Sex-related Offenses

SEXUAL ABUSE, SEXUAL PREDATOR, SODOMY, AND RAPE – OREGON

General Statement for Misdemeanor Sex Crime

A misdemeanor arrest for a sex crime generally results in either a citation or release agreement, which tells you the date of your court appearance. At the first court appearance, called an arraignment, you will be formally notified of the charge(s), a second court date is set, and conditions of bail or release may be discussed.

General Statement for Felony Sex Crime

A felony sex crime arrests generally results in being booked into custody and being given a court date on the following business day. Measure 11 and Measure 73 set mandatory minimum sentences for many class A and Class B sex crimes; and bail is generally set very high.

  • It is crucial that you follow any release conditions, appear at all court dates, and have no contact with the complaining witness.
  • A law enforcement polygraph test should be avoided. Your attorney may suggest a private polygraph examination.
  • You may be asked to partake in a psychological assessment called a psycho-sexual evaluation. This evaluation looks at criminal history, police reports, interviews, and various psychological tests to determine an individual’s risk to the community. Always confer with your attorney before agreeing to anything.

Penalties

  • If the sex crime falls under Measure 11 or Measure 73 guidelines then the penalties are severe and carry a mandatory minimum sentence. (See Measure 11)
  • Prison sentences are generally followed by extended periods of parole
  • For lesser sex crimes you may face a jail term rather than a prison term. Upon release you may face a period of probation with certain conditions such as sex offender treatment programs and regular appointments with a supervising officer, and there may be other requirements specific to your case.
  • General sex crime convictions are not expugnable. Findings of innocence or dismissal may result in a sealed record of arrest

Registering as a Sex Offender

In general people found guilty of a sex crime do have to register as a sex offender. Often the registration requirement is lifetime and may require reporting to a local law enforcement agency.

Oregon Sex Crime Charges (Rape)

Oregon Revised Statute / Charge Offense Level How Committed Sentence Range
ORS 163.355 / Rape in the 3rd degree Class C Felony The person has sexual intercourse with another person under 16 years of age From probation with jail – to a prison term
ORS 163.365 / Rape in the 2nd degree Class B Felony Measure 11 Offense 63 The person has sexual intercourse with another person who is under 14 years of age Significant prison sentence
ORS 163.375 / Rape in the 1st degree Class A Felony Measure 11 Offense A person has sexual intercourse with another and:

  • The victim is subjected to forcible compulsion; or
  • The victim is under 12 years of age; or
  • The victim is under 16 years of age and is the person’s sibling, the person’s child, or the spouse’s child; or
  • The victim is incapable of consent by reason of mental defect, mental incapacitation, or physical helplessness
100-300 months in prison

Oregon Sex Crime Charges (Sodomy)

Oregon Revised Statute / Charge Offense Level How Committed Sentence Range
ORS 163. 385 / Sodomy in the 3rd degree Class C felony The person engages in deviate sexual intercourse with another person under 16 years of age; or causes that person to engage in deviate sexual intercourse From probation with jail – to a prison term
ORS 163.395 / Sodomy in the 2nd degree Class B Felony Measure 11 Offense The person engages in deviate sexual intercourse with another person under 14 years of age; or causes that person to engage in deviate sexual intercourse Significant prison sentence
ORS Sodomy in the 3rd degree Class A Felony Measure 11 Offense The person engages in deviate sexual intercourse and:

  • The victim is subjected to forcible compulsion by the actor; or
  • The victim is under 12 years of age
  • The victim is under 16 years of age and is the person’s sibling, the person’s child, or the spouse’s child; or
  • The victim is incapable of consent by reason of mental defect, mental incapacitation, or physical helplessness
 

Oregon Sex Crime Charges (Unlawful Sexual Penetration)

