State v. Ofodrinwa

• Decision Date: 25 April 2013
• Docket Number: (CC C080583CR; CA A139764,SC S059446).
• Citation: 353 Or. 507,300 P.3d 154
• Parties: STATE of Oregon, Respondent on Review, v. Eugene Chimezie OFODRINWA, Petitioner on Review.
• Court: Oregon Supreme Court

353 Or. 507
300 P.3d 154

STATE of Oregon, Respondent on Review,
v.
Eugene Chimezie OFODRINWA, Petitioner on Review.

(CC C080583CR; CA A139764; SC S059446).

Supreme Court of Oregon,
En Banc.

Argued and Submitted Jan. 13, 2012.
Resubmitted Jan. 7, 2013.
Decided April 25, 2013.

On review from the Court of Appeals.^*

[300 P.3d 155]

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 was John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

KISTLER, J.

[353 Or. 509]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 P.3d 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. SeeORS 163.315(1)(a) (providing that persons [353 Or. 510]“[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 P.3d 172,rev. den.,339 Or. 230, 119 P.3d 790 (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

[300 P.3d 156]

meaning of ORS 163.425. See Ofodrinwa, 241 Or.App. at 216, 250 P.3d 405. The Court of Appeals also concluded that the state had corroborated defendant's confession regarding the one incident. Id. at 225, 250 P.3d 405. 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 P.3d 1042 (2009) (explaining that methodology). However, as the Court of [353 Or. 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, 106 P.3d 172. 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 [353 Or. 512]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 P.3d 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

[300 P.3d 157]

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 formerORS 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 P.2d 764 (1951); accord State v. Gilson, 113 Or. 202, 206, 232 P. 621 (1925). [353 Or. 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, 235 P.2d 764 (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, 235 P.2d 764.

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...