Oregon Sex Laws
An Overview of Oregon Sex Laws
In Oregon, married and unmarried homosexual, heterosexual and bisexual adults singly, in couples or in groups, are not legally prohibited from privately engaging in any consensual sex acts other than incest and prostitution.
However, sexual activities involving a person or persons below the age of 18 are prohibited by manifold criminal statutes. Seventeen-year-old heterosexuals are allowed to marry (with parental permission), though, and are effectively exempt from age of consent restrictions. Additionally, 16- and 17-year-olds can become emancipated minors, who are also effectively exempt.
Non-forcible “sexual contact” (touching of the “sexual or other intimate parts of either party with the intent of arousing or gratifying the sexual desire of either party”) with a 14-, 15-, 16- or 17-year-old is called “sexual abuse in the third degree,” and is a Class A misdemeanor (punishable by up to a year in jail). Non-forcible sexual intercourse, oral or anal sex with a 16- or 17-year-old is called “contributing to the sexual delinquency or a minor,” and is also an A misdemeanor. (“Sexual misconduct” also has this definition, but is merely a Class C misdemeanor, punishable by no more than one month in jail. Generally, in Oregon, a person convicted of a misdemeanor, or a felony with a sentence of less than a year, will do time in a county jail; a person convicted of a felony with a sentence of over a year will go to a state prison.)
Oral and anal sex are classified as “deviate sexual intercourse.” (A definition one would have thought gay-rights advocates would have successfully gotten changed by now.) “Sexual or other intimate parts” are generally construed to be the parts of the anatomy which, if unclothed, would constitute nudity. These include, but are not limited to: the genitals, anus, buttocks and female chest/breasts. (Though it is questionable whether this discrimination between the male and female body would withstand an equal protection challenge.) [A recent Oregon court ruling held that a person’s neck can b e classified as “intimate”.]
An adult who has consensual sexual relations with a 16- or 17-year-old and can prove he or she “reasonably believed” the minor to be of age can escape prosecution or conviction. (There is no defense if the minor was under 16.) Also, if an older person in a consensual sexual relationship with a minor is less than three years older than the minor, it is defensible.
Non-forcible sexual intercourse with a 14- or 15-year-old is called “rape in the third degree,” and is a Class C felony (punishable by up to five years in prison). Non-forcible oral or anal sex with a 14- or 15-year-old is called “sodomy in the third degree,” and is also a C felony.
(The exact statutory language used in these laws with respect to “incapacity to consent because of age” is “below the age of . . . .” The ages covered are not explicitly set down, so that there may be leeway in plea bargaining. For instance, sex with a 15-year-old could initially be charged as Rape III, but later plead down to “contributing . . . .” It should also be noted, however, that most criminal episodes can be separated into distinct, individual charges that can be run consecutively at sentencing: a single homicide can result in a series of multiple murder
charges, for example. Indeed, it is a rare criminal sexual encounter that will not result in more than one “count.”)”Sexual abuse in the second degree,” a Class C felony, is a sort of catch-all law with no provisions regarding age.
Sexual relations, forcible or not, with a person 13 or below are considered extremely serious crimes in Oregon. Fourteen and up is not all that serious, and a first offender can get off with only a few months of jail time. Below 14, though, and mandatory minimum sentences kick in: This is Measure 11 territory, where “jailbait” becomes “prisonbait.”
Non-forcible sexual intercourse with a 12- or 13-year-old is called “rape in the second degree,” which is a Class B felony. This is punishable by up to ten years in prison, and carries a mandatory minimum sentence of six years, three months. Non-forcible oral or anal sex with a 12- or 13-year-old is called “sodomy in the second degree,” and is also a B felony with a 75-month minimum. The same classification and penalty apply to “unlawful sexual penetration in the second degree,” defined as non-forcibly penetrating the vagina, anus or penis of a 12- or 13-year-old with anything other than a penis. Sexually touching a person 13 or below is called “sexual abuse in the first degree,” also a B felony, 75-month minimum. (It’s curious that “sexually touching” a person the day before his or her fourteenth birthday is such a severe felony, whereas doing so the next day is only a misdemeanor: a bit more graduation would seem to be called for. But sex laws are not known for fairness or subtlety.) This also covers forcibly sexually touching a victim of any age.