Oregon Revised Statute / Charge Offense Level How Committed Sentence Range
ORS 163.408 / Unlawful Sexual Penetration in the 2nd degree Class B Felony Measure 11 Offense The person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth of the actor; and the victim is under 14 years of age Significant prison sentence
ORS 163.411 / Unlawful Sexual Penetration in the 1st degree Class A Felony Measure 11 Offense The person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth of the actor; and

  • The victim is subject to forcible compulsion; or
  • The victim is under 12 years of age; or
  • The victim is incapable of consent by reason of mental defect, mental incapacitation, or physical helplessness
100 – 300 months in prison

Oregon Sex Crime Charges (Sexual Abuse)

Oregon Revised Statute / Charge Offense Level How Committed Sentence Range
ORS 163.415 / Sexual Abuse in the 3rd degree Class A Misdemeanor The person subjects another person to sexual contact; and

  • The victim does not consent to the sexual contact; or
  • The victim is incapable of consent by reason of being under 18 years of age; or

For purposes of arousing or gratifying the sexual desire of the person or another person, the person intentionally propels any dangerous substance at a victim without the consent of the victim

Probation and possible jail time
ORS 163.425 / Sexual Abuse in the 2nd degree Class C Felony
  1. The person subjects another person to sexual intercourse, deviate sexual intercourse, or penetration of the vagina, anus, or penis with any object other than the penis or the mouth of the actor and the victim does not consent; or
  2. The person violates ORS 163.415(1)(a)(B); the person is 21 years of age or older; and at any time before the commission of the offense, the person was the victim’s coach as defined in ORS 163.426
From probation with jail – to possible prison term
ORS 163.427 / Sexual Abuse in the 1st degree Class B Felony Measure 11 Offense The person subjects another person to sexual contact and:

  • The victim is less than 14 years of age; or
  • The victim is subjected to forcible compulsion by the actor; or
  • The victim is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless; or

The person intentionally causes a person under 18 years of age to touch or contact the mouth, anus, or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person

Significant prison sentence

Oregon Sex Crime Charges (Custodial Sexual Misconduct)

Consent of the other person to sexual contact is not a defense to prosecution.

Oregon Revised Statute / Charge Offense Level How Committed Sentence Range
ORS 163.454 / Custodial Sexual Misconduct in the 2nd degree Class A Misdemeanor
  1. The person engages in sexual contact with another person knowing the other person is:
    • In the custody of a law enforcement agency following arrest;
    • Confined or detained in a correctional facility;
    • Participating in an inmate or offender work crew or work release program; or
    • On probation, parole, post-prison supervision or other form of conditional or supervised release; and
  2. Is employed by or under contract with the state or local agency that:
    • Employs the officer who arrested the other person
    • Operates the correctional facility in which the other person is confined or detained;
    • Is responsible for supervising the other person in a work crew, or work release program, or on probation, parole, post-prison supervision, or other form of conditional or supervised release, or
    • Engages the other person in work or on the job training pursuant to ORS 412.354(1)
Probation and possible jail time
ORS 163.452 / Custodial Sexual Misconduct in the 1st degree Class C Felony
  1. The person engages in sexual intercourse or deviate sexual intercourse with another person or penetrates the vagina, anus, or penis of another person with any object other then the penis or the mouth of the actor knowing that the other person is:
    • In the custody of a law enforcement agency following arrest;
    • Confined or detained in a correctional facility;
    • Participating in an inmate or offender work crew or work release program; or
    • On probation, parole, post-prison supervision or other form of conditional or supervised release; and
  2. Is employed by or under contract with the state or local agency that:
    • Employs the officer who arrested the other person
    • Operates the correctional facility in which the other person is confined or detained;
    • Is responsible for supervising the other person in a work crew, or work release program, or on probation, parole, post-prison supervision, or other form of conditional or supervised release, or
    • Engages the other person in work or on the job training pursuant to ORS 412.354(1)
From Probation with jail – to possible prison term

Sexual Misconduct (ORS 163.445)

