State v. Ofodrinwa

Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.

Defendant was convicted of second-degree sexual abuse for "unlawfully and knowingly subjecting the victim to sexual intercourse, the victim not consenting thereto by reason of being under 18 years of age," in violation of ORS 163.425. The Court of Appeals affirmed, and this case was heard by the Oregon Supreme Court to determine the issue of what the phrase "does not consent" means. Defendant argued that the phrase refers only to those instances in which the the victim did not actually consent; the State responded that it also includes instances in which the victim lacked capacity to consent due to age. To reach its determination, the Court looked at the legislative history of ORS 163.425 in order to determine the legislature's meaning of the elements of that offense and, specifically, to determine its understanding of the phrase "does not consent." Because the 1991 amendment to ORS 163.425 was the legislature's last word on the subject, the Court gave it controlling deference and, because the 1991 legislature purposefully provided an age-related defense to ORS 163.425, the Court decided that, in addition to the lack of actual consent, the phrase "does not consent" also refers to the victim's lack of capacity to consent due to age. Affirmed.