State v. Gilbreath

ORS 163.411 provides that a person commits unlawful sexual penetration in the first degree if the person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth no “sexual or injurious intent” is required.

Defendant was convicted of unlawful sexual penetration of a three-year-old while applying diaper cream. Defendant assigned error to the court's determination that a conviction for unlawful sexual penetration, under ORS 163.411, does not require proof that the defendant acted with a “sexual or injurious intent.” Defendant argued ORS 163.411 requires a sexual or ill intent which the trial court found there was no evidence for. The State argued no such intent is required. ORS 163.411 provides that a person commits unlawful sexual penetration in the first degree if the person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth. The Court of Appeals found that no “sexual or injurious intent” was required to satisfy the statute because, ORS 163.411 omits any sexual or injurious intent as to the conduct of the element. There is also no indication of any legislative intent to require proof of intent. Because there is no mental state in the statute, it defaults to “knowingly.” The defendant’s interpretation would have required the Court of Appeals to deviate from the standards by which it normally interprets statutes. AFFIRMED.