State v. Ofodrinwa , 353 Or. 507 ( 2013 )

No. 20 April 25, 2013 507
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
EUGENE CHIMEZIE OFODRINWA,
Petitioner on Review.
(CC C080583CR; CA A139764; SC S059446)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 13, 2012; resubmitted
January 7, 2013.
Mary M. Reese, Senior Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for petitioner on review. With her on the brief was
Peter Gartlan, Chief Defender.
Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With him on the brief were John R. Kroger, Attorney
General, and Anna M. Joyce, Solicitor General.
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
*  Appeal from Washington County Circuit Court, Gayle A. Nachtigal, Judge.
241 Or App 214, 250 P3d 405 (2011).
508 State v. Ofodrinwa
Defendant, who was 21 years old at the time of the conduct at issue, was charged
with four counts of second-degree sexual abuse, which, under ORS 163.425(1)
(2005), occurs when a “person subjects another person to sexual intercourse *  * *
and the victim does not consent thereto.” The charges arose after defendant’s
confessed to the police that he had had sexual intercourse with his girlfriend (the
victim), who was 16 years old at that time, on several occasions over the previous
year. At trial, the state relied solely on the victim’s age to prove that she lacked the
capacity to consent. Defendant moved for judgment of acquittal, contending that
the phrase “does not consent” in ORS 163.425 refers only to lack of actual consent
and does not include instances in which the victim lacks the capacity to consent.
The trial court concluded that the phrase “does not consent” refers to both the lack
of actual consent and the lack of capacity to consent. The Court of Appeal affirmed,
relying on its decision in State v. Stamper, 197 Or App 413, 106 P3d 172, rev den,
339 Or 230 (2005). Held: The text and legislative history of the 1991 amendment to
ORS 163.425 demonstrate that phrase “does not consent” in ORS 163.425(1) refers
to both the lack of capacity to consent and the lack of actual consent.
The decision of the Court of Appeals and the judgment of the circuit court are
affirmed.
Cite as 353 Or 507 (2013) 509
KISTLER, J.
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.”
*
ORS 163.425(1) (2005).1 The issue in this case is what
the phrase “does not consent” means. Defendant argues
that it refers only to those instances in which the victim
does not actually consent; the state responds that it also
includes instances in which the victim lacks the capacity to
consent. The trial court agreed with the state and convicted
defendant of second-degree sexual abuse. The Court of
Appeals affirmed. State v. Ofodrinwa, 241 Or App 214, 250
P3d 405 (2011). We allowed defendant’s petition for review
and now affirm the Court of Appeals decision and the trial
court’s judgment.
On December 24, 2007, a Portland police officer
investigated a dispute between defendant and his girlfriend.
During that investigation, the officer learned that defendant
was 21 years old and that his girlfriend (the victim) was
16 years old. Defendant admitted to the officer that he had
had sexual intercourse with the victim on several occasions
during the previous year. Given that information, a grand
jury indicted defendant for four counts of second-degree
sexual abuse. Specifically, the indictment alleged that,
on four occasions “on or between December 11, 2006 to
December 24, 2007,” defendant “unlawfully and knowingly
subject[ed the victim] to sexual intercourse, [the victim] not
consenting thereto by reason of being under 18 years of age.”
Defendant waived his right to a jury trial, and the parties
tried the charges to the court.
At trial, the state relied primarily on defendant’s
statements to the officer to establish that defendant had
engaged in sexual intercourse with the victim. The state
presented no evidence to show that the victim had not
actually consented to sexual intercourse; it relied solely
on the victim’s age to prove that she lacked the capacity
to consent. See ORS 163.315(1)(a) (providing that persons
1
Because the conduct that gave rise to this case occurred between December 11,
2006 and December 24, 2007, ORS 163.425 (2005) applies. Unless otherwise
specified, citations are to the 2005 edition of the Oregon Revised Statutes.
510 State v. Ofodrinwa
“[u]nder 18 years of age” are “considered incapable of
consenting to a sexual act”). At the end of the state’s case,
defendant moved for a judgment of acquittal on two grounds.
First, he argued that the state had failed to corroborate
his confessions to the officer. Second, he argued that ORS
163.425 required proof that the victim had not actually
consented; he contended that the victim’s lack of capacity
to consent was not sufficient to prove a violation of that
statute.
The trial court found that the state had not
corroborated defendant’s confessions to three of the four
charges and acquitted him of those charges. The remaining
charge arose out of an incident that allegedly occurred
shortly after the victim’s sixteenth birthday. The trial court
ruled that the state had corroborated defendant’s confession
to that charge. Regarding defendant’s alternative argument,
it ruled that proof that the victim lacked the capacity to
consent because of her age was sufficient to prove that she
“d[id] not consent” within the meaning of ORS 163.425.
After denying defendant’s motion for judgment of acquittal
with regard to one charge, the trial court found him guilty
of that charge and entered judgment accordingly.
The Court of Appeals affirmed the trial court’s
judgment. It relied on its decision in State v. Stamper, 197
Or App 413, 106 P3d 172, rev den, 339 Or 230 (2005), for
the proposition that the victim’s lack of capacity to consent
was sufficient to prove that she “d[id] not consent” within
the meaning of ORS 163.425. See Ofodrinwa, 241 Or App
at 216. The Court of Appeals also concluded that the state
had corroborated defendant’s confession regarding the one
incident. Id. at 225. We allowed defendant’s petition for
review and asked the parties to focus on the first issue that
defendant raised—whether the phrase “does not consent”
in ORS 163.425 refers only to actual consent or whether it
also refers to the lack of capacity to consent. We limit our
discussion to that issue.
This court has identified a methodology for
construing statutes to determine the legislature’s intent.
See State v. Gaines, 346 Or 160, 206 P3d 1042 (2009)
(explaining that methodology). However, as the Court of
Cite as 353 Or 507 (2013) 511
Appeals observed in Stamper, “mechanical application” of
that methodology does not lead to a clear answer regarding
the meaning of ORS 163.425. 197 Or App at 426. Rather, as
the court reasoned in Stamper, “depending on which rules
[of construction] are given emphasis, different readings of
[ORS 163.425] may be justified.” Id. We agree with that
observation. In large part, the difficulty that the Court of
Appeals identified arises from the fact that, in enacting
and amending the statutes prohibiting sexual abuse, the
legislature has not always been completely consistent in the
way that it has viewed consent.
