Offenses Against Persons

ORS 163.425
Sexual abuse in the second degree


(1)

A person commits the crime of sexual abuse in the second degree when:

(a)

The person subjects another person to sexual intercourse, oral or anal sexual intercourse or, except as provided in ORS 163.412 (Exceptions to unlawful sexual penetration prohibition), penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim does not consent thereto; or

(b)

(A) The person violates ORS 163.415 (Sexual abuse in the third degree) (1)(a)(B);

(B)

The person is 21 years of age or older; and

(C)

At any time before the commission of the offense, the person was the victim’s coach as defined in ORS 163.426 (Crime category classification for sexual abuse in the second degree).

(2)

Sexual abuse in the second degree is a Class C felony. [1971 c.743 §116; 1983 c.564 §1; 1991 c.386 §14; 1991 c.830 §2; 2009 c.876 §2; 2017 c.318 §6]

Notes of Decisions

"Sexual contact" in this statute is applicable to more than the reproductive organs. State v. Pagel, 16 Or App 412, 518 P2d 1037 (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)

Where defendant opposed state's motion, to consolidate both attempted rape and sexual abuse charges resulting from same conduct, he 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)

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)

Where defendant drove victim substantial distance in his pickup truck and detained her for over eight hours, this was not type of minimal displacement incidental to commission of sodomy so failure to merge kidnapping and sodomy convictions and sentences was not error. State v. Bateman, 48 Or App 357, 616 P2d 1206 (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)

Language of this section does not, by itself, make sexual abuse a lesser included offense in charge of attempted rape in the first degree. State v. Sears, 70 Or App 537, 689 P2d 1324 (1984)

Indictment sufficiently alleged sexual abuse in the first degree, because allegation of "sexual contact" includes by definition assertion that "sexual" or "other intimate parts" were touched. State v. Taylor, 94 Or App 538, 765 P2d 1257 (1988)

Where defendant approached 7-year-old girl and 9-year-old girl separately in department store and touched buttocks, there was evidence from which rational trier of fact could conclude girls both considered their buttocks as intimate and from which trier of fact could have found that reasonable person would have known girls' buttocks were intimate under circumstances. State v. Stacy, 113 Or App 141, 830 P2d 624 (1992), Sup Ct review denied

First degree sexual abuse charged under pre-1991 version of this section is subject to statute of limitations applicable to same offense under ORS 163.427. State v. Sharp, 151 Or App 122, 949 P2d 1230 (1997), Sup Ct review denied

Lack of consent by victim may be actual or may result from victim's lack of capacity to consent because victim was under 18 years of age. State v. Stamper, 197 Or App 413, 106 P3d 172 (2005), Sup Ct review denied; State v. Simonson, 243 Or App 535, 259 P3d 962 (2011), Sup Ct review denied; State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013)

Sentence for having sex with minor 16 or 17 years old on theory that minor cannot legally consent violates Article I, section 16 of state constitution if sentence exceeds sentence allowable for having sex with minor under 16 years old. State v. Simonson, 243 Or App 535, 259 P3d 962 (2011), Sup Ct review denied

"[D]oes not consent" includes lack of capacity to consent. State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013); State v. Pass, 264 Or App 583, 333 P3d 1139 (2014)

"Subjects" as used in this section means to cause to undergo, to expose to or to make accessible to, and defendant who participated in sexual conduct with minor, even where minor initiated conduct, committed sexual abuse under this section. State v. Bernhardt, 277 Or App 868, 376 P3d 316 (2016), Sup Ct review denied

Law Review Citations

68 OLR 255 (1989)

§§ 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