State v. Landino, 78-3439
| Decision Date | 20 February 1979 |
| Docket Number | No. 78-3439,78-3439 |
| Citation | 38 Or.App. 447,590 P.2d 737 |
| Parties | STATE of Oregon, Appellant, v. Michael LANDINO, Respondent. ; CA 12027. |
| Court | Oregon Court of Appeals |
David L. Atkinson, Asst. Dist. Atty., Eugene, argued the cause for appellant. With him on the brief was J. Pat Horton, Dist. Atty., Eugene.
Kenneth A. Morrow, Eugene, argued the cause for respondent. With him on the brief was Morrow & McCrea, P. C., Eugene.
Before SCHWAB, C. J., and THORNTON, TANZER and BUTTLER, JJ.
The trial court sustained defendant's demurrer to an indictment charging him with sexual abuse of a "female seventeen years of age," and the state appeals. The defendant's theory was that the indictment failed "to allege that the victim did not consent or that the victim was incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless as required by the statute." ORS 163.415(1) defines the crime:
The state contends that the allegation that the victim is under 18 years of age is sufficient to allege lack of consent because, under ORS 163.315, a minor is incapable of giving consent. That section provides:
If the victim lacks legal capacity to consent, it is unnecessary to allege that the victim did not actually consent. See LaFave and Scott, Criminal Law, § 57, p. 408 (1972). Thus, an allegation that the victim is a minor has the effect of an allegation that there is no consent.
Defendant argues that ORS 163.415 may not be so applied because it contains its own definition of incapacity to consent separate from the general definition in ORS 163.315. Subsection (1)(b) lists three forms of incapacity to consent, omitting incapacity due to minority from the four forms listed in ORS 163.315. Defendant further argues that it was an intentional omission, that subsection (1)(b) is limited to its terms, and that subsection (1)(a) refers only to nonconsent in fact by a victim who is legally capable of consent. If we accept this interpretation, there would be no crime of sexual abuse in the second degree of a minor who gives actual consent.
In determining the meaning of a criminal statute we are guided by ORS 161.025(2), which directs that we eschew mechanical rules of statutory construction and, instead, that we construe a statute according to "the fair import of its terms, to promote justice and to effect the purposes" of the criminal code.
The intent of the drafters was to describe a crime to which the consent of a minor victim is no defense. This is clear from the Commentary:
"The effect of the draft is to provide that consent by a person deemed incapable of consenting to a sexual act would not be a defense to a prosecution for either rape, sodomy, sexual abuse or sexual misconduct, whereas consent by a person not deemed incapable of consenting to a sexual act would be a good defense to a prosecution for those crimes. * * * " Commentary, Proposed Oregon Criminal Code, Final Draft and Report, § 105, p. 106 (July 1970).
That all four types of legal incapacity set out in ORS 163.315 were intended to apply to all sexual offenses is clear:
The legislative intent to prohibit sexual abuse of consenting minors is also...
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U.S. v. Beltran-Munguia
...but was legally incapable of giving it. See id. at 179; State v. Mezick, 109 Or.App. 563, 820 P.2d 849, 850 (1991); State v. Landino, 38 Or.App. 447, 590 P.2d 737, 739 (1979). ORS section 163.315 delineates four types of legal incapacity that apply to all sexual offenses listed in the Orego......
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...is incapable of consent for the listed reasons — which, however, did not include the age of the victim. Nevertheless, in State v. Landino, 38 Or.App. 447, 590 P.2d 737,rev. den., 286 Or. 449 (1979), we concluded that the phrase "[t]he victim does not consent" necessarily includes incapacity......
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...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 P.2d 737,rev. den., 286 Or. 449 (1979). The defendant in that case had noted that second-degree sexual abuse, as defined in the 1971 c......
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...minority has the effect of an allegation that there is no consent with regard to all sexual offenses charged. State v. Landino, 38 Or.App. 447, 590 P.2d 737 (1979). The Landino court quoted the drafters of the revised Oregon criminal code as The effect of the draft is to provide that consen......