Offenses Against Persons

ORS 163.405
Sodomy in the first degree


A person who engages in oral or anal sexual intercourse with another person or causes another to engage in oral or anal sexual intercourse commits the crime of sodomy in the first degree if:


The victim is subjected to forcible compulsion by the actor;


The victim is under 12 years of age;


The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse; or


The victim is incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim’s conduct.


Sodomy in the first degree is a Class A felony. [1971 c.743 §114; 1989 c.359 §4; 2017 c.318 §5; 2021 c.82 §5]

Notes of Decisions

Trial court was not required to merge crimes of first degree sodomy and first degree rape (ORS 163.375) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant placed bound victim in rear seat of car and anally and orally committed sodomy, the two acts of sodomy constituted two separate crimes, separately punishable. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Where record of trial of defendant convicted under this section clearly indicated that Judge and defense counsel were not aware of alternative provisions for dealing with sexually dangerous persons, pursuant to ORS 426.675, matter was remanded for reconsideration. State v. Morse, 35 Or App 7, 580 P2d 1038 (1978)

Testimony of defendant’s daughter, who was victim’s babysitter, that daughter reported to girl’s mother that defendant had “tingled” victim, was prejudicial hearsay. State v. McGaughy, 39 Or App 275, 591 P2d 1194 (1979)

Sexual abuse charge was merged in sodomy conviction where first sexual contact and at least one act of sodomy were not so separated in time, intervening events, or other circumstances as not to be consecutive steps in sodomy. State v. Harris, 287 Or 335, 599 P2d 456 (1979)

In prosecution under this section, evidence that defendant was being sexually fondled by his wife and that he attempted to expose himself to children in back seat of his car was probative of sexual arousal and was therefore relevant evidence of sexual contact with victim. State v. Fitch, 47 Or App 205, 613 P2d 1108 (1980)

Failure to merge sodomy and sexual abuse convictions was not error where events were separated by several hours, occurred in different locations and settings, and were separated by a number of intervening events. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Defendant who forcibly compels another person to engage in deviate sexual intercourse with third person can be convicted of sodomy and rape under this section. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Where petitioner sought review of order setting parole release date arguing that Board erred in applying risk aggravation factor C, it was determined that victims’ ages as defining element of crimes and their particular vulnerability due to youth are not same and petitioner’s hearing satisfied due process requirements. Jarvis v. State Board of Parole, 96 Or App 322, 773 P2d 3 (1989), Sup Ct review denied

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 defendant was charged only with sodomy and jury could not rationally and consistently conclude that he intended only sexual abuse, evidence did not support instruction for attempted sexual abuse. State v. Fox, 111 Or App 362, 826 P2d 89 (1992), Sup Ct review denied

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

Prohibition against deviate 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)

Law Review Citations

51 OLR 501-504 (1972)


Last accessed
Mar. 11, 2023