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Oregon Criminal Defense Attorney on the Capacity to Consent

Recently, the Oregon Supreme Court heard an appeal which gave clarity to who can or cannot consent in regards to sexual assault. In State v. Ofodrinwa, the Court heard an appeal of a man convicted of second-degree sexual assault. He was convicted based on his admission to a police officer that he had had sexual relations with his girlfriend, 16 at the time, while he was 21. The state did not offer any evidence that the girl did not consent but rather contended that due to her age, she lacked the capacity to consent. The defendant and his Oregon criminal defense attorney argued that such capacity was not what the legislature intended based on the history of the law. They also argued that the use of the phrase “does not consent” meant an explicit lack of consent rather than a lack of capacity. The Court disagreed an upheld this defendant’s conviction.

Oregon Criminal Defense Attorney on History of Sexual Assault Law

The Court looked at the procedural history to determine the intent of the legislature in enacting this sexual assault law. In 1971, Oregon underwent a major overhaul of its criminal code including enacting second-degree sexual assault. In examining that law, sexual assault occurs without consent in the following ways:

  • The victim is forcibly compelled to submit
  • The victim is incapable of consenting as a matter of law
  • The victim does not acquiesce in the actor’s conduct

The way that law was written, an Oregon criminal defense attorney could argue that it was not enough for a victim to simply be underage for a lack of consent to occur. The legislature amended that law a series of times, most recently in 1991, adding a new charge of third degree assault and explicitly adding age of consent as a reason a person is incapable of consenting. The defense argued that law was ambiguous and conflicting and his client’s charges should therefore be dismissed. The Court did not find that argument compelling and rejected that defense.

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