Sexual relations with a person 11 years old or younger are viewed the same under Oregon law whether they’re forcible or not. The only exception – as with consensual sex with a minor of any age – is when the older participant is less than three years older than the younger.
Sexual intercourse with a person eleven or younger is called “rape in the first degree.” This is a Class A felony, and carries a mandatory 300-month minimum. Oral or anal sex with a person eleven or younger is called “sodomy in the first degree,” an A felony, also mandating a 300-month sentence. The same age provisions, classification and penalty apply to “unlawful sexual penetration in the first degree.” (Penalties w ere increased three-fold in a 2006 “emergency” legislative session, enacting “Jessica’s Law.) Forcible rape, sodomy, and sexual penetration against a victim 12 or older carry 100-month mandatory minimum sentences, and are A felonies.
(As a sidebar, the major distinctions between state and federal sex laws are: federal sex laws generally cover only sex crimes involving crossing state or U.S. borders, and any committed on federal property.)
Oregon’s “public indecency” law prohibits sexual intercourse, oral and anal sex, and “flashing” – exposing one’s genitals “with the intent of arousing the sexual desire of the person or another person,” in public or in public view. Public nudity is not prohibited per se, and public exposure of female breasts is not barred at all. A first conviction of public indecency against someone with no prior sex convictions is a Class A misdemeanor, and not a registerable sex
offense. A second conviction or one against someone with a prior sex conviction is a C felony, and is a registerable sex offense.There is also a “private indecency” law, barring non-public exposure of one’s genitals to another person without consent. The classifications and penalties are the same as for “public indecency.”
In Oregon, the only “three-strikes” law is for sex crimes: Three felony sex offenses in three separate cases, and the presumptive sentence is life in prison without the possibility of parole. Which means, for instance, that an 18-year-old who has sex with his 15-year-old girlfriend in three different counties could, as a result, grow old and die in prison.
Also, virtually all crimes, including murder, are able to be expunged from one’s record – except any sex crimes. Statutes of limitations for sex offenses are quite lengthy, and politicians love extending them. For instance: a person has until she turns 30 to have prosecuted a non-forcible sex offense committed when she was under 16.
The above statutes comprise all of those under the section “sexual offenses” in the chapter of the Oregon Revised Statutes covering person-to-person crimes. However, there are other offenses classified as sex crimes. These, along with related laws, are as follows . . . .
Incest, a C felony, is classified as an “offense against the family.” It constitutes a sex crime only if it involves a minor. “Causing, allowing, or inducing” a minor to witness a sex act is barred under “endangering the welfare of a minor,” an A misdemeanor, though not a sex crime. Bestiality is called “sexual assault of an animal,” and is a Class A misdemeanor. Necrophilia is “abuse of a corpse in the first degree,” a B felony. Neither is classed as sex crimes, but commission of either could land a person in a state mental hospital.
Under the chapter entitled “public health and decency offenses” can be found Oregon’s prostitution laws. A person who pays an adult for sex, as well as the adult so paid, is guilty of, simply, “prostitution.” It is an A misdemeanor, though not a sex crime. However, pimping and pandering is a sex crime – a Class C felony called “promoting prostitution.” The most serious prostitution offense, “compelling prostitution,” involves “inducing or causing a minor to engage in prostitution”: in other words, being either a pimp or a patron of an underage prostitute. It is a B felony carrying a mandatory minimum sentence of 70 months. There is no defense for ignorance or mistake of age. This law also covers “inducing or causing” one’s spouse or child(ren) to engage in prostitution, as well as forcing someone into prostitution.
