Offenses Against Persons

ORS 163.325
Ignorance or mistake as a defense


(1)

In any prosecution under ORS 163.355 (Rape in the third degree) to 163.445 (Sexual misconduct) in which the criminality of conduct depends on a child’s being under the age of 16, it is no defense that the defendant did not know the child’s age or that the defendant reasonably believed the child to be older than the age of 16.

(2)

When criminality depends on the child’s being under a specified age other than 16, it is an affirmative defense for the defendant to prove that the defendant reasonably believed the child to be above the specified age at the time of the alleged offense.

(3)

In any prosecution under ORS 163.355 (Rape in the third degree) to 163.445 (Sexual misconduct) in which the victim’s lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense for the defendant to prove that at the time of the alleged offense the defendant did not know of the facts or conditions responsible for the victim’s incapacity to consent. [1971 c.743 §106]

Notes of Decisions

Under this section, it is no defense to charge of rape or sodomy that defendant reasonably believed victim to be older than particular age if that age is under 16. State v. Hoehne, 78 Or App 479, 717 P2d 237 (1986)

Relevant inquiry is whether defendant was aware of condition that in fact rendered victim unable to consent, not whether defendant was aware that effect of condition was to render victim unable to consent. State v. Anderson, 137 Or App 36, 902 P2d 1206 (1995), Sup Ct review denied

Affirmative defense that defendant lacked knowledge that victim was incapable of consent does not unconstitutionally shift burden of proof because knowledge of incapacity is not required element of crime. State v. Phelps, 141 Or App 555, 920 P2d 1098 (1996), 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)


Source

Last accessed
Jun. 26, 2021