Offenses Against Persons

ORS 163.315
Incapacity to consent

  • effect of lack of resistance


A person is considered incapable of consenting to a sexual act if the person is:


Under 18 years of age;


Mentally defective;


Mentally incapacitated; or


Physically helpless.


A lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence. [1971 c.743 §105; 1999 c.949 §2; 2001 c.104 §52]

Notes of Decisions

All four types of legal incapacity set out in this section are intended to apply to all sexual offenses. State v. Landino, 38 Or App 447, 590 P2d 737 (1979), Sup Ct review denied

Incapacity to consent to sexual act under this section extends to civil cases. Wilson v. Tobiassen, 97 Or App 527, 777 P2d 1379 (1989), Sup Ct review denied

§§ 163.305 to 163.465

Notes of Decisions

Under evidence that defendant intentionally touched victim's buttocks through clothing, whether such conduct constituted "sexual contact" of victim's "intimate parts" was question for jury. State v. Buller, 31 Or App 889, 581 P2d 1263 (1977)

Genitalia and breasts are intimate parts as matter of law under this section, and undeveloped genitalia and breasts of children are included within definition. State v. Turner, 33 Or App 157, 575 P2d 1007 (1978), Sup Ct review denied

Rule that state is not permitted to introduce evidence of other crimes or bad acts solely to prove defendant acted as on prior occasions is strictly applied in sex crime cases, even those involving deviate sexual behavior, in so far as conduct with persons other than victim is concerned. State v. Sicks, 33 Or App 435, 576 P2d 834 (1978)

Law Review Citations

51 OLR 428, 518-522, 555 (1972)

Chapter 163

Law Review Citations

51 OLR 427-637 (1972)


Last accessed
Jun. 26, 2021