State v. Woodley

• Decision Date: 30 August 1988
• Citation: 306 Or. 458,760 P.2d 884
• Parties: , 57 USLW 2211 STATE of Oregon, Petitioner on Review, v. Rick WOODLEY, Respondent on Review. TC 86-173-CR; CA A41196, SC S34898.
• Court: Oregon Supreme Court

Page 884

760 P.2d 884

306 Or. 458, 57 USLW 2211

STATE of Oregon, Petitioner on Review, v. Rick WOODLEY, Respondent on Review.

TC 86-173-CR; CA A41196, SC S34898.

Supreme Court of Oregon In Banc.

Argued and Submitted May 5, 1988.

Decided Aug. 30, 1988.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With her on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Donald D. Diment, Jr., Diment, Billings & Walker, Eugene, argued the cause for respondent on review.

LINDE, Justice.

Oregon's Criminal Code makes it a crime to subject another person to unconsented sexual contact, ORS 163.415, and it defines "sexual contact" as

"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 either party."

ORS 163.305(6). Defendant was indicted for "touching the thigh area and between [the victim's] breasts" without her consent. He was convicted of attempted sexual abuse. On appeal, he argued that the indictment did not charge a crime and that the court erred in instructing the jury. The Court of Appeals reversed the conviction on the first of these grounds, State v. Woodley, 88 Or.App. 493, 746 P.2d 227 (1987), and we allowed the state's petition for review. Because we reverse the conviction only on the second ground, the jury instruction, we remand the case to the circuit court for a new trial.

The Court of Appeals has wrestled with ORS 163.305(6) in several cases. State v. Turner, 33 Or.App. 157, 575 P.2d 1007, rev. den. 282 Or. 537 (1978), State v. Buller, 31 Or.App. 889, 571 P.2d 1263 (1977), State v. Pagel, 16 Or.App. 412, 518 P.2d 1037, rev. den., cert. den. 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1974). The difficulty is how the phrase "intimate parts" should be applied. To meet the constitutional argument that the term is too vague and susceptible to divergent applications by factfinders, the Court of Appeals settled on treating the identification of "intimate areas" as a question of law. The court held that they did not include the "thigh area" and "between the breasts" and, therefore, that the indictment did not charge a crime. 88 Or.App. at 500, 746 P.2d 227.

In protecting "intimate areas" of the human body, the statute invokes individual and cultural standards, and perhaps also the social psychology of group decision by a jury asked to agree on what is "intimate" while reacting to the circumstances of one case. No area of the anatomy is intrinsically intimate, for instance, to an X-ray camera. The question is whose sense of intimacy matters. Is the perception that of the person touched, of the person who touches, of a third person such as a parent or bystander? Is it that of the legislature, of some identifiable community, or of the factfinder at trial?

The question is not new. It arises whenever the meaning of a legal standard is made to depend on personal reactions or social assumptions. The answers differ with the laws at issue. In determining whether a law created a "crime" for constitutional purposes, we held that the "punitive significance" of the law might be viewed through the eyes of defendants or the general public and, in the law at issue, had been decided by the legislature itself. Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977). When statutes assigned such standards as "immorality" and "unprofessional conduct" to administrative agencies, we held that the legislature delegated responsibility for refining those standards to the agencies. Ross v. Springfield School Dist. No. 19, 300 Or. 507, 716 P.2d 724 (1986); Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980). In tort law, juries may decide whether one person's intentional infliction of psychic distress on another exceeds "the farthest reaches of socially tolerable behavior," Hall v. The May Dept. Stores, 292 Or. 131, 137, 637 P.2d 126 (1981), but not whether truthful disclosure about another is "private" rather than "newsworthy," Anderson v. Fisher Broadcasting Co., 300 Or. 452, 712 P.2d 803 (1986). "What is 'private' so as to make its publication offensive likely differs among communities, between generations, and among ethnic, religious or other social groups, as well as among individuals." 300 Or. at 461, 712 P.2d 803. The same can be said about what is "intimate."

Here, guidance appears in ORS 163.305(6) itself and in explanatory comments. "Intimate parts" are more than "sexual parts," but in context the words refer to parts that evoke the offensiveness of unwanted sexual intimacy, not offensive touch generally. That does not go far toward solving the problem of subjective or cultural differences, which attach varying meanings to such common social customs as hugging, kissing, holding hands, or linking arms among members of the same sex or of opposite sexes, not to mention unusual or idiosyncratic sexual tastes or inhibitions. Are lips intimate parts? Are knees or feet intimate, hands or elbows not? To hold that these are or are not intimate parts as a matter of law assumes that the lawmakers had in mind a chart or catalogue of "intimate" parts of the human body, which they did not list in the law but expect courts to divine from the word itself. Thus the statute also would fix this chart at the time of enactment, so that if, for instance, skirts at that time had never risen above the ankle, not only the "thigh area" but the shin would be intimate as a matter of law in the age of the miniskirt and the bikini. Sometimes statutes do that kind of thing, but it did not happen here.

In explaining its draft for the crimes of sexual abuse, now ORS 163.415 and ORS 163.425, the Criminal Law Revision Commission wrote that it meant "other intimate parts" to include "genitalia, breasts and whatever anatomical areas the trier of fact deems 'intimate' in the particular cases which arise. Thus, the ultimate decision of 'intimate' parts (sic) is left to the community sense of decency, propriety and morality." Proposed Criminal Procedure Code, Final Draft and Report (July 1970), Commentary to § 116.

We generally assume in the absence of other legislative history that the Legislative Assembly accepted the commission's explanations, see Stelts v. State of Oregon, 299 Or. 252, 258, 701 P.2d 1047 (1985), and State v. Garcia, 288 Or. 413, 420, 605 P.2d 671 (1980), but summary...