As explained more fully below, in enacting the
1971 Criminal Code, the legislature used the phrase “does
not consent” to refer to instances in which the victim does
not actually consent and also to instances in which the
victim lacks the capacity to consent. In 1979, the legislature
amended the sexual abuse statutes in a way that, at least
textually, suggests that the phrase “does not consent” applies
only to the lack of actual consent. In 1983, the legislature
again amended the sexual abuse statutes to add a provision,
which is now codified as ORS 163.425.2 Although the issue
is not free from doubt, the 1983 legislature appears to
have used the phrase “does not consent” in ORS 163.425
to refer only to the lack of actual consent. Finally, in 1991,
the legislature modified the sexual abuse statutes to create
three degrees of that crime and provided a defense to all
three degrees of that crime. In doing so, the legislature used
the phrase “does not consent” in ORS 163.425 to refer both
to the lack of the capacity to consent due to age and also to
the lack of actual consent.
Before we consider the effect of the 1991 amendment
on the 1983 amendment, we first describe the context that
preceded the 1983 amendment. We then discuss the 1983
amendment to the sexual abuse statutes. Finally, we consider
the meaning and effect of the 1991 amendment to the sexual
2
As discussed more fully below, the 1983 amendment initially provided an
additional ground for committing first-degree sexual abuse. See Or Laws 1983,
ch 564, § 1. In 1991, the legislature divided what had been first-degree sexual
abuse into first- and second-degree sexual abuse and reclassified what had been
second-degree sexual abuse as third-degree sexual abuse. See Or Laws 1991, ch
830, §§ 1-3.
512 State v. Ofodrinwa
abuse statutes on the 1983 legislature’s understanding of
the phrase “does not consent.”
I.  THE CONTEXT OF THE 1983 AMENDMENT
The context for interpreting a statute’s text includes
“the preexisting common law and the statutory framework
within which the law was enacted.” Klamath Irrigation
District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010)
(internal quotation marks omitted). In this case, that context
consists of the role that consent has played in defining
sexual offenses before 1971, in the 1971 Criminal Code, and
in the 1979 amendment to the second-degree sexual abuse
statute.
A.  Cases Before 1971
Before 1971, the issue of consent in sex crimes arose
primarily, if not exclusively, in interpreting the crime of
rape.3 From 1843 until 1969, the Oregon statute prohibiting
rape provided, with variations not material here, that
“[a]ny person over the age of 16 years who carnally knows
any female child under the age of 16 years, or any person who
forcibly ravishes any female, is guilty of rape[.]” See former
ORS 163.210 (1969); cf. General Laws of Oregon, Crim Code,
ch II, § 525, p 408 (Deady & Lane 1843-1872) (defining rape
in essentially the same way). Under that statute, sexual
intercourse constituted rape in two circumstances: (1) if the
defendant “forcibly ravishe[d]” the victim or (2) if the victim
lacked the capacity to consent because of age.
Textually, the pre-1971 rape statute did not require
a lack of consent if the state sought to prove that the
defendant had “forcibly ravishe[d]” the victim. The Oregon
courts, however, read a consent requirement into the
statute; they required the state to prove that the “act [had]
been committed forcibly and without the consent of the
woman.” State v. Risen, 192 Or 557, 560, 235 P2d 764 (1951);
accord State v. Gilson, 113 Or 202, 206, 232 P. 621 (1925).
3
Before 1971, the legislature prohibited sodomy but made that class of sexual
acts criminal without regard to the victim’s consent. See former ORS 167.040 (1969);
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal
Code, Final Draft and Report § 105 (July 1970). Also, there was no analogue to the
current sexual abuse statutes before 1971. As a result, before 1971, the issue of
consent in sex crimes arose primarily in connection with the rape statute.
Cite as 353 Or 507 (2013) 513
More specifically, the state had to show that the victim
had met the defendant’s force with genuine resistance. See
Risen, 192 Or at 560 (reasoning that “mere words” were not
sufficient to establish resistance; rather, resistance “must
be reasonably proportionate to [the victim’s] strength and
*  * opportunities”). If the state failed to prove genuine
*
resistance at any point during the act, then the jury could
infer that the victim had consented to it and that no rape
had occurred. Id. at 561.
Before 1971, the Oregon courts viewed an allegation
that the victim lacked the capacity to consent because of the
victim’s age as equivalent to an allegation that the defendant
had forced himself on the victim without her consent. See
State v. Lee, 33 Or 506, 510, 56 P. 415 (1899) (treating those
allegations as equivalent); State v. Horne, 20 Or 485, 486,
26 P. 665 (1891) (holding that allegations regarding forcible
compulsion were surplusage because the indictment alleged
that the defendant had sexual intercourse with a victim
under the age of consent). It follows that, before 1971, a lack
of actual consent and a lack of the capacity to consent were
equivalent ways of showing that the victim did not consent.
See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on
Criminal Law § 57, 408 (1972) (describing those two ways of
proving that the victim had not consented as equivalent).
B.  The 1971 Criminal Code
In 1971, the Oregon legislature undertook a
comprehensive revision of the criminal code. Among other
things, it revised the definition of rape, made consent a
defense to sodomy, and added a new crime, sexual abuse.4
See Or Laws 1971, ch 743, §§ 109-116. The legislature also
defined generally when a person will be “considered incapable
of consenting to a sexual act.” Id. § 105. That definition both
codified and refined the existing law. It provided that “[a]
person is considered incapable of consenting to a sexual act
if [the person] is: (1) [u]nder 18 years of age; or (2) [m]entally
defective; or (3) [m]entally incapacitated; or (4) [p]hysically
helpless.” Id.; see Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
4
Sexual abuse, as defined in the 1971 Criminal Code, prohibited certain
instances of nonconsensual sexual contact. Or Laws 1971, ch 743, §§ 115-116.
514 State v. Ofodrinwa
and Report § 105 (July 1970) (explaining the sources of that
definition).
The 1971 Criminal Code retained the understanding
of consent that had preceded it. For the purposes of sex
crimes, a victim who lacked the capacity to consent stood in
the same position as a victim who did not actually consent.
See Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 105 (July 1970). In defining when a person lacks the
capacity to consent, the drafters of the 1971 code explained
that “[l]ack of consent is the common denominator for all the
crimes proscribed in this article [defining sexual crimes].”
