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 incapacitated, physically helpless or incapable of appraising the nature of the victim’s conduct, 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.

(4)

In any prosecution under ORS 163.415 (Sexual abuse in the third degree) or 163.425 (Sexual abuse in the second degree) in which the victim’s lack of consent is not based on the incapacity of the victim to consent because of the victim’s age, it is an affirmative defense for the defendant to prove that, at the time of the alleged offense, the defendant reasonably believed that the victim consented to the sexual contact, sexual intercourse or oral or anal intercourse. [1971 c.743 §106; 2021 c.82 §3; 2021 c.410 §1]

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

Source

Last accessed
May 26, 2023

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