FILED February 3, 2020 03:00 PM Appellate Court Records
IN THE SUPREME COURT OF THE STATE OF OREGON ______
STATE OF OREGON, Yamhill County Circuit Court No. 16CR55213 Plaintiff-Respondent, Respondent on Review,
v. CA A165666
AUSTIN RAY HALTOM, SC S066955
Defendant-Appellant, Petitioner on Review. ______
CORRECTED BRIEF ON THE MERITS OF RESPONDENT ON REVIEW, STATE OF OREGON ______
Review of the Decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Yamhill County, Honorable LADD WILES, Judge ______
Opinion Filed: July 17, 2019 Per Curiam with Aoyagi, Judge, concurring. Before: HADLOCK, Presiding, DEHOOG and AOYAGI, Judges ______
ERNEST LANNET #013248 ELLEN F. ROSENBLUM #753239 Chief Defender Attorney General Office of Public Defense Services BENJAMIN GUTMAN #160599 NEIL F. BYL #071005 Solicitor General Deputy Public Defender MICHAEL A. CASPER #062000 1175 Court St. NE Senior Assistant Attorney General Salem, Oregon 97301 1162 Court St. NE Telephone: (503) 378-3349 Salem, Oregon 97301-4096 Email: [email protected] Telephone: (503) 378-4402 Email: [email protected]
Attorneys for Petitioner on Review Attorneys for Respondent on Review
2/20 TABLE OF CONTENTS
INTRODUCTION ...... 1 QUESTION PRESENTED AND PROPOSED RULE OF LAW...... 2 Question Presented ...... 2 Proposed Rule of Law ...... 3 LEGAL BACKGROUND AND MATERIAL FACTS...... 3 A. The statutory scheme for determining minimum culpable mental states ...... 3 B. The proceedings below ...... 6 1. The jury convicted defendant of second-degree sexual abuse...... 6 a. The facts adduced at trial...... 6 b. The parties’ dispute about the minimum culpable mental state and the court’s ruling...... 9 c. The jury’s verdict ...... 10 2. The Court of Appeals affirmed...... 11 SUMMARY OF ARGUMENT...... 12 ARGUMENT...... 16 A. Whether the “victim does not consent” element is a circumstance or conduct is a matter of legislative intent...... 17 1. The legislature intended the “victim does not consent” elements of ORS 163.415 and ORS 163.425 to carry the same mental state...... 17 2. Determining the appropriate mental state requires an examination of the structure, legislative history, and purpose of the two statutes...... 19 B. The 1971 legislature that enacted ORS 163.415 intended the victim’s lack of consent to be a circumstance, not a conduct element...... 23 1. As Simonov suggested, the grammatical structure of ORS 163.415 shows that the victim’s lack of consent is a circumstance...... 23 2. The legislative history supports that conclusion...... 26
i 3. Consideration of the seriousness of the punishment and gravity of the harm also supports that conclusion...... 28 C. The 1983 legislature that enacted ORS 163.425 also intended the victim’s lack of consent to be a circumstance not a conduct element for that offense...... 29 1. The text and context of ORS 163.425 shows that the victim’s lack of consent is a circumstance...... 29 a. The grammatical structure of ORS 163.425 signals a legislative intent to create an independent circumstance element...... 29 b. The context reinforces that interpretation...... 32 2. The legislative history is consistent with that conclusion...... 34 a. The legislature discussed the “victim does not consent” element in SB 483...... 34 b. The history does not show that the “victim does not consent” element is a conduct element...... 41 3. Consideration of the seriousness of the punishment and gravity of the harm also supports that conclusion...... 43 D. There is no inconsistency in non-consent being a circumstance for purposes of sexual abuse and conduct for purposes of UUV...... 44 1. Unlike in the UUV statute, the victim’s lack of consent is not part of the essential character of the acts proscribed by the sexual abuse statutes...... 44 2. Sexual abuse also is unlike UUV in myriad other ways that make a lower culpable mental state appropriate...... 48 E. Because the “victim does not consent” element in ORS 163.425 is a circumstance, the trial court did not err in instructing the jury and entering a judgment of conviction based on its verdict...... 53 CONCLUSION...... 54