Id. They added that,
“[g]enerally speaking, a sexual act is committed upon
a person ‘without his [or her] consent’ in the following
instances: (1) when the victim is forcibly compelled to
submit; (2) when the victim is considered to be incapable of
consenting as a matter of law; and (3) when the victim does
not acquiesce in the actor’s conduct.”
Id. The drafters of the 1971 code thus viewed those three
situations as alternative ways of proving the same thing—a
lack of consent.
That proposition is perhaps most evident in the
definition of second-degree sexual abuse in the 1971 code.5
In defining that crime, the 1971 legislature used the phrase
“does not consent” to refer to both the lack of actual consent
and the lack of the capacity to consent. Specifically, section
115(1) of the 1971 code provided,
“A person commits the crime of sexual abuse in the second
degree if he subjects another person to sexual contact; and
“(a)  The victim does not consent to the sexual contact;
or
“(b  The victim is incapable of consent by reason of being
mentally defective, mentally incapacitated or physically
helpless.”
Or Laws 1971, ch 743, § 115(1). At first blush, it appears
that the legislature intended to distinguish between the
5
What the legislature classified as second-degree sexual abuse in 1971 was
later reclassified (and is currently classified) as third-degree sexual abuse.
Cite as 353 Or 507 (2013) 515
lack of actual consent in paragraph (a) and specified types
of the lack of capacity to consent in paragraph (b). However,
a defense to the crime of second-degree sexual abuse
made clear that the statutory phrase “does not consent” in
paragraph (a) also referred to the lack of capacity to consent
due to age.
Specifically, section 115(2) provided a defense to the
crime of second-degree sexual abuse if “the victim’s lack of
consent was due solely to incapacity to consent by reason
of being under 18 years of age[.]” Or Laws 1971, ch 743,
§ 115(2).6 In that circumstance, if the victim was more than
14 years old and the defendant was less than four years
older than the victim, then the defendant was not guilty of
second-degree sexual abuse. Id. That defense necessarily
rested on the premise that the phrase “does not consent”
in paragraph (a) of the 1971 second-degree sexual abuse
statute included “the victim’s *  * incapacity to consent by
*
reason of being under 18 years of age[.]”7
One other point is worth noting about the 1971
Criminal Code. The 1971 legislature departed from the
earlier statutory definition of rape by creating degrees
of that crime, which it distinguished primarily by the
circumstances evidencing a lack of consent. For instance,
the 1971 legislature defined first-degree rape, in part, as
sexual intercourse when “(a) [t]he [victim] is subjected to
forcible compulsion by the [defendant]; or (b) [t]he [victim]
is under 12 years of age[.]” Or Laws 1971, ch 743, § 111(1). It
defined second-degree rape as sexual intercourse when the
victim either is “incapable of consent by reason of mental
defect, mental incapacitation or physical helplessness” or
is “under 14 years of age.” Id. § 110(1). Finally, it defined
6
The legislature also provided a slightly different age-related defense for
second- and third-degree rape and second- and third-degree sodomy. Or Laws
1971, ch 743, § 108. That defense is codified as ORS 163.345.
7
The legislative history is consistent with the text of the 1971 second-degree
sexual abuse statute. The commentary to section 115(2) provided,
“The purpose of this defense is to exclude from criminal sanction certain
activity by adolescents, e.g., the ‘petting party’ between a 14, 15 or 16 year old
‘victim’ and another young though criminally responsible person of slightly
greater age. The age of criminal responsibility is 14 in the proposed Code.”
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal
Code, Final Draft and Report § 115(2) (July 1970).
516 State v. Ofodrinwa
third-degree rape as sexual intercourse when the victim
is under 16 years of age. Id. § 109(1). The 1971 legislature
accordingly identified different circumstances that
evidenced a lack of consent, not to distinguish the lack of
actual consent from the lack of the capacity to consent, but
to distinguish different degrees of a crime, all of which were
premised on a lack of consent however evidenced.8
C.  The 1979 Amendment to Second-Degree Sexual Abuse
In 1979, the Oregon Court of Appeals rejected an
argument that the phrase “does not consent” in the 1971
second-degree sexual abuse statute referred only to actual
consent. See State v. Landino, 38 Or App 447, 590 P2d 737,
rev den, 286 Or 449 (1979). The defendant in that case
had noted that second-degree sexual abuse, as defined in
the 1971 code, prohibited sexual contact if, as paragraph
(a) of that statute provided, the victim “does not consent”
or, as paragraph (b) provided, the victim “is incapable of
consent by reason of being mentally defective, mentally
incapacitated or physically helpless.” He reasoned that,
because the legislature had identified specific bases for
the lack of capacity to consent in paragraph (b), the phrase
“does not consent” in paragraph (a) referred only to a lack of
actual consent. The Court of Appeals disagreed, reasoning,
“[W]e construe ORS 163.415(1)(a) [(1971)] to apply
whether there is nonconsent in fact or as a result of
incapacity resulting from any of the four conditions listed
in ORS 163.315 [the statute defining when a person lacks
the capacity to consent]. The listing of three of those
circumstances in subsection (1)(b) is redundant.”
Id. at 451. The Court of Appeals accordingly held that,
because a person under the age of 18 lacks the capacity to
consent, see ORS 163.315, that person “does not consent”
within the meaning of the 1971 second-degree sexual abuse
statute. Landino, 38 Or App at 451.
After the Court of Appeals issued its decision and
while the defendant’s petition for review was pending in
8
The 1971 legislature also made the lack of consent an element of sodomy
and defined degrees of that crime that distinguished, as the legislature had done
for the crime of rape, among the different degrees of sodomy primarily on the
circumstances evidencing a lack of consent. See Or Laws 1971, ch 743, §§ 112-114.
Cite as 353 Or 507 (2013) 517
this court, the City of Springfield asked the legislature to
“validate the Court of Appeals interpretation” in Landino
by amending the second-degree sexual abuse statute to
specify that a lack of consent could be based on the victim’s
age. See Minutes, House Committee on Judiciary, HB 2559,
May 8, 1979, 2 (explaining the reason for the requested
amendment). The specific means that the city proposed (and
that the legislature ultimately enacted) of “validat[ing]” the
Court of Appeals decision was to add the victim’s age to
paragraph (b) of the second-degree sexual abuse statute as
another basis for the victim’s being “incapable of consent.”
