State v. Nygard

“[T]he force that is sufficient to ‘compel’ one person to submit to or engage in a sexual contact against his or her will may be different from that which is sufficient to compel another person to do so.” State v. Marshall, 350 Or 208, 226, 253 P3d 1017 (2011).

On appeal, Defendant challenged convictions of first-degree unlawful sexual penetration (Count 7) and attempted first-degree rape, arguing the State failed to prove that he used “forcible compulsion” and the trial court erred in its application of a sentence to Count 7.  Defendant argued that because of the medical condition of the victim, which caused an inability of controlled leg movement, manipulation of the victim to engage in consensual sexual contact was necessary, and therefore did not rise to the level of “forcible compulsion.”  The State replied that even if the force used “was a necessary predicate to the sexual conduct,” it was not inherent in the conduct.  “[T]he force that is sufficient to ‘compel’ one person to submit to or engage in sexual contact against his or her will may be different from that which is sufficient to compel another person to do so.” State v. Marshall, 350 Or 208, 226, 253 P3d 1017 (2011).  The Court applied Marshall, which established (1) it is necessary that the physical force is dissimilar from “the simple movement and contact inherent” in sexual behaviors, and (2) a causal connection must exist between that force and the resulting contact.  The Court found that Defendant employed “forceable compulsion” because manipulation of the victim’s legs to allow for sexual contact was unpleasant for the victim, out of victim's control, and against victim's will.  The Court found forcible compulsion in Count 7, however, the sentence ordered was plain error because it exceeded the mandated statutory minimum sentence permissible. Reversed and remanded.