ii TABLE OF AUTHORITIES
Cases Cited Askew v. State, 118 So 2d 219 (Fla 1960)...... 50 Buford v. State, 492 So 2d 355 (Fla 1986)...... 50 Chambers v. People, 682 P2d 1173 (Colo 1984) ...... 51 Commonwealth v. Lopez, 433 Mass 722, 745 NE 2d 961 (2001)...... 50 Efstathiadis v. Holder, 317 Conn 482, 119 A3d 522 (2015)...... 50 Roberson v. State, 501 So 2d 398 (Miss 1985) ...... 50 State v. Adams, 10 Haw App 593, 880 P2d 226 (1994)...... 51 State v. Ayer, 136 NH 191, 612 A2d 923 (1992)...... 50 State v. Boone, 294 Or 630, 661 P2d 917, 919 (1983)...... 51 State v. Christensen, 414 NW 2d 843 (Iowa 1987)...... 50 State v. Elmore, 54 Wash App 54, 771 P2d 1192 (1989)...... 50 State v. Gaines, 346 Or 160, 206 P3d 1042 (2009)...... 31, 42 State v. Guzek, 322 Or 245, 906 P2d 272 (1995)...... 42 State v. Guzman, 366 Or 18 (2019) ...... 18 State v. Haltom, 298 Or App 533, 447 P3d 66 (2019)...... 11 State v. Klein, 352 Or 302, 283 P3d 350 (2012)...... 32
iii State v. Lile, 237 Kan 210, 699 P2d 456 (1985) ...... 50 State v. Lopez, 126 Idaho 831, 892 P2d 898 (1995)...... 50 State v. Mayfield, 442 P3d 794 (Alaska Ct App 2019) ...... 50 State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013)...... 34, 35, 37, 40, 52 State v. Oliver, 133 NJ 141, 627 A2d 144 (1993)...... 50 State v. Simonov, 358 Or 531, 368 P3d 11 (2016) 6, 9, 10, 11, 12, 13, 19, 22, 23, 25, 28, 30, 44 State v. Wier, 260 Or App 341, 317 P3d 330 (2013)...... 9, 10, 11, 12, 24, 25, 41 State v. Witwer, 175 Ariz 305, 856 P2d 1183 (1993)...... 50 United States v. McDonald, 78 MJ 376 (CAAF 2019)...... 50 Village at Main Street, Phase II, LLC v. Department of Revenue, 356 Or 164, 339 P3d 428 (2014)...... 18
Constitutional and Statutory Provisions CRS § 18-3-402 ...... 51 Or Laws 1983, ch 564, § 1...... 34, 37 ORS 137.012...... 11 ORS 161.085...... 5, 6, 17, 19, 27, 32, 41, 49, 53 ORS 161.085(10)...... 13 ORS 161.095(2)...... 3 ORS 161.105...... 3, 4 ORS 161.115...... 36 ORS 161.115(2)...... 4 ORS 161.115(3)...... 4 ORS 163.305...... 36
iv ORS 163.415...... 12, 13, 15-19, 22, 23, 24, 25, 26, 28, 29, 38, 39, 41, 43, 53 ORS 163.425...... 4, 12-19, 22, 29, 31, 32, 33, 34, 42, 43, 44, 45, 47, 52, 53 ORS 164.135(1)(a)...... 19 ORS Chapter 163...... 45
Other Authorities Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report, § 11 (July 1970) ...... 26 Commentary to the Criminal Code § 134...... 22 Criminal Law Revision Commission, Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 1 ...... 27 Mary Graw Leary, Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex Tech L Rev 1 (2016) ...... 46 Official Draft and Revised Comments 1985, § 2.02 ...... 27 Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States, 2011, 63 Surveillance Summaries No. 8 (2014) ...... 46 S.G. Smith, J. Chen, K.C. Basile, L.K. Gilbert, M.T. Merrick, N. Patel, M. Walling, and A. Jain, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010-2012 State Report...... 46 Senate Bill 483...... 34, 36, 37, 38, 40, 41 Senate Bill 713...... 34, 35, 36, 38 Tape Recording, House Committee on Judiciary, SB 483, June 30, 1983 ...... 40 Tape Recording, Senate Committee on Judiciary, SB 483, June 7, 1983...... 38 Tape Recording, Senate Committee on Judiciary, SB 713, April 7, 1983...... 36
v CORRECTED BRIEF ON THE MERITS OF RESPONDENT ON REVIEW, STATE OF OREGON ______
INTRODUCTION
A person commits the crime of second-degree sexual abuse if, as relevant here, the person subjects another person to sexual intercourse “and the victim does not consent thereto.” The issue in this case concerns the requisite mental state with respect to the victim’s lack of consent for that crime: Is the state required to prove that the defendant knew the victim did not consent to intercourse, or is it sufficient for the state to prove that the defendant was at least criminally negligent in failing to be aware that the victim did not consent?
