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When Things Come Together: Simultaneity, Merger and Intercourse: UPDATED

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by: Ryan • December 11, 2010 • no comments

Here's a merger argument you will win, but you shouldn't. Rape III and Sex Abuse II, for the same act of intercourse, merge into a single conviction.

In Simonson, the Oregon Court of Appeals noted the proportionality problem with Sex Abuse II based on a Stamper theory of conviction.

Each of the charges for which defendant was convicted involved sexual intercourse with a victim under the age of 18. ORS 163.425(1)(a). The offense so committed-sexual abuse in the second degree-carries a crime score of "7." However, if defendant had had the same kind of sexual intercourse with still younger victims (aged 14 or 15), he could have been charged with third-degree rape, ORS 163.355, the crime seriousness score for those offenses would have been "6," and defendant's presumptive sentences for them would have been less severe.

Does this mean sex abuse II - based on having sex with someone less than 18 - is a lesser-included of Rape III, based on having sex with someone under 16? A lesser-included offense naturally merges with the greater-inclusive offense.

And the answer is . . . it doesn't actually matter if one is a lesser-included of the other. They merge regardless. As I mentioned, you can't commit Rape III without also committing Sex Abuse II (that is, you can't have sex with a 15 year old without having sex with someone younger than 18). The Oregon Supreme Court has recently held that two crimes merge if you necessarily commit one - as a matter of law - while committing the other. State v. Blake, 348 Or 95, 228 P3d 560 (2010).

Otherwise consensual sex with a 14 year old constitutes two crimes, under current law. It is rape III, which involves otherwise consensual sex with someone under 16. And it is sex abuse II, which involves otherwise consensual sex with someone under 18, according to the worst Court of Appeals opinion of the last twenty years, State v. Stamper, 197 Or App 413 (2005).

You can commit sex abuse II by having non-consensual sex with an adult, but Stamper is unambiguous that you are also guilty if you have consensual sex with a minor. There is nothing inherently unusual about a lesser-included offense which describes a broader array of conduct than the greater offense, which is more narrow by definition. But the peculiar way the language of sex abuse II - as interpreted by Stamper - criminalizes otherwise consensual behavior with a minor means that the elements don't match in the way we usually think of when we think of lesser-included offenses.

But as I mentioned, they still merge - even if they aren't lesser-included offenses - as long as committing one necessarily involves committing the other. By definition, when two counts merge, there is only one conviction. In Blake, possession of a forged instrument merged with forgery, and the one that was left standing was the forgery, since forgery encompasses possession, like a Russian nesting doll. (That is, every forgery necessarily requires possession, but not every possession requires forgery.) Similarly, rape III would be the only conviction after it merges with sex abuse II, because sex with a 14 year old always involves sex with someone less than 18, but sex with someone less than 18 doesn't require sex with a 14 year old. Shorter version: when two counts merge under a Blake theory, only the more narrow conviction remains.

There are a number of reasons Stamper is not only wrong but absurd. Until Simonson, sex abuse II was a 7 on the grid, Rape III a 6. So, in Oregon, sex with a 17 year old could be punished more harshly than sex with a 14 year old. For that reason, it was better to be convicted of a Rape III than a Sex Abuse II. That problem no longer exists, thanks to Simonson.

But there's another reason it's still better to have a Rape III conviction. 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.

So let's say the state is charging your 18 year old client with both the Rape III and the Sex Abuse II, for one act of intercourse with a 14 year old. If the Sex Abuse II merges into the Rape III, your client does not have to register as a sex offender, because he only has one conviction for Rape III, and he is within 5 years of age of the victim.

Of course, the prosecutor who charges both crimes is probably violating the rule against multiplicity, but that's an argument for another day. But under the merger analysis in the above situation, it is better for your client to be charged with both crimes, since merger assures he won't have to register.

I mentioned this was a situation where you will win the merger argument, but you shouldn't, and the reason you shouldn't is that sex abuse II should not apply to otherwise consensual sex. If it doesn't, they won't merge, but for that to happen, Stamper would have to be overruled. Reading Simonson, and its implied invitation to the Oregon Supreme Court to grant review, that may yet happen.