See id.
Judged solely by its text, the 1979 amendment
cut against rather than validated the Court of Appeals’
reasoning in Landino. Adding the victim’s age to paragraph
(b) of the 1971 second-degree sexual abuse statute implied
that paragraph (b) defined those instances in which a
person lacked the capacity to consent (age and mental and
physical incapacity). It also implied that the phrase “does
not consent” in paragraph (a) was limited to the lack of
actual consent, contrary to the reasoning in Landino.
The legislative history of the 1979 amendment looks
in a different direction and is consistent with an intent to
adhere to the Court of Appeals’ reasoning in Landino. See
Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or
406, 415-16, 908 P2d 300 (1995) (considering the legislative
history of related statutes as context), modified on recons,
325 Or 46, 932 P2d 1141(1997). In discussing the proposed
amendment, a member of the House Committee on Judiciary
expressed concern that amending paragraph (b) to include
age as a basis for the victim’s incapacity to consent would
“confir[m] that this was not [currently] in the statute.”
Minutes, House Committee on Judiciary, HB 2559, May 8,
1979, 3. Another member replied that “he isn’t sure that [the
proposed bill would require] that construction especially if
the committee record is clear enough on the point.” Id. After
that discussion, the committee approved the bill and sent it
to the House with a “do pass” recommendation. Id.
When the bill reached the Senate, some members of
the Senate Committee on Judiciary described the proposed
518 State v. Ofodrinwa
amendment as a “technical” one that would make explicit
what the statute already implied—that a person who lacks
the capacity to consent due to age “does not consent.” See
Minutes, Senate Committee on Judiciary, HB 2559, May
31, 1979, 5-6. At a later hearing, one senator explained that
the second-degree sexual abuse statute, as it then existed,
applied to victims who were between 14 and 18 years of age
but did not apply to anyone under 14 years of age. Minutes,
Senate Committee on Judiciary, HB 2559, June 20, 1979, 9.9
He reasoned that the amendment was necessary to prohibit
sexual contact with victims younger than 14 years of age.
Id. With that explanation, the Senate committee approved
the amendment and sent it to the Senate with a “do pass”
recommendation. Id. The history of the 1979 amendment
suggests that the legislature understood that the phrase
“does not consent” referred to the lack of capacity to consent,
as well as to the lack of actual consent. In that respect, the
history and the text of the 1979 amendment provide differing
perspectives on the meaning of the 1983 amendment.
II.  THE 1983 AMENDMENT
In 1983, the legislature enacted what is now
codified as ORS 163.425. See Or Laws 1983, ch 564, § 1.
As initially passed, the 1983 amendment did not create a
stand-alone crime; rather, it provided an additional ground
for committing first-degree sexual abuse. Id. As amended in
1983, the first-degree sexual abuse statute provided,
“A person commits the crime of sexual abuse in the first
degree when that person:
“(a)  Subjects another person to sexual contact; and
“(A)  The victim is less than 12 years of age; or
“(B)  The victim is subjected to forcible compulsion by
the actor; or
“(b)  Subjects another person to sexual intercourse
* * * and the victim does not consent thereto.”
Id. (boldface text added in 1983). In 1983, first-degree sexual
abuse was a Class C felony. Id.
9
The senator apparently viewed the phrase “does not consent” as referring to
those victims who did not actually consent and also to those victims to whom the
affirmative defense applied (victims between 14 and 18 years of age).
Cite as 353 Or 507 (2013) 519
In determining the 1983 legislature’s intent in using
the phrase “does not consent,” we begin with the text of that
amendment. Defendant argues that the legislature’s use of
the auxiliary verb “does” rather than “can” or “cannot” shows
that the phrase does not refer to a victim’s lack of capacity
to consent. He reasons that the phrase “does not consent”
refers to an act that the actor is capable of performing; it
does not refer to an act that the actor lacks the capacity to
perform. Although that is a plausible interpretation of the
text, it is not the only plausible interpretation.
As a general matter, the verb “consent” means “to
express a willingness (as to accept a proposition or carry out
a particular action) : give assent or approval : AGREE[.]”
Webster’s Third New Int’l Dictionary 482 (unabridged ed
2002). A person who is incapable of giving consent stands
in the same position as one who elects not to give it; in
each case, the person “does not consent.” We cannot find in
the text of the 1983 amendment a definitive answer to the
question whether “does not consent” is limited to persons
who have the capacity to consent, as defendant argues, or
whether it also includes persons who lack the capacity to
consent, as the state argues.
The context provides additional insight, but the
answer that the context suggests varies depending on the
context on which one focuses. The 1971 Criminal Code and
the cases that preceded it clearly point in favor of the state’s
interpretation of the phrase “does not consent.” Both this
court’s decisions before 1971 and the 1971 Criminal Code
viewed the lack of capacity to consent and lack of actual
consent as equivalent. Indeed, as discussed above, the 1971
legislature used the phrase “does not consent” in the second-
degree sexual abuse statute to refer both to a victim who
does not actually consent and also to a victim who does
not consent because the victim is underage. Read in light
of that context, the phrase “does not consent” in the 1983
amendment refers to the lack of the capacity to consent as
well as the lack of actual consent.
The text of the 1979 amendment to the second-
degree sexual abuse statute points in a different direction.
As explained above, the 1979 legislature amended
paragraph (b) of the second-degree sexual abuse statute
520 State v. Ofodrinwa
to list age as one reason why a victim lacks the capacity
to consent. As a result of that amendment, the text of the
second-degree sexual abuse statute implied that the phrase
“does not consent” in paragraph (a) of that statute referred
only to a lack of actual consent. However, as also explained
above, the history of the 1979 amendment points in the
other direction. One aspect of the 1979 amendment thus
supports defendant while another supports the state.