Here, defendant was convicted of second-degree sexual abuse based on an incident in which he coerced the victim into having sexual intercourse after she told him she did not want to, and then he continued to have sex with her as she cried and lay “frozen.” Defendant admitted that he knew the victim had said, “no” and was in pain, but insisted that he was not aware that she really did not consent and continued because he did not believe he was “hurting [her] that bad.” The incident left the victim physically injured and psychologically scarred. The jury found that defendant had not subjected the victim to sexual intercourse knowing that she did not consent, but that he was reckless in failing to be aware of that fact. The specific question here is whether, as defendant
/// 2 contends, the jury’s finding that he did not know that the victim did not consent entitled him to acquittal.
This court should reject that contention. The text, context, and legislative history of both the second- and third-degree sexual abuse statutes show that the legislature intended the minimum culpable mental state with respect to the
“victim does not consent” element that is common to both of those offenses to be criminal negligence. As the law thus recognizes, the harm caused by subjecting a person to sexual intercourse or other forms of sexual contact to which the victim does not consent is grave and ascertaining whether someone consents before subjecting that person to that grave harm is never difficult. A person who subjects another person to sexual contact and who is unaware— because of the person’s recklessness or criminal negligence—that the victim does not consent is therefore culpable and criminally liable for that behavior.
QUESTION PRESENTED AND PROPOSED RULE OF LAW
Question Presented
To prove that a defendant committed the crime of second-degree sexual abuse by subjecting a victim to sexual intercourse to which the victim does not consent, what is the minimum culpable mental state that applies to the victim’s lack of consent?
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Proposed Rule of Law
Under the second-degree abuse statute, the state must prove that the defendant knowingly engaged in conduct—subjecting the victim to sexual intercourse, sodomy, or unlawful sexual penetration—and a particular circumstance accompanying that conduct—that the victim did not consent.
Because the victim’s non-consent is a circumstance distinct from the defendant’s conduct, criminal negligence is the minimum culpable mental state.
LEGAL BACKGROUND AND MATERIAL FACTS
A. The statutory scheme for determining minimum culpable mental states
Under Oregon law, to convict a person of a criminal offense the state generally must prove that the person acted with a culpable mental state for every material element of the offense, regardless of whether the statute defining the offense actually specifies a culpable mental state for that element.
ORS 161.095(2).1 The rules for determining which culpable mental state must be proven also are a matter of statute. There are four possible culpable mental states—intentionally, knowingly, recklessly, and with criminal negligence.
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1 ORS 161.095(2) provides, “Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.” 4
ORS 161.115(2).2 Those are listed in order from highest (intentionally) to lowest (criminal negligence), and the “minimum culpable mental state” refers to the lowest permissible mental state that suffices to establish criminal liability.
ORS 161.115(3) (proof of a higher culpable mental state will satisfy a requirement of a lower culpable mental state).