  • A person commits the crime of sexual misconduct if the person engages in sexual intercourse or deviate sexual intercourse with an unmarried person under 18 years of age.
  • Class C Misdemeanor
  • Oregon does not use terms such as “statutory rape

Age of Consent – OR

  • 18 years
  • Under Oregon law, a person is considered incapable of consenting to a sexual act if the person is:
    • Under 18 years of age; or
    • Mentally defective; or
    • Mentally incapacitated; or
    • Physically helpless
  • Exception: Age spread defense
    • It may be a defense in some sex crimes where lack of consent is based solely on being under age, but the parties ages are within three years of each other

Important Terms and Definitions (ORS 163.305 et passim)

Rape

  • Involves sexual intercourse, occurring upon penetration
  • Emission not required

Sodomy

  • “Deviate sexual intercourse”
  • Sexual contact between persons consisting of contact between the sex organs of one person and the mouth or anus of another (anal and oral sex)


Unlawful Sexual Penetration

  • The act of penetrating the sex organs of another with an object, not the mouth or penis. (A finger is considered an object)

Sexual Abuse

  • Generally, touching the intimate parts of another (not Sexual Abuse in the 2nd degree)

Forcible Compulsion

  • To compel by
    • Physical force; or
    • A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped

Mentally Defective

  • The person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person

Mentally Incapacitated

  • The person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense

Physically Helpless

  • A person is unconscious or for any other reason is physically unable to communicate unwillingness to an act

Sexual Contact

  • Any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of wither party

RAPE, SEXUAL VIOLENT PREDATOR, SODOMY, AND CUSTODIAL SEXUAL MISCONDUCT; SEX OFFENDER REGISTRATION – WASHINGTON STATE

General Statement

Sex offenders are more likely to be given prison sentences than other types of offenders in Washington State. On average, sex offenders are incarcerated longer than any other class of offenders except those convicted of homicide.1Since 2006 legislation, Washington law has incorporated longer sentences, sentencing enhancements for crimes committed with sexual motivation, and 25 year mandatory minimum sentencing for certain offenders.

Sentencing

  • Two and Three Strikes Laws
    • In 1993, the voters passed Initiative 593, making certain felonies a “strike” under a new “three-strikes” law. The law requires a life sentence without possibility of release upon conviction of the third strike.
    • In 1996, the legislature passed a “two-strikes” law to impose a life sentence without the possibility of release on an offender convicted of two or more serious sex crimes.
  • Determinate Plus Sentencing
    • Applies to any person convicted of a first “two-strikes” sex offense committed after September 1, 2001; and
    • Applies to any person who has a prior first “two-strikes” sex offense and who is then convicted of any other felony sex offense committed after September 1, 2001.
    • A determinate-plus offender is subject to the jurisdiction of the Indeterminate Sentence Review Board (ISRB)
      • Prior to the expiration of an offender’s minimum term, the ISRB will evaluate the offender.
      • Upon expiration of the minimum term, the ISRB must release the offender unless the offender is likelier than not to commit a sex offense.
      • If not released, ISRB must re-evaluate at least every five years.
      • If released, the offender is placed under community custody status for remainder of maximum term.
        • The minimum term is generally equal to term under the standard range in the sentencing grid.
        • The maximum term is the statutory maximum sentence for the crime:
          1. Life for Class A felonies
          2. 10 years for Class B felonies
          3. 5 years for Class C felonies
  • Mandatory 25-Year Sentences
    • 25 year sentence is applied when the victim is under 15 years of age, or a vulnerable adult, and the crime is Indecent liberties with forcible compulsion, Kidnapping 1 with sexual motivation, Rape 1 or Rape 2 with forcible compulsion.
  • Community Protection Act: Civil commitment of sexually violent predators.
    • Only sex offenders who are found beyond a reasonable doubt to meet the legal definition of a sexually violent predator may be civilly committed.
    • A sexually violent predator is defined as:
      • A person who has been convicted of, found not guilty by reason of insanity, or found to be incompetent to stand trial for a crime of sexual violence; and
      • Suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined to a secure facility.
    • “Predatory” is defined as situations where the perpetrator:
      • Was unknown to the child 24 hours before the offense;
      • Established the relationship with the child for the purpose of participating in the sexual conduct;
      • Has a special relationship with the child such as teacher/student, coach/athlete, or church elder/member.
    • Sexually violent predators are committed to the custody of DSHS. Most are confined at the Special Commitment Center on McNeil Island.
    • By law, the state must provide continuing treatment to offenders who have been civilly committed and offenders are entitled to an annual evaluation hearing.

