ORS 163.315
Incapacity to consent

effect of lack of resistance

Text
Annotations 3

(1)

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

(a)

Under 18 years of age;

(b)

Incapable of appraising the nature of the person’s conduct;

(c)

Mentally incapacitated; or

(d)

Physically helpless.

(2)

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.

(3)

A person is incapable of appraising the nature of the person’s conduct if:

(a)

The person is unable to understand the nature of the conduct;

(b)

The person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or

(c)

The person is unable to communicate a decision to engage in conduct. [1971 c.743 §105; 1999 c.949 §2; 2001 c.104 §52; 2021 c.82 §2]

Source: Section 163.315 — Incapacity to consent; effect of lack of resistance, https://www.oregonlegislature.gov/bills_laws/ors/ors163.html.

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

Law Review Citations

98 OLR 325 (2020)

163.005
Criminal homicide 163.095
“Aggravated murder” defined 163.105
Sentencing options for aggravated murder 163.107
Murder in the first degree 163.109
Alternative proof of certain victims of murder in the first degree 163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree 163.115
Murder in the second degree 163.117
Causing or aiding suicide as defense to charge of murder 163.118
Manslaughter in the first degree 163.125
Manslaughter in the second degree 163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree 163.145
Criminally negligent homicide 163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide 163.149
Aggravated vehicular homicide 163.150
Sentencing for aggravated murder 163.155
Sentencing for murder of pregnant victim 163.160
Assault in the fourth degree 163.165
Assault in the third degree 163.168
Crime category classification for assault in the third degree 163.175
Assault in the second degree 163.185
Assault in the first degree 163.187
Strangulation 163.190
Menacing 163.191
Intimidation by display of a noose 163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order 163.193
Assisting another person to commit suicide 163.195
Recklessly endangering another person 163.196
Aggravated driving while suspended or revoked 163.197
Hazing 163.200
Criminal mistreatment in the second degree 163.205
Criminal mistreatment in the first degree 163.206
Exceptions to criminal mistreatment 163.207
Female genital mutilation 163.208
Assaulting a public safety officer 163.211
Definitions for ORS 163.211 to 163.213 163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree 163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree 163.215
Definitions for ORS 163.215 to 163.257 163.225
Kidnapping in the second degree 163.235
Kidnapping in the first degree 163.245
Custodial interference in the second degree 163.257
Custodial interference in the first degree 163.261
Definitions for ORS 163.263 and 163.264 163.263
Subjecting another person to involuntary servitude in the second degree 163.264
Subjecting another person to involuntary servitude in the first degree 163.266
Trafficking in persons 163.269
Victim assertion of defense of duress 163.275
Coercion 163.285
Defense to coercion 163.305
Definitions 163.315
Incapacity to consent 163.325
Ignorance or mistake as a defense 163.345
Age as a defense in certain cases 163.355
Rape in the third degree 163.365
Rape in the second degree 163.375
Rape in the first degree 163.385
Sodomy in the third degree 163.395
Sodomy in the second degree 163.405
Sodomy in the first degree 163.408
Unlawful sexual penetration in the second degree 163.411
Unlawful sexual penetration in the first degree 163.412
Exceptions to unlawful sexual penetration prohibition 163.413
Purchasing sex with a minor 163.415
Sexual abuse in the third degree 163.425
Sexual abuse in the second degree 163.426
Crime category classification for sexual abuse in the second degree 163.427
Sexual abuse in the first degree 163.431
Definitions for ORS 163.431 to 163.434 163.432
Online sexual corruption of a child in the second degree 163.433
Online sexual corruption of a child in the first degree 163.434
Provisions applicable to online sexual corruption of a child 163.435
Contributing to the sexual delinquency of a minor 163.445
Sexual misconduct 163.448
Definitions for ORS 163.452 and 163.454 163.452
Custodial sexual misconduct in the first degree 163.454
Custodial sexual misconduct in the second degree 163.465
Public indecency 163.466
Classification of felony public indecency 163.467
Private indecency 163.472
Unlawful dissemination of an intimate image 163.476
Unlawfully being in a location where children regularly congregate 163.479
Unlawful contact with a child 163.505
Definitions for certain provisions of ORS 163.505 to 163.575 163.515
Bigamy 163.525
Incest 163.535
Abandonment of a child 163.537
Buying or selling a person under 18 years of age 163.545
Child neglect in the second degree 163.547
Child neglect in the first degree 163.555
Criminal nonsupport 163.565
Evidence of parentage 163.575
Endangering the welfare of a minor 163.577
Failing to supervise a child 163.580
Display of sign concerning sale of smoking devices 163.665
Definitions 163.670
Using child in display of sexually explicit conduct 163.676
Exemption from prosecution under ORS 163.684 163.682
Exceptions to ORS 163.665 to 163.693 163.684
Encouraging child sexual abuse in the first degree 163.686
Encouraging child sexual abuse in the second degree 163.687
Encouraging child sexual abuse in the third degree 163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree 163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree 163.690
Lack of knowledge of age of child as affirmative defense 163.693
Failure to report child pornography 163.700
Invasion of personal privacy in the second degree 163.701
Invasion of personal privacy in the first degree 163.702
Exceptions to ORS 163.700 and 163.701 163.705
Polygraph examination of victims in certain criminal cases prohibited 163.707
Forfeiture of motor vehicle used in drive-by shooting 163.709
Unlawful directing of light from a laser pointer 163.715
Unlawful use of a global positioning system device 163.730
Definitions for ORS 30.866 and 163.730 to 163.750 163.732
Stalking 163.735
Citation 163.738
Effect of citation 163.741
Service of stalking protective order 163.744
Initiation of action seeking citation 163.750
Violating a court’s stalking protective order 163.753
Immunity of officer acting in good faith 163.755
Conduct for which stalking protective order may not be issued 163.760
Definitions for ORS 163.760 to 163.777 163.763
Petition to circuit court for relief 163.765
Restraining order 163.767
Hearing 163.770
Appearance by telephone or electronic communication device 163.773
Enforcement of restraining order 163.775
Renewal and modification of restraining order 163.777
Fees or undertaking may not be required

Up to date

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§ 163.315’s source at oregon.gov

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Location: https://oregon.public.law/statutes/ors_163.315

Original Source: Section 163.315 — Incapacity to consent; effect of lack of resistance, https://www.oregonlegislature.gov/bills_laws/ors/ors163.html (last accessed Aug. 25, 2023).