If the legislature specifies in the statute defining a criminal offense a culpable mental state that applies to a particular element, that specified mental state is the minimum culpable mental state; i.e., the prosecution must prove that the defendant acted with at least that culpable mental state (or a higher one) to obtain a conviction. But if the statute contains no mention of culpable mental states at all—as is true for ORS 163.425—then which of the four culpable mental states constitutes the minimum culpable mental state for a particular element depends on the nature of the element, and specifically whether the element describes “conduct,” a “circumstance,” or a “result.”
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2 ORS 161.115(2) provides, “Except as provided in ORS 161.105 [which outlines the legislature’s authority to create violations or strict-liability crimes], if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.” 5
Those three categories—“conduct,” “circumstance,” and “result”—come from the definitions of the culpable mental states that are set forth in
ORS 161.085:
(7) “Intentionally” or “with intent,” when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
(8) “Knowingly” or “with knowledge,” when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.
(9) “Recklessly,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
(10) “Criminal negligence” or “criminally negligent,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
(Emphases added). Under those definitions, the culpable mental state of
“intentionally” can apply only to elements that describe results or conduct.
“Knowingly” can apply to elements that describe conduct or circumstances.
And “recklessly” and “criminally negligent” apply to elements that describe results or circumstances. As a result of those definitions, then, the minimum culpable mental state for conduct elements is knowledge, while the minimum 6 culpable mental state for result and circumstance elements is criminal negligence. State v. Simonov, 358 Or 531, 539–40, 368 P3d 11 (2016).
To summarize: where a statute defining a criminal offense does not specify a culpable mental state, the minimum culpable state that applies to an element requiring a culpable mental state is either knowledge or criminal negligence. To determine which of those two it is, a court must determine whether the element describes “conduct,” a “result,” or a “circumstance” as those words are used in ORS 161.085. If the element describes the “conduct,” then the minimum culpable mental state is knowledge, but if the element describes a “result” or a “circumstance,” then the minimum culpable mental state is criminal negligence.
B. The proceedings below
1. The jury convicted defendant of second-degree sexual abuse.
In this case, defendant was charged with first-degree rape and second- degree sexual abuse based on an incident in which he initiated sexual intercourse with the victim after she told him that she did not want to have sex, and then he continued to have sexual intercourse with her while she cried and told him she wanted it to stop.
a. The facts adduced at trial
At trial, the victim testified and described the incident in detail. She explained that the night before the incident she and defendant had consensual 7 sex but stopped before defendant had an orgasm because the victim was getting sore. The next morning defendant told the victim that he wanted to have sex, but the victim said she was sore and did not want to.
I kept telling him, I don’t want to; and he started trying to coerce me to, saying, you know that he didn't get to finish the night before, and that wasn’t fair, and then was saying things like, just let me put it in for a second, just for a little bit; and I didn't want to, and I kept telling him I didn’t want to, but he wasn’t -- it was like my answer wasn’t a valid answer.
(Tr 101).
The victim then recounted that defendant got on top of her, and
“basically made it clear that he was going to have sex with me; and I just laid there and—he spread my legs with, like his hands, and then used his thighs to keep them open; and I started looking out the window that was to the left, and was kind of zoned out. It wasn’t really a conscious decision. I just froze.” (Tr
103). The victim said she was initially silent but then again expressed that she wanted it to stop but defendant continued. “And at that point I started to just freeze again, like try to put my mind somewhere else. Then it started to really hurt. * * * I was just kind of frozen at first, but then as the pain got worse I started trying to kind of squirm away, like twist my pelvis to get away from him; but with how he was on top of me, that didn't work. And I started to cry, and he ignored me. He didn't answer me.” (Tr 105). Eventually, the pain “got to be too bad” and the victim was able to push him off her. (Tr 106). She went to 8 the bathroom and discovered that she was bleeding. When she told defendant that she was bleeding defendant became upset and cried and apologized. (Tr
112).