An additional contextual clue provides support
for defendant’s position. In 1983, sexual intercourse with
a person under 16 years of age constituted third-degree
rape and was a Class C felony. ORS 163.355 (1983). Sexual
intercourse with a person under 18 years of age constituted
contributing to the sexual delinquency of a minor and was
a Class A misdemeanor. ORS 163.435 (1983). If, as the state
argues, the phrase “does not consent” in the 1983 amendment
referred to the victim’s lack of capacity to consent because
of age, then the 1983 amendment would impose the same
punishment for engaging in sexual intercourse with a
person under the age of 18 that third-degree rape imposed
on engaging in sexual intercourse with a person under 16.10
Additionally, if the state’s interpretation of the
1983 amendment were correct, then that amendment would
prohibit the same conduct (sexual intercourse with a person
under 18 years of age) that the crime of contributing to the
sexual delinquency of a minor did, but the two crimes would
impose different penalties.11 To be sure, nothing prevents
the legislature from enacting duplicative or overlapping
statutes, but we ordinarily hesitate to attribute that intent
to the legislature. At a minimum, that context causes us to
question whether the 1983 legislature departed from the
understanding of “does not consent” expressed in the 1971
Criminal Code and adopted instead the meaning of “does
not consent” suggested by the text of the 1979 amendment
to second-degree sexual abuse.
10
In 1983, both third-degree rape and first-degree sexual abuse were Class C
felonies. See ORS 163.355 (1983) (third-degree rape); ORS 163.425 (1983) (first-
degree sexual abuse).
11
In 1983, first-degree sexual abuse was a Class C felony while contributing
to the sexual delinquency of a minor was a Class A misdemeanor. See ORS 163.435
(contributing to the sexual delinquency of a minor).
Cite as 353 Or 507 (2013) 521
Although the text and context of the 1983
amendment do not point in a single direction, the legislative
history of that amendment provides stronger support for
defendant’s position. Briefly stated, the legislative history
shows that the sponsors of Senate Bill (SB) 483, the bill that
became the 1983 amendment to first-degree sexual abuse,
sought to fill a gap that existed when a defendant had
engaged in sexual intercourse without the victim’s consent
but the state could not prove forcible compulsion.12 Tape
Recording, House Committee on Judiciary, SB 483, June 30,
1983, Tape 485, Side A (statement of Peter Sandrock).
Peter Sandrock, one of the proponents of the bill,13 told
the committee that, in that circumstance, the jury should
acquit the defendant of first-degree rape (a Class A felony)
and convict the defendant of second-degree sexual abuse (a
Class A misdemeanor). See id. He explained that, to fill that
gap, SB 483 added a new ground for proving first-degree
sexual abuse (a Class C felony); specifically, it criminalized
sexual intercourse without the victim’s consent. Id.
Sandrock told the committee that, in addition to
reaching those instances in which the state had proved that the
victim had not consented but had not proved forcible compulsion,
“We’re probably reaching the sort of behavior * * * in many
cases of someone who abuses a position of authority to
enter into sexual intercourse with someone. I can think,
for example of the, the rogue cop who takes roadside bail,
so to speak. The victim does not consent to the intercourse
having been pulled over for some alleged traffic violation,
but she is not subjected to any form of forcible compulsion.
The officer does not threaten her with a gun, there are no
implied threats. It is merely his position that causes her
to succumb to the intercourse. The employer situation in
which the victim communicates [a] lack of consent, but is
not subjected to any form of forcible compulsion.”
Id.
12
Except as noted below, the discussions of SB 483 in both the House
and Senate committees were essentially the same. Rather than repeat those
discussions, we have focused on the discussions before the House Committee on
Judiciary.
13
Sandrock was the district attorney for Benton County and took the lead in
both the House and Senate hearings in explaining why the bill was necessary and
what it would cover.
522 State v. Ofodrinwa
Sandrock observed that the bill did not define
the phrase “does not consent.” Id. at Tape 486, Side A.
He explained, however, that “there has been no problem
prosecuting cases of sex abuse in the second degree when
the jury has been either given a dictionary definition or
been told to figure out what no consent means.” Id. He
told the House Committee on Judiciary that he and a
representative of the defense bar had agreed on a definition
of “without consent,” although he thought that no definition
was necessary. When asked what the agreed-upon definition
was, Sandrock testified,
“ Does not consent’ means that a person did not presently
‘
and voluntarily agree by word or conduct to engage in the
sexual contact at issue and that the defendant knew at the
time of the sexual contact that the person did not so agree.”
Id.
When asked why the Senate had not included that
definition in SB 483, Sandrock speculated that it “may have
been overlooked.” Id. At that point, Senator Hendrickson14
told the House committee that, among other things, the
Senate had viewed the definition as redundant. Id. She
explained that, as one of the sponsors of the bill, she had
no objection to the definition but thought it unnecessary.
Id. She also noted that adding the definition to SB 483
would require the Senate to concur in the amendment and
expressed a concern that amending the bill at that stage
of the legislative session might derail the bill’s enactment.
With that discussion, the House Committee on Judiciary
approved SB 483 without adding the definition of “does
not consent” and sent the bill to the House with a “do pass”
resolution. The House passed the bill, as the Senate had.
In large part, the legislative history supports
defendant’s interpretation of the phrase “does not consent.”
When asked what the phrase meant, Sandrock defined it as
meaning the lack of actual consent.15 Similarly, in describing
14
Senator Hendrickson had sponsored the bill and appeared with Sandrock
before the House committee in support of it.
15
Ordinarily, the failure to enact legislation, such as a proposed definition, does
not provide persuasive evidence of the legislature’s intent. Berry v. Branner, 245
Cite as 353 Or 507 (2013) 523
the “sort of behavior” that the bill would reach, Sandrock
identified situations in which the victim did not actually
consent but there was no forcible compulsion. Finally, in
explaining the problem the bill sought to remedy, Sandrock
told both committees that the bill filled a gap in the statutes
when the state could not prove forcible compulsion but
could prove that the victim had not consented. The absence
of consent to which Sandrock referred was the absence of
actual consent, not the lack of capacity to consent.16
The legislative history does not all look in one
direction, however. When the bill was in front of the
Senate Committee on Judiciary, the counsel for the Senate
committee explained that there was no need to define the
phrase “does not consent” because that phrase was a “term
of art” that had been construed in the context of the second-
degree sexual abuse statute. See Tape Recording, Senate
Committee on Judiciary, SB 483, June 7, 1983, Tape 189,
Side B (statement of Nina Johnson). As of 1983, only one
appellate decision, State v. Landino, had interpreted the
phrase “does not consent” in the second-degree sexual abuse
statute. As noted, the Court of Appeals had held in Landino
that the phrase “does not consent” refers to the lack of
capacity to consent due to age as well as to the lack of actual
consent. It is possible to infer from counsel’s explanation
that the 1983 legislature declined to enact the proposed
definition of “does not consent” because it found Landino’s
interpretation of that phrase sufficient. That inference,
however, runs counter to the rest of the legislative history of
the 1983 amendment.