Washington Sex Crime Charges (Rape)

Revised Code of Washington / Charge Offense Level How Committed Sentence Range
RCW 9A.44.040 / Rape in the 1st degree Class A Felony The person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

  • Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
  • Kidnaps the victim; or
  • Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious; or
  • Feloniously enters into the building or vehicle where the victim is situated
Seriousness level XI; depending upon the offender score: 90 – 185 months (about 8 – 15 years)
RCW 9A.444.050 / Rape in the 2nd degree Class A Felony The person engages in sexual intercourse with another person:

  • By forcible compulsion;
  • When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated
  • When the victim is a person with a developmental disability and the perpetrator is a person who is not married to the victim and who:
    • Has supervisory authority over the victim; or
    • Was providing transportation, within the course of his or her employment, to the victim at the time of the offense;
  • When the perpetrator is a health care provider, the victim is a client or patient, the sexual intercourse occurs during a treatment session, consultation, interview, or examination
  • When the victim is a resident of a facility for persons with mental disorder of chemical dependency and the perpetrator is not married to the victim and has supervisory authority of the victim
  • When the victim is a frail elder or vulnerable adult and the perpetrator is not married to the victim and who:
    • Has a significant relationship with the victim; or
    • Was providing transportation, within the course of his or her employment, to the victim at the time of the offense
Serious level X; depending upon offender score: 66 – 150 months (about 6 – 13 years)
RCW 9A.44.060 / Rape in the 3rd degree Class C Felony The person engages in sexual intercourse with another person not married to the perpetrator:

  • Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or
  • Where there is a substantial threat of unlawful harm to property rights of the victim
Seriousness level V; depending upon offender score: 9 months – 5 years

Defense: Rape 2 (RCW 9A.44.050(d))

It is an affirmative defense that the defendant must prove by a preponderance of the evidence (more likely than not) that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not for the purpose of treatment.

Washington Sex Crime Charges (Sexually Violating Human Remains)

Revised Code of Washington / Charge Offense Level How Committed Sentence Range
9A.44.105 RCW Class C Felony The person has sexual intercourse or sexual contact with a dead human body Varies depending upon circumstances2

Definitions as used in this section

  • Sexual intercourse:
    • Has its ordinary meaning and occurs upon penetration, however slight; and
    • Any penetration of the vagina or anus however slight, except when such penetration is accomplished as part of a procedure authorized or required under chapter 68.50 RCW or other law; and
    • Any act of sexual contact between the sex organs of a person and the mouth or anus of a dead human body
  • Sexual contact:
    • Any touching by a person of the sexual or other intimate parts of a dead human body done for the purpose of gratifying the sexual desire of the person

Washington Sex Crime Charges (Voyeurism)

Revised Code of Washington / Charge Offense Level How Committed Sentence Range
RCW 9A.44.115 Class C Felony The person, for the purpose of arousing or gratifying the sexual desire of any person, knowingly views, photographs, or films:

  • Another person without that person’s knowledge and consent while the person being view, photographed, or filmed is in a place where he or she would have reasonable expectation of privacy; or
  • The intimate areas of another person with that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place
See above

