Challenging the Gridblock for Online Sexual Corruption

by: Ryan Scott • May 1, 2026 • no comments

This week, the Oregon Supreme Court remanded a case back to the Court of Appeals to decide whether the sentence for Online Sexual Solicitation of a Minor violates Article I, section 16, of the Oregon Constitution. Specifically, does it violate the rule known as vertical proportionality, whereby a lesser offense imposes a greater punishment than a greater offense?

For example, if the sentence for theft in the third degree was greater than theft in the first degree, that would violate proportionality. Online sexual corruption of a child in the first degree is committed when a perpetrator uses an online communication to contact a person whom they reasonably believe is under 16 years of age for the purposes of arousing or gratifying the sexual desire of the perpetrator or another person and intentionally takes a substantial step towards meeting the child. Online sexual corruption of a child is a category 8 offense, which makes it presumptive prison.

But if that same perpetrator has sex with, say, a 15 year old, the sentence is a category 6 offense and presumptive probation if the perpetrator has either no or little criminal history.

Above, I used the phrase "lesser offense" in describing the situation where a lesser offense is treated more harshly than a greater offense. But that phrase "lesser offense" glosses over a significant legal issue. Note I did not say "lesser-included offense" because Online Sexual Corruption is a not a lesser-included offense. And the state would argue it is not always a lesser offense. For example, what if the defendant was communicating with a 10 year old?

In the case at issue, the defendant wasn't communicating with a child at all, but an undercover police officer who had logged into an adults-only website and told the defendant he was a minor child.

Vertical proportionality has existed for a long-time in Oregon. Historically, it was limited to looking at the punishment for related offenses, not the facts of any particular case. More to the point, it has existed since long before Rodriguez/Buck, the cases which held for the first time that defendants could argue that the specific facts of their case rendered a sentence unconstitutionally disproportionate. So vertical proportionality meant the sentencing scheme was unconstitutional, but Rodriguez/Buck and their progeny meant a sentence could be unconsitutional as-applied to a specific defendant, based on their conduct and particular characteristics.

The defendant in the case I'm describing -- and probably the defendant in the vast majority of Online Sexual Corruption stings -- has, in my opinion, a very strong argument for an as-applied challenge. It is not unlike a scenario where a defendant is convicted of Using a Child in a Sexually Explicit Display, for soliciting a slightly lewd photo from a 15 year old and getting 70 months in prison, when having sex with that same 15 year old would result in probation. Under those facts, it's a very compelling argument that the greater sentence is disproportionate compared to the much lesser sentence for more serious behavior.

But a facial challenge to the sentencing scheme is going to be a problem, because the state will have an argument that not every Online Sexual Corruption or Using a Child Case will involve less egregious behavior. In the abstract, it could be worse behavior, and the problem with a facial challenge is the court may have to consider abstractions, specifically whether Online Sexual Corruption could ever be worse than Rape in the Third Degree.

In sum, you almost always want to argue the sentence is unconstitutional as-applied, in addition to any facial challenge you want to make.