Next up in the same chapter are Oregon’s largely moribund obscenity statutes. The bulk of these are prohibitions against providing minors with “obscene materials.” However, the term “obscene” has been ruled by Oregon courts to be “unconstitutionally vague and over-broad,” rendering most of these laws null and void. It is, effectively, not a criminal act in this state to provide minors with “sexually explicit” material (another vague term); though adult stores, over-cautiously, still bar minor patrons. The only state obscenity laws still viable (though on life support) are those restricting “obscene performances.” “Obscene performance,” though, is also virtually indefinable; though minors are still forbidden from patronizing nude dancing/nude
show establishments. “Live sex shows” are still not to be found on stages – just stripping; although that’s basically what’s provided at “lingerie modeling/tanning/private show” establishments. Presently, Oregon court rulings prohibit government from regulating “adult businesses” differently than any other legitimate businesses. In sum, communication of erotic content involving adults is, in this state, considered protected free speech. However, two cases to be decided any time by the Oregon Supreme Court will either solidify or drastically scale back the uniquely permissive treatment of “adult entertainment” in Oregon. [Update: The ruling has been made, and live sex shows involving two or more adult performers are legally permissible, but not if they’re paid, which would be considered prostitution.]Lastly . . . though also rationally classifiable under “obscenity” statutes, there is a class of offenses broadly (and arbitrarily) called “visual recording of sexual conduct by children” – serious person-to-person and sex crimes. The problem with these laws is that, like obscenity laws, they are frighteningly vague. However, they have been ruled to be permissibly so. Unfortunately, the discrepancy between this holding and the obviously related – and contradictory – ones regarding obscenity laws has been ignored by the legal minds overseeing Oregon’s laws. The result is a de facto prior restraint – restrictions that chill artistic expression and free speech before it is risked being made.
While prohibitions against the visual recording of actual sexual intercourse, oral and anal sex, sexual penetration and masturbation involving minors are precise and readily understandable, the other provisions of these laws are decidedly not so. First, they also criminalize the recording of the “simulated” conduct listed above. Second, they prohibit depictions of “sadistic or masochistic abuse,” another term susceptible of liberal interpretation; and these need not even involve nudity.
However, by far the most arbitrary and overbroad of these provisions is the one criminalizing the visual recording of the “lewd exhibition of the sexual or other intimate parts” of a minor. The first sensible objection to this subsection is that the term “sexual or other intimate parts” has no precise definition in statutory law. Attempting to fill this void, courts have ruled that “a body part is intimate if the person touched regarded it as intimate.” In other words, anything goes: a person’s foot could be construed as an “intimate part.” Conversely, a nudist would probably not consider her own breasts or buttocks as intimate – though your average “reasonable person” would consider them so despite her.
The second objection is to the vagueness of the word “lewd.” Again, no statutory definition exists. The courts have stepped in to define the term as “tending to cause sexual excitement.” But this could include anything. To a person inclined to be sexually attracted to minor teens, for example, the fully-clothed females innocuously featured in “Seventeen” magazine could “tend to cause sexual excitement.” To a person not so inclined (a rarity), the images of fully-unclothed adolescents in a legitimate, legal nudist publication would not. And what of pictures taken of unclad minors at a nude beach, or a hot spring, or in a sauna? These are not sexual situations. Where is the line between “lewd” and “innocent”? The troubling answer is that the line is wherever a police officer, prosecutor, judge or jury subjectively decides that it is – after the fact.
Further, the Class A felony Measure 11 “using a child in a display of sexually explicit conduct” does not limit itself to prohibiting pictures. It extends to the mere “observation” of “sexually explicit” or “lewd” conduct involving a minor. Which can include, for instance, inadvertently catching a glimpse of a 17-year-old flashing her breasts. (Activity which, contrarily, would not be considered public indecency; and which is, again, also a likely violation of equal protection.) Several years ago, the owner of a “lingerie modeling” business in Portland was charged with multiple counts of violating this law. He had inadvertently hired a 16-year-old who had fake ID; which reveals another worrisome aspect of this law: there is no defense for ignorance or mistake of age.
(There is, in some jurisdictions, a curious, unexplored loophole to these laws, though: Since emancipated and married minors are legally considered to be adults “in all matters civil and criminal,” it would, technically, not be against the law – in most places — for them to be employed as nude dancers, models in “adult” photographs or performers in sexually-explicit films, though, probably, the state would still try to prosecute. Note to Hugh Hefner: An enterprising adult entertainment entrepreneur may some day realize this and make a bundle by hiring these under-18 adults.)