Definitions as used in this section

  • Intimate areas:
    • Any portion of a person’s body or undergarments that is covered by clothing and intended to be protected from public view
  • To Photograph or film:
    • The making of a photograph, motion picture film, videotape, digital image, or any other recording or transmission of the image of a person
  • Place where he or she would have a reasonable expectation of privacy:
    • A place where a reasonable person would believe that he or she could disrobe in privacy. Without being concerned that his or her undressing was being photographed or filmed by another; or
    • A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance

Washington Sex Crime Charges (Custodial Sexual Misconduct)

*Consent of the victim is not a defense to prosecution under this section

Revised Code of Washington / Charge Offense Level How Committed Sentence Range
RCW 9A.44.160 / Custodial Sexual Misconduct in the 1st degree Class C Felony The person has sexual intercourse with another person; and

  • The victim is a resident of a state, county, or city adult or juvenile correctional facility, including but not limited to jails, prisons, detention centers, or work release facilities, or is under correctional supervision; and
  • The perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision; or
  • The victim is being detained, under arrest, or in custody of a law enforcement officer and the perpetrator is a law enforcement officer
See above
RCW 9A.44. 170 / Custodial Sexual Misconduct in the 2nd degree Gross Misd. The person has sexual contact with another person; and

  • The victim is a resident of a state, county, or city adult or juvenile correctional facility, including but not limited to jails, prisons, detention centers, or work release facilities, or is under correctional supervision; and
  • The perpetrator is an employee or contract personnel of a correctional agency and the perpetrator has, or the victim reasonably believes the perpetrator has, the ability to influence the terms, conditions, length, or fact of incarceration or correctional supervision; or
  • The victim is being detained, under arrest, or in custody of a law enforcement officer and the perpetrator is a law enforcement officer
Varies

Sodomy

Despite repeal of the sodomy law, Washington continues to recognize common-law crimes; and case law supporting the common-law reception statute shows that a prosecutor choosing to do so can bring charges against consensual anal sex in the state.3

Registration of Sex Offenders (RCW 9A.44.130)

The procedures, definitions, and penalties associated with the registration of sex offenders and kidnapping offenders changed in 2011. (See 5203-S.SL).

Relief from Duty to Register (RCW 9A.44.142)

  • Under some limited circumstances the superior court may grant a petition to not register as a sex offender
  • Under certain circumstances, when a person has been deemed to be sufficiently rehabilitated the court may determine removal from the sex offender registry is warranted.

Failure to Register (RCW 9A.44.132)

  • Failure to register as a sex offender is a class C felony
  • Failure to register as a sex offender on two or more prior occasions is a class B felony
  • Failure to register for a sex offense other than a felony sex offense is a gross misdemeanor
  • Failure to register for a felony kidnapping offense is a class C felony
  • Failure to register for a kidnapping offense that is not a felony offense is a gross misdemeanor

Other Important Terms and Definitions

  • Kidnapping:
    • The crimes of kidnapping in the 1st degree, kidnapping the 2nd degree, and unlawful imprisonment, as defined in chapter 9A.40 RCW, where the victim is a minor and the offender is not the minor’s parent;
    • Any offense that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a kidnapping offense under this subsection; and
    • Any federal or out-of-state conviction for: an offense for which the person would be required to register as a kidnapping offender while residing in the state of conviction; or, if not required to register in the state of conviction, an offense that under the laws of this state would be classified as a kidnapping offense under this subsection, unless a court in the person’s state of conviction has made an individualized determination that the person should not be required to register

  1. www.leg.wa.gov/Senate/Committees/HSC/…/SexOffenderLawPolicyWA
  2. For each current offense, the intersection of the column defined by the Offender Score and the row defined by the Offense Seriousness Level determines the standard sentence range. Alternatively, the same range is produced for individual offenses on the Offense Reference Sheets (Section III). The court can sentence anywhere within this range. In those cases where the presumptive sentence exceeds the statutory maximum sentence for the crime, the statutory maximum sentence is the presumptive sentence (9.94A.420 RCW)
  3. http://www.glapn.org/sodomylaws/sensibilities/washington.htm

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