Or 307, 311, 421 P2d 996 (1966). In this case, however, SB 483 contained a phase
“does not consent” that the legislature did enact and Sandrock told the legislature
what that phrase meant. In these circumstances, Sandrock’s explanation of the
phrase’s meaning bears on the legislature’s intent.
16
Additionally, Sandrock told the Senate Committee on Judiciary that “[t]he
reference to ‘the victim does not consent’ [in SB 483] does not include a lack of
capacity to consent—those situations in which the [victim] lacks the capacity to
consent to a sexual act are defined elsewhere in the rape code.” Tape Recording,
Senate Committee on Judiciary, SB 483, Apr 7, 1983, Tape 85, Side B. As the
Court of Appeals explained in Stamper, that statement is ambiguous. See 197 Or
App at 424. On the one hand, Sandrock said that the phrase “does not consent”
does not include a lack of capacity to consent. On the other hand, he qualified
that statement by noting that a victim’s lack of capacity to consent was defined
elsewhere, suggesting that those definitions might bear on the absence of consent.
524 State v. Ofodrinwa
The text, context, and history of the 1983
amendment permit different inferences regarding the
legislature’s intent in enacting the phrase “does not
consent.” The legislative history of the amendment provides
the greatest support for defendant’s position, but the text
and context provide conflicting signals. We conclude that we
need not resolve those conflicting signals to decide this case.
Even if the 1983 legislature understood that the phrase
“does not consent” refers only to the lack of actual consent,
the legislature amended the sexual abuse statutes again
in 1991. As explained below, we conclude that the 1991
legislature understood, as the 1971 legislature had, that the
phrase “does not consent” refers to the lack of the capacity
to consent due to age, as well as the lack of actual consent.
As we also explain below, the 1991 legislature’s enactment
is the last word on the subject and, as such, is dispositive.
III.  THE 1991 AMENDMENT
In 1991, the legislature enacted a bill that focused on
the crime of sexual abuse and made essentially two changes
to that crime. See Or Laws 1991, ch 830. The first change
was to divide the two degrees of sexual abuse into three
degrees of that crime.17 As a result of the 1991 amendment,
what had been second-degree sexual abuse became third-
degree sexual abuse. Id. § 1. The amendment also modified
the crime of first-degree sexual abuse by reclassifying the
1983 amendment (which had provided one way of proving
first-degree sexual abuse) as second-degree sexual abuse.
Id. § 2. Finally, the amendment modified the remaining
elements of first-degree sexual abuse. Id. § 3.18
The second change to the crime of sexual abuse
involved the defenses to that crime. Before 1991, the
legislature had provided an age-related defense to what was
17
The amendment also made conforming changes in related laws. See Or
Laws 1991, ch 830, §§ 5-8. Additionally, it directed the Oregon Criminal Justice
Council to report on “the general profile of sex offenders by offense and the types
of sentences being imposed for each offense.” Id. § 10.
18
The 1991 amendment provided that subjecting a victim under 14 years of
age (as opposed to under 12 years of age) to sexual contact constituted first-degree
sexual abuse. Or Laws 1991, ch 830, § 3. It also added a new ground for first-degree
sexual abuse, intentionally causing a person under 18 years of age to touch certain
parts of an animal for sexual purposes. Id.
Cite as 353 Or 507 (2013) 525
then second-degree sexual abuse but had not provided a
similar defense to the crime of first-degree sexual abuse. See
ORS 163.415 (1989) (former second-degree sexual abuse);
ORS 163.425 (1989) (former first-degree sexual abuse). The
1991 amendment repealed the age-related defense that was
specific to second-degree sexual abuse and provided an age-
related defense for the reclassified crimes of first-, second-,
and third-degree sexual abuse. Or Laws 1991, ch 830, §§ 1,
4. Specifically, the 1991 legislature amended ORS 163.345
to provide,
“In any prosecution under ORS 163.355, 163.365, 163.385,
163.395, 163.415 [third-degree sexual abuse], 163.425
[second-degree sexual abuse], or section 3 of this 1991
Act [first-degree sexual abuse] in which the victim’s lack of
consent was due solely to incapacity to consent by reason of
being less than a specified age, it is a defense that the actor
was less than three years older than the victim at the time
of the alleged offense.”
See id. § 4 (boldface text added by 1991 amendment).
Read together, sections two and four of the 1991
amendment provide that, when a defendant is charged with
engaging in sexual intercourse with a victim who “does not
consent” and “the victim’s lack of consent was due solely to
incapacity to consent by reason of being less than a specified
age, it is a defense that the actor was under three years older
than the victim at the time of the alleged offense.” Only one
conclusion can be drawn from the text of those two sections:
The 1991 legislature understood that the phrase “does not
consent” in the crime of second-degree sexual abuse refers to
a victim whose “lack of consent was due solely to incapacity
to consent by reason of being less than a specified age” as well
as to a victim who does not actually consent.19 Otherwise, the
legislature’s decision to provide an age-related defense to
the newly reclassified crime of second-degree sexual abuse
would serve no purpose. See State v. Cloutier, 351 Or 68, 98,
19
The age-related defense to second-degree sexual abuse in the 1991
amendment evidences the legislature’s intent in precisely the same way that
the age-related defense to second-degree sexual abuse did in the 1971 Criminal
Code. Both defenses make clear that the phrase “does not consent” is not limited
to situations in which the victim does not actually consent but also includes
situations in which the lack of consent results from the victim’s age.
526 State v. Ofodrinwa
261 P3d 1234 (2011) (observing that “an interpretation that
renders a statutory provision meaningless should give us
pause”).
The legislative history of the 1991 amendment
demonstrates that the legislature purposefully provided an
age-related defense to ORS 163.425. As initially proposed,
House Bill (HB) 2542, the bill that became the 1991
amendment, divided the two degrees of sexual abuse into
three degrees of that crime and made conforming changes
in related laws. See HB 2542 (Jan 31, 1991). That version of
the bill retained the age-related defense for what became
third-degree sexual abuse but did not provide an age-
related defense for the newly reclassified crimes of first-
and second-degree sexual abuse. Id. At a work session on
the bill, the members of the House Subcommittee on Crime
and Corrections considered extending the defense to third-
degree sexual abuse to the other degrees of that crime but did
not do so. See Tape Recording, HB 2542, House Committee
on Judiciary, Subcommittee on Crime and Corrections, Feb
19, 1991, Tape 27, Side B. Accordingly, HB 2542, as it passed
out of the House, provided an age-related defense only for
third-degree sexual abuse. See HB 2542 (A-Engrossed).