The state’s evidence also included a recorded “pretext” phone call between the victim and defendant that took place long after the incident.
(State’s Ex 1; Tr 77-85). In the call, defendant made several incriminating statements and repeatedly apologized for what he had done. Defendant admitted that what he had done was “evil” and “probably the worst thing I’ve ever done in my life” and that he had nightmares about it. (Tr 80). He initially said that he
“didn’t notice” that the victim was hurting because he was “so self-involved.”
(Tr 80). The victim pointed out to him that she had been asking him to stop and that defendant “dismissed” her, to which defendant responded, “I didn’t think it was hurting you that bad.” (Tr 82). He acknowledged that the victim had told to stop and that it hurt, but he explained, “I wasn’t sure how bad. It didn’t seem like it was hurting that bad. I was stupid. I was selfish.” (Tr 81-82).
For his part, defendant testified at trial and described the incident somewhat differently, claiming that he had stopped when he realized that the victim was crying. He said that when he first attempted to initiate sex the victim
“wasn’t really feeling it,” but that he had not gotten to “finish” the night before and it “wasn’t going to take very long” and the victim had agreed to have sex
“maybe for a little bit, I guess.” (Tr 197). He said that they engaged in 9 intercourse for a short time but that he stopped after he saw that she was crying and heard her tell him to stop. (Tr 198-99).
b. The parties’ dispute about the minimum culpable mental state and the court’s ruling
Outside the presence of the jury, the parties disagreed about how the jury should be instructed regarding the elements of second-degree sexual abuse, and in particular the minimal culpable mental state that applied to the victim’s lack of consent. (Tr 26-28; Defendant’s Trial Memorandum, eTCF). The state argued that the minimum culpable mental state with respect to the victim’s lack of consent was criminal negligence. For that proposition, the state relied on
State v. Wier, 260 Or App 341, 317 P3d 330 (2013), in which the Court of
Appeals held that, for purposes of third-degree sex abuse, the victim’s non- consent is a circumstance element for which the minimum culpable mental state is criminal negligence.
Defendant disagreed, arguing that Wier had been abrogated by this court’s decision in Simonov, which held that, for purposes of unlawful use of a vehicle, the “without the consent of the owner” element described conduct for which the minimum culpable mental state is knowledge. Defendant argued that under Simonov the victim’s lack of consent was a conduct element for which the minimum culpable mental state was knowledge. (Tr 26-27).
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The trial court sided with the state, concluding that notwithstanding
Simonov, Wier was still good law and that it was controlling. (Tr 27-28). The court ultimately instructed the jury to consider each of three different possible mental states, starting with whether defendant committed second-degree sexual abuse by subjecting the victim to sexual intercourse knowing that she did not consent and then moving, if necessary, to whether defendant was reckless by consciously disregarding a substantial risk that the victim did not consent, and finally, if necessary, to whether defendant acted with criminal negligence. (Tr
232-34).
c. The jury’s verdict
The jury acquitted defendant on the charge first-degree rape, and it also found him not guilty of committing second-degree sex abuse by subjecting the victim to sexual intercourse knowing that she did not consent. (Tr 270-71). But the jury found him guilty of committing second-degree sexual abuse by subjecting the victim to sexual intercourse while consciously disregarding a substantial risk that she did not consent. Id.
At sentencing, the victim read a prepared statement to the court. (Tr 277-
85). In the statement, the victim explained that the incident had “almost shattered me” and that “I will be living with these memories that haunt me for the rest of my life.” (Tr 283).
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The trial court imposed a sentence of five years’ probation, with 60 days in jail. (Tr 289-90).3
2. The Court of Appeals affirmed.
Defendant appealed his conviction, assigning error to the trial court’s instructions regarding the culpable mental state, and to entering a judgment of conviction based on the jury’s finding that he had acted with a reckless mental state as to the victim’s lack of consent. He renewed his arguments that Simonov had abrogated Wier and that under Simonov’s reasoning, to prove a person committed second-degree sexual abuse by subjecting the victim to intercourse without consent, the state is required to prove that the defendant knew that the victim did not consent.
