Offenses Against Persons

ORS 163.345
Age as a defense in certain cases


(1)

In any prosecution under ORS 163.355 (Rape in the third degree), 163.365 (Rape in the second degree), 163.385 (Sodomy in the third degree), 163.395 (Sodomy in the second degree), 163.415 (Sexual abuse in the third degree), 163.425 (Sexual abuse in the second degree), 163.427 (Sexual abuse in the first degree) or 163.435 (Contributing to the sexual delinquency of a minor) in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense.

(2)

In any prosecution under ORS 163.408 (Unlawful sexual penetration in the second degree), when the object used to commit the unlawful sexual penetration was the hand or any part thereof of the actor and in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense.

(3)

In any prosecution under ORS 163.445 (Sexual misconduct) in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense if the victim was at least 15 years of age at the time of the alleged offense. [1971 c.743 §108; 1991 c.386 §3; 1991 c.830 §4; 1999 c.626 §24; amendments by 1999 c.626 §45 repealed by 2001 c.884 §1]

Notes of Decisions

Age difference of less than three years is not defense where victim does not give actual consent. State ex rel Juv. Dept. v. Kitt, 129 Or App 591, 879 P2d 1348 (1994)

Adult charged as accomplice or with inchoate crime does not obtain defense solely by reason that defense would be available to minor contemplated as having committed underlying conduct. State ex rel Juvenile Dept. v. Aragorn, 189 Or App 65, 73 P3d 939 (2003), 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