There are other perplexities and absurdities emanating from this law. For example: A minor teen could take “lewd” pictures of herself, which would not be against the law, as it is a legal truism that “in no event shall the criminal defendant be considered a victim.” Yet anyone this young woman were to show the pictures to would be criminally liable – and she would be considered the “victim,”(even after she turns 18.) More broadly, it is strange that perfectly legal activity – such as a minor masturbating – becomes extremely illegal if another person views it. Also, minors of the same age could non-criminally have sex with each other, yet, technically, be prosecuted for watching, or photographing, themselves doing so. (Additionally, it reveals a curious sense of priorities that paying to have sex with a child is less severe a crime than paying to watch a minor teen simply remove her clothes.)
Moving along . . . Possession of a “visual recording of child sex conduct” (what some would call “child porn”) is a Class C felony, and – with the same word-for-word definition – also a Class A misdemeanor: “encouraging child sex abuse” in the second and third degrees, respectively. Though “developing, duplicating, publishing, printing, exchanging, displaying, financing” or otherwise disseminating such subjectively interpreted material is a Class B felony – “encouraging child sexual abuse in the first degree.” Luckily, proving ignorance or mistake of age of the minor(s) depicted in such visual recordings can be an affirmative defense.
Possessing such material that merely “appears to involve a child” and using it “to induce a child to participate or engage in sexually explicit conduct,” is a B felony. Possessing such material simply with the “intent” to do so is a C felony. (“Intent,” when not obvious, is manufactured by district attorneys.)
Fortunately, none of the laws mentioned in the last two paragraphs are mandatory minimums. Unfortunately, they are all registerable sex crimes.
(One issue arising from the above laws regards a criminal defendant’s absolute constitutional right to confront his accuser, or victim. How exactly prosecutors get away with prosecuting the possession and/or distribution of pictures of anonymous, unidentified alleged minors who cannot be located and presented in court, is curious. These are classed as person-to-person offenses, after all, so the “victim” is technically the minor who was photographed. That such prosecutions occur may simply be a result of inattentive defense attorneys and careless judges, and a challenge on this point might render such laws unenforceable. Also, some courts have ruled the state must prove such depicted persons are actually minors.)
There are a few more sex crimes which remain to be mentioned: “burglary, when committed with intent to commit” any sex crime (there’s that phantom “intent” again); “any attempt to commit” any sex crime (oddly, neither solicitation of nor conspiracy to commit a sex crime is classified as sex crimes, though both of these “inchoate crimes” could also be classified “attempting”), and “kidnapping in the second degree if the victim was under 18 years of age.” This last is a fascinating specimen.
Since an “attempt” to commit a sex crime is itself a sex crime, and (another charmingly vague term) “luring or enticing” a minor is considered attempted kidnapping, the following situation often arises: A high schooler (invariably female) alleges being approached by a man in a car and offered a ride – voila: attempted kidnapping of a minor, a B felony sex crime, punishable by up to ten years in prison. (So much for being a good Samaritan.)
After his term of incarceration, this man faces years of restrictive supervision, and a lifetime of registering as a sex offender. As part of this supervision he must, among other things: submit to random polygraph and urine testing; not frequent places where minors are likely to congregate, such as malls, fast-food restaurants, movie theatres, and parks (although a clever attorney recently challenged this provision, successfully arguing that “frequent” means “to attend regularly,” not just once, or now and then — and it’s bound to be re-written); not view “sexually stimulating materials related to the offender’s deviant sexual behavior” (applied over-broadly – and probably unlawfully – as a restriction against any nude or “pornographic” visual recordings); not “frequent” adult entertainment establishments; submit to plethysmograph testing – an Orwellian examination involving monitoring the response of one’s penis to the viewing of all manner of pictures, from out-and-out child pornography to innocuous images of nude teens of dubious age; to any other conditions as may individually be deemed appropriate, such as curfew, restrictions on an offender’s intimate relationships, employment, living quarters, wardrobe and grooming; GPS monitoring; maintenance of a driving log; random searches of one’s person, property and vehicle; completion of a “sex offender treatment program” – which requires, among other things, to say that one is guilty even when one is not, and to admit to an “offense cycle” that may not exist; not expressing any opinions deemed contrary to proper thinking; etc. In short, incarceration or fugitive status is preferable.
