No means No and Know

Well, it only took 42 years, but today for the first time since Oregon's criminal code was revised in 1971, we now have a legal definition for the term "does not consent" in the context of a prosecution for the crime of sexual abuse in the second degree.

Sexual abuse in the second degree is loosely defined as engaging in sexual relations with another person when the other person does not consent thereto. Sexual abuse in the second degree is a non-Measure 11 crime and carries with it a presumptive sentence upon conviction of anywhere from probation to 45 months in prison.

In today's case, the defendant was convicted of having sexual relations with a 16-year-old. There was no evidence in the case that the victim did not otherwise agree to the acts. Rather, the government argued that by virtue of the victim being under the age of 18 she was legally incapable of giving any consent.

The defense argued that while other sexual assault statutes under Oregon law referred specifically to situations where a victim was incapable of consent by way of some incapacity such as age, intoxication, or mental condition, the sexual abuse II statute was silent on such issues and merely stated it was a crime when the victim "does not consent." According to the defense, this meant that the sexual abuse II statute was limited to situations in which the victim did not actually consent as opposed to where the victim was legally incapable of giving consent.

The Oregon Supreme Court ruled that the term "does not consent" as used in the law covers both situations: when the victim does not actually consent and/or where the victim is legally presumed to be incapable of consent.

For those Oregonians who are sexually active, the case stands as a caution. You are responsible for both yourself and your partner. While we all know that "no means no" and while it may be relatively easy to discern the age of your partner, it sometimes may be tougher to gauge their level of intoxication or current mental state. If their consent is affected by alcohol, prescription medication, controlled substances, lack of sleep - anything essentially, you may open yourself up to prosecution for an extremely serious offense. Be safe out there and be aware. Know of course that no means no, but that Oregon law says no in some circumstances where your partner may say yes.


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