When the Senate Committee on Judiciary considered
the bill, an amendment was proposed that repealed the
age-related defense to third-degree sexual abuse and made
the slightly different age-related defense in ORS 163.345
applicable to all three degrees of sexual abuse.20 Counsel for
the Senate committee explained:
“Under existing law, it is a defense to the misdemeanor
abuse offense that the victim was less than four years
younger than the perpetrator and was more than 14 years
old. No similar provision applies to abuse in the second
degree as created by this measure, even though that
defense is available for rape in the second and third degrees
and for sodomy in the second and third degrees. So, for
the purposes of consistency, an amendment was prepared
and included here that would apply that three-year age
20
Initially, the age-related defense applied to persons who were no more than
four years older than the victim. Or Laws 1971, ch 743, § 115(2). As modified in
1991, it applied to persons who were no more than three years older than the
victim. Or Laws 1991, ch 830, § 4.
Cite as 353 Or 507 (2013) 527
difference defense [in the statute providing an age-related
defense for rape and sodomy] to both abuse 3 under the new
scheme and abuse 2. So, it actually—with respect to [the
crime of third-degree sexual abuse], it would change [the
existing defense] from four to three years, but otherwise
expand it and make it applicable to persons charged with
both offenses.”
Tape Recording, Senate Committee on Judiciary, HB
2542, June 10, 1991, Tape 224, Side A (statement of Ingrid
Swenson).21 A representative from the Oregon State Sheriffs’
Association expressed his agreement with the amendment,
and the committee voted to send the bill, as amended, to
the Senate with a “do pass” recommendation. Id. The Senate
passed the bill, as amended.
Because the House and Senate versions of the bill
differed, a conference committee was convened to reconcile
the two versions of the bill. The first difference that the
committee discussed was the extension of an age-related
defense to first- and second-degree sexual abuse. See Tape
Recording, Conference Committee, HB 2542, June 28,
1991, Tape 1, Side A (statement of committee counsel Holly
Robinson). After the counsel for the Conference Committee
identified how the two versions differed, Representative
Johnson explained his understanding of the difference:
“What you’re saying is that [the Senate] expanded the
concept that, if you’re within a certain number of years of
the other person, it’s not the same illegal act *  * that it
*
might be if you were 20 years older.”
Id. (statement of Representative Johnson). He added that
the bill, as amended in the Senate, expanded the defense
to both first-degree sexual abuse and “what’s now sex
abuse in the second degree.” After Representative Johnson
spoke, the other representatives from the House said that
they had “no problem with that” change. Id. (statements of
Representatives Mannix and Sunseri). With that discussion,
the House concurred in the Senate amendment. Id.
21
Counsel’s explanation is not completely consistent with the text of the
proposed amendment. The proposed amendment made the defense applicable to
all three degrees of sexual abuse.
528 State v. Ofodrinwa
The legislative history of the 1991 amendment
demonstrates that the legislature purposefully chose to
provide an age-related defense for the newly reclassified
crimes of first-, second-, and third-degree sexual abuse. Not
only does that follow from the Senate Judiciary committee’s
discussion of the amendment, but the Conference Committee
concurred in the Senate version of HB 2542. In so doing,
the members of the Conference Committee expressly
recognized that extending an age-related defense to second-
degree sexual abuse would make it legal for persons within
a specified age range to engage in acts that would otherwise
be illegal—i.e., acts that would otherwise be illegal because
the victim was under a specified age. Implicit in that
recognition is the proposition that the phrase “does not
consent” in the second-degree sexual abuse statute includes
instances in which “the victim’s lack of consent [i]s due
solely to incapacity to consent by reason of being less than
a specified age[.]” See Or Laws 1991, ch 830, § 4 (making
the age-related defense applicable to second-degree sexual
abuse).
That proposition is also explicit in the text of
sections two and four of the 1991 amendment. As noted,
section two of that amendment provides that the crime of
second-degree sexual abuse occurs when the victim “does
not consent” to sexual intercourse, and section four of that
amendment provides a defense “[i]n any prosecution under
* * * ORS 163.425 * * * in which the victim’s lack of consent
was due solely to incapacity to consent by reason of being
less than a specified age[.]” Or Laws 1991, ch 830, §§ 2, 4.
The defense that the legislature provided to ORS 163.425
rests explicitly on the proposition that a victim’s lack of
consent may, in some prosecutions under ORS 163.425,
derive from the victim’s lack of capacity to consent due to
age. That defense is integrally connected to the elements
of ORS 163.425 and informs their meaning. Cf. Wetherell
v. Douglas County, 342 Or 666, 678, 160 P3d 614 (2007)
(explaining that we should not look at one subsection of a
statute in a vacuum but should construe “each part together
with the other parts in an attempt to produce a harmonious
whole”).
Cite as 353 Or 507 (2013) 529
Defendant advances three contrary arguments.
He argues initially that the 1991 legislature’s intent is not
relevant to determining what a phrase enacted in 1983
means. This is not a case, however, in which a subsequent
legislature merely expressed its opinion about the meaning
of a previously enacted statute. Cf. DeFazio v. WPPSS, 296
Or 550, 561, 679 P2d 1316 (1984) (explaining that “[t]he
views legislators have of existing law may shed light on a
new enactment, but it is of no weight in interpreting a law
enacted by their predecessors”).22 Nor is it a case in which
legislative inaction is invoked to determine the meaning
of an earlier statute. Cf. Holcomb v. Sunderland, 321 Or
99, 105, 894 P2d 457 (1995) (explaining that subsequent
legislative inaction did not provide a basis for determining
an earlier legislature’s intent). Rather, this is a case is which
the 1991 amendment added a defense to the crime of second-
degree sexual abuse that, as a matter of the statute’s text
and legislative history, rests on the proposition that “does
not consent” in ORS 163.425 includes instances “in which
the victim’s lack of consent was due solely to incapacity to
consent by reason of being less than a specified age[.]” Or
Laws 1991, ch 830, § 4. Cf. Fifth Avenue Corp. v. Washington
Co., 282 Or 591, 597-98, 581 P2d 50 (1978) (recognizing that
amendments that materially change the terms of an earlier
statute change the meaning of that statute to the extent
that change “is expressly declared or necessarily implied”).
