating the multiplicity rule. See the sample multiplicity motion at the bottom of this post.