Offenses Against Persons

ORS 163.427
Sexual abuse in the first degree


(1)

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

(a)

Subjects another person to sexual contact and:

(A)

The victim is less than 14 years of age;

(B)

The victim is subjected to forcible compulsion by the actor; or

(C)

The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or

(b)

Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

(2)

Sexual abuse in the first degree is a Class B felony. [1991 c.830 §3; 1995 c.657 §12; 1995 c.671 §10]
Note: 163.427 (Sexual abuse in the first degree) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 163 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Notes of Decisions

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

Photographs of victims' partially nude bodies were sufficient to show substantial step toward commission of sexual abuse in first degree. State v. Williams, 313 Or 19, 828 P2d 1006 (1992)

Proof of incapacity to consent also proves element of lack of consent for lesser included offense of sexual abuse in third degree (ORS 163.415). State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

Harassment by touching sexual or intimate parts of another (ORS 166.065) is not lesser included offense of sexual abuse in first degree. State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

Presence of more than one element that converts lower degree of sexual abuse to higher degree of sexual abuse does not convert defendant's single act into separate crimes. State v. Parkins, 346 Or 333, 211 P3d 262 (2009)

"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 be forcible compulsion, act must cause or result in particular instance of sexual contact that is focus of charge. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)

Use of Physical Force Constitutes Forcible Compulsion Is

1) greater in degree or different in kind from simple act of touching intimate part of another; and 2) sufficient to compel victim to submit to or engage in sexual contact against victim's will. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)

Victim, who was asleep at time crime was committed, was physically helpless and incapable of consent. State v. Marker, 263 Or App 669, 329 P3d 781 (2014)

Because defendant did not violate separate "statutory provisions," violations are not eligible for merger under ORS 161.067 where defendant was charged with three counts of sexual abuse in first degree for violating different subparagraphs under this section. State v. Black, 270 Or App 501, 348 P3d 1154 (2015)

For purposes of U.S. Sentencing Guidelines Manual, conviction under this section for sexual abuse of minor or forcible sex offense entails conviction of elements of generic federal definition of crime of violence. United States v. Rocha-Alvarado, 843 F3d 802 (9th Cir. 2016)

§§ 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