Registration requires him to fill out forms at a local law enforcement agency every year around his birthday, as well as whenever he changes residence or place of employment. Failure to do so is another felony – a sure-fire way to re-incarcerate sex offenders ad infinitum. [And now a federal, not state, offense: see The Adam Walsh Child Protection and Safety Act.] (Ten
years after one’s supervision ends, a person convicted, in a single case, of a Class C felony or misdemeanor sex offense can petition a judge for “relief from the reporting requirement.”)He may be designated as a “predatory sex offender” at the whim of a “supervisory authority,” a non-judicial body. This subjects him to the requirement of registering every 90 days, and “community notification” – the official terrifying of his neighbors through the posting of flyers and door-to-door police visits. This process helps ensure that a “sex offender” never fully re-integrates into society, making it virtually impossible to rent a place to live or to keep a job. It drives an already socially stigmatized person to the logical conclusion that only a life of crime or homelessness is open to him, and, reasonably, that society deserves contempt, not respect. This also serves the systemic purposes of creating identifiable scapegoats and providing an excuse to con citizens into supporting the burgeoning fascist police state. (A “predatory sex offender” is also subject to the C felony “Unlawful contact with a child” statute, prohibiting him from “knowingly contact[ing] a child [person under 18] with the intent to commit a crime or for the purpose of arousing or satisfying the sexual desires of the person or another person” – whatsoever that might mean; a law some legislators have proposed to extend to all adults.)
Basically, society believes that anything short of castration, lifelong imprisonment or execution is merciful to any “sex offender,” and more than he deserves (And several states have lately re-instated the death penalty for some sex crimes, which is presently unconstitutional.) Any person so labeled who has any dignity and strength has only a few courses open: to flee; to change identity; to commit suicide; to become an activist; or to strap an explosive to himself, walk into the nearest police department, DA’s office, courthouse or state legislature and martyr himself. (Welcome to the club, former governor Neil Goldschmidt – you’re a prime example of how not to act: a boisterous “Fuck off” to this state would have been more appropriate than a futile mea culpa.)
Furthermore, due to the eighteenth exception to Oregon’s hearsay law, no evidence other than an alleged victim’s statement is needed to charge, prosecute and convict anyone of a sex offense. The burden of proof has devolved entirely to “children (or women) would never lie about such awful things.” Most sex crime prosecutions are nothing more than “he said, she said” – a battle of credibility, something one loses immediately upon being accused of any sex crime.
So, to return to our high-schooler being offered a ride: She could completely manufacture the story and land an innocent man in prison. This is not infrequently reported in the news: For no other reason than to excuse her tardiness, a teen makes a false allegation which terrifies her community, causes the expenditure of much law enforcement resources, heightens sex crime hysteria, and, sometimes, results in the arrest and demonization of a hapless soul.
All of which leads one to wonder at the contradiction between, on the one hand, deeming minors to be too irresponsible and immature to handle the rights of adults, while, on the other, entrusting them with the unfettered power to unjustly destroy people’s lives. It can also cause one to speculate why it is that, if the “sexual abuse” of minor teens is viewed as being so prevalent (and not felonious in most other countries), it isn’t considered normative.
But those are questions for another time. For now, suffice it to say that no man is safe in the state of Oregon unless he is castrated, married, and accompanied at all times by credible witnesses of unimpeachable character, one of whom should be an attorney. Being rich can also help.Or he can simply leave the state as fast as he can run.
Other states’ and nations: sex laws: www.avert.org and www.ageofconsent.com
The Oregon Revised Statutes: www.leg.state.or.us/ors
By David G. Chandler, www.narsl.org
Copyright 2007 by the author.