Offenses Against Persons

ORS 163.375
Rape in the first degree


(1)

A person who has sexual intercourse with another person commits the crime of rape in the first degree if:

(a)

The victim is subjected to forcible compulsion by the person;

(b)

The victim is under 12 years of age;

(c)

The victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child; or

(d)

The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.

(2)

Rape in the first degree is a Class A felony. [1971 c.743 §111; 1989 c.359 §2; 1991 c.628 §3]

Notes of Decisions

Under Former Similar Statute (Ors 163.210)

There was no rule in this state that either required or prohibited a cautionary instruction concerning the victim's credibility. State v. Stocker, 11 Or App 617, 503 P2d 501 (1972), Sup Ct review denied

In General

An indictment for rape that does not specifically state that the female was not the defendant's wife will withstand a demurrer for insufficiency. State v. Aronhalt, 18 Or App 577, 526 P2d 463 (1974), Sup Ct review denied

Sexual abuse in the first degree was held not to be a lesser-included-offense of attempted rape. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)

Although evidence included statement by victim made to cause defendant to believe that she was consenting to intercourse, but made with ultimate motive of opening avenue for her escape, evidence of rape was sufficient to submit to jury. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975)

Trial court was not required to merge crimes of first degree rape and first degree sodomy (ORS 163.405) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant opposed state's motion, to consolidate charges resulting from same conduct, defendant waived double jeopardy protection and the two findings of guilty were properly merged into one conviction for sentencing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

Where defendant failed to argue at trial that there was no evidence of penetration, issue could not be raised on appeal. State v. Tricker, 37 Or App 525, 588 P2d 48 (1978)

Evidence that, inter alia, defendant grabbed and slapped victim, threw her in car, struck her on head when she tried to escape, and held her hands behind her head while having sexual intercourse with her was sufficient to show lack of consent and forcible compulsion. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)

In prosecution for attempted rape under this section and ORS 161.405, evidence that defendant asked victim "Can I rape you?" and then backed up his car toward her after she walked away does not prove that defendant intended to have forcible sexual intercourse with victim. State v. Graham, 70 Or App 589, 689 P2d 1315 (1984), Sup Ct review denied

Where defendant forcibly compelled his son to have sexual intercourse with his stepdaughter, defendant was guilty of rape in first degree by operation of this section and ORS 161.155. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Trial court was not required to consolidate sentences for six separate convictions, one count each of first and third degree rape and two counts each of first and third degree sodomy because each first degree crime required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

Where jury was entitled to infer from evidence that defendant who was charged with rape in first degree subjected victims to "forcible compulsion," one element of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendant's lack of venue argument and denying his motion or judgment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)

Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant's motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Court refused to read definition of daughter in ORS 109.041 into this section. State v. Pennington, 120 Or App 360, 852 P2d 900 (1993), Sup Ct review denied

Prohibition against sexual intercourse with person "incapable of consent by reason of mental defect" is not vague under federal constitutional standards. Anderson v. Morrow, 371 F3d 1027 (9th Cir. 2004)

"Subjected to forcible compulsion" describes conduct that is material element requiring proof of culpable mental state. State v. Nelson, 241 Or App 681, 251 P3d 240 (2011)

To constitute "forcible compulsion" under section, physical force must be greater in degree or different in kind from simple movement and contact inherent in sexual contact at issue and must be sufficient to compel victim to submit to or engage in sexual contact against the victim's will. State v. O'Hara, 251 Or App 244, 283 P3d 396 (2012), Sup Ct review denied

§§ 163.355 to 163.375

Notes of Decisions

Indictments charging defendants with forcible "sexual intercourse with...a female" were sufficient, notwithstanding that indictments did not allege that defendants were males. State v. Routh/Hawkins, 30 Or App 901, 568 P2d 704 (1977), Sup Ct review denied

Completed Citations

State v. Hamilton, 5 Or App 266, 483 P2d 90 (1971), Sup Ct review denied

Law Review Citations

19 WLR 489 (1983)

§§ 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