This court considered a similar issue in State v.
Swanson, 351 Or 286, 266 P3d 45 (2011). The question in
Swanson was whether the definition of the term “crime,”
which the 1971 legislature enacted as part of a comprehensive
revision of the substantive criminal code, changed the
meaning of an earlier procedural statute that governed a
jury’s consideration of lesser-included “crimes.”23 In deciding
that issue, this court assumed that, as initially used in the
procedural statute, the term “crime” was broader than the
22
Because the later legislation in DeFazio did not necessarily change the
earlier legislation, the court regarded the later legislation as a later legislature’s
expression of an opinion about an earlier statute. See 296 Or at 561.
23
The legislature had enacted the procedural statute as part of the Deady
Code, more than 100 years before the enactment of the 1971 revision of the
substantive criminal code. Swanson, 351 Or at 290-91.
530 State v. Ofodrinwa
definition enacted as part of the 1971 substantive criminal
code. Id. at 292. The court concluded, however, that the
1971 definition effectively narrowed the term “crime” in the
earlier enacted procedural statute. Id. at 295-96. That was
so even though the legislature had not specifically modified
the procedural statute governing the jury’s consideration
of lesser-included crimes. Id. The court reasoned, from the
context of the legislature’s discussions in amending the
procedural code in 1973, that it had intended generally that
references to “crime” in the procedural statutes would refer
to the 1971 definition of that term. Id.
The effect of the 1991 amendment on the meaning
of the phrase “does not consent” in the 1983 amendment is
more direct than the effect of the 1971 definition of crime
was on the earlier enacted procedural statute in Swanson.
In this case, the 1991 legislature both reclassified the crime
of second-degree sexual abuse and, in the same bill, added a
defense to that crime that rests on the proposition that the
phrase “does not consent” refers to the lack of capacity to
consent due to age, as well as to the lack of actual consent.
Even if the 1983 legislature had a narrower understanding
of the phrase “does not consent,” the defense that the 1991
legislature specifically provided to ORS 163.425 informs the
meaning of the elements of that offense. See Wetherell, 342
Or at 678 (explaining that the various parts of a statute
should be construed together). The 1991 amendment is the
legislature’s last word on the subject and, as such, controls
the meaning of the phrase “does not consent” in ORS 163.425.
Defendant suggests, alternatively, that the 1991
legislature may have enacted the defense because it was
uncertain whether ORS 163.425 applied to victims who
lacked the capacity to consent due to their age. Defendant
does not point to anything in the text of the 1991 amendment
or its legislative history to support that proposition, nor
does any exist. Indeed, the only legislative history that
bears on the issue shows that the 1991 legislature enacted
the defense to ORS 163.425 because it understood that, for
persons within a specified age range, the defense made legal
what would otherwise have been illegal due to the victim’s
age.
Cite as 353 Or 507 (2013) 531
Defendant argues finally that “interpreting
ORS 163.425 to permit prosecutions based on [a] victim’s
incapacity to consent *  * would create conflict among the
*
different provisions of ORS 163.345 [the statute providing
for age-related defenses to various sexual offenses].” In
support of that argument, defendant identifies three
“conflicts” resulting from adopting the state’s interpretation
of the phrase “does not consent.” He notes initially that ORS
163.345 does not provide an age-related defense to first-
degree rape when the victim is under 12 years old. He reasons
that, if the state’s interpretation of “does not consent” is
correct, then a defendant who engages in sexual intercourse
with an 11-year-old victim would have a defense to a charge
of second-degree sexual abuse but not to a charge of first-
degree rape. That apparent anomaly, defendant contends,
supports his conclusion that the phrase “does not consent”
in ORS 163.425 refers only to the lack of actual consent.
Defendant’s argument rests on a misperception of
the legislature’s classification system for sexual offenses.
The age-related defense in ORS 163.345 also applies to
second- and third-degree rape, which prohibit respectively
sexual intercourse with victims “under” the age of 14 and
16. See ORS 163.345 (defense); ORS 163.365 (second-degree
rape); ORS 163.355 (third-degree rape). The defense in
ORS 163.345 will shield a defendant who engages in sexual
intercourse with an 11-year-old victim from a charge of
second-degree rape or third-degree rape but not from a
charge of first-degree rape.24 Not only does the “conflict”
that defendant perceives apply equally to second- and
third-degree rape, which explicitly turn on the victim’s lack
of capacity to consent due to age, but the answer to that
perceived conflict lies in the prosecutor’s charging discretion.
If a person engages in sexual intercourse with a person
under the age of 12, then the prosecutor can charge that
crime as first-degree rape. Not only does that charge avoid
24
When using age as the basis for classifying degrees of sexual offenses, the
legislature has provided that persons “under” a specified age lack the capacity to
consent—“under 14 years of age,” for example, in second-degree rape, or “under
16 years of age” in third-degree rape. See ORS 163.365 (second-degree rape); ORS
163.355 (third-degree rape). As a result of that drafting technique, the same act—
intercourse with an 11-year-old child—can be charged as first-degree rape, second-
degree rape, third-degree rape, and second-degree sexual abuse.
532 State v. Ofodrinwa
a possible age-related defense, but it is also consistent with
the legislature’s classification scheme for sexual offenses,
which uses the victim’s age to distinguish among degrees of
a crime.
In our view, interpreting the phrase “does not
consent” in the second-degree sexual abuse statute to
include the lack of capacity to consent due to the victim’s
age does not result in a conflict with other sexual offenses,
as defendant argues. Rather, it aligns the crime of second-
degree sexual abuse with other sexual offenses that the
legislature has classified according to the victim’s age.25
Defendant’s arguments provide no persuasive reason for
saying that the 1991 amendment does not control our
resolution of this case. We accordingly conclude that the
phrase “does not consent” in ORS 163.425 refers to the
victim’s lack of capacity to consent due to age, as well as to
the lack of actual consent.
The decision of the Court of Appeals and the
judgment of the circuit court are affirmed.
25
We have considered the other two conflicts that defendant has identified
and find that they are not persuasive for some of the same reasons that we have
discussed above.