In a per curiam opinion, the Court of Appeals affirmed. State v. Haltom,
298 Or App 533, 534, 447 P3d 66, 67 (2019). The Court of Appeals explained that Simonov addressed “a different statute with a different structure and purpose” and had cited Wier in its opinion. The court thus concluded that
Simonov had not abrogated Wier, which therefore remained good law and was controlling. Id.
3 The crime seriousness category of defendant’s offense was “7”, and the presumptive gridblock sentence was 3 years’ probation. OAR 213-017-0005; (Tr 289). However, ORS 137.012 requires at least five years’ probation for certain offenses, including second-degree sexual abuse. 12
Judge Aoyagi issued a concurring opinion. Judge Aoyagi agreed that
Wier was not “plainly wrong” in light of Simonov but opined that Wier was incorrectly decided. Citing Simonov’s reasoning, she explained that lack of consent is “part of the essential character of the proscribed act of sexual abuse” and that it should therefore be a “conduct element of sexual abuse in any degree.” Id. at 539-41.
SUMMARY OF ARGUMENT
At issue in this case is the minimal culpable mental state that applies to the “victim does not consent” element in ORS 163.425, second-degree sexual abuse. As a matter of both text and history, however, the meaning of ORS
163.425 is inextricably tied to the meaning of the third-degree sexual abuse statute, ORS 163.415, which was enacted before ORS 163.425 and contains the same “victim does not consent” element. Ascertaining the minimum culpable mental state for that element requires this court to construe both ORS 163.415 and ORS 163.425 to determine whether it is a conduct element for which the minimum culpable mental state is knowledge or a circumstance element for which the minimum culpable mental state is criminal negligence.
In Simonov, this court construed the unlawful use of vehicle (UUV) statute and concluded that, for that offense, the victim’s lack of consent was a conduct element. But the structure and purpose of the second- and third-degree sex abuse statutes are fundamentally different than the UUV statute, and that 13 leads to a different conclusion. This court’s conclusion in Simonov was based primarily on the text and structure of the UUV statute, and specifically the fact that the “without the consent of the owner” was a prepositional phrase that modified the nature of the physical act identified in the statute. But ORS
163.415 and ORS 163.425 are not structured that way. Both explicitly set forth the “victim does not consent” element as separate and distinct from the physical act of subjecting a person to sexual contact. Indeed, in Simonov, this court cited
ORS 163.415 as an example of how the legislature can structure a statute to signal that an element is a circumstance and not a conduct element. Simonov thus strongly suggested that the “victim does not consent” element in ORS
163.415 and ORS 163.425 is circumstance element.
In Simonov, this court also reasoned that it was unlikely that the legislature intended that less than a “knowing” culpable mental state would apply to UUV, because a person can commit UUV without driving or controlling the vehicle. This court expressed concern that the criminal negligence standard would expose a passenger riding in a car who naively believes that the owner has consented to a severe consequence, i.e., criminal liability for a felony offense. Id. at 548.4 But that line of reasoning leads to a
4 Although this court in Simonov thus suggested that a “naïve trust” could result in criminal liability, the standard for criminal negligence is significantly higher than that. ORS 161.085(10) thus provides: Footnote continued… 14 very different conclusion when one is talking about sexual abuse. The harm caused by subjecting a person to sexual intercourse or other forms of sexual contact to which the person does not consent is grave, while ascertaining whether someone consents before subjecting that person sexual contact is neither complicated nor difficult. For that reason, it is not “unlikely” that the legislature would have intended that someone who subjects another person to sexual intercourse while being unaware that the victim did not consent would be criminally liable for that behavior if the person’s lack of awareness was the result of the person consciously disregarding or failing to be aware of a substantial and unjustifiable risk that the victim did not consent. On the contrary, it is likely that the legislature would have intended for such behavior to fall within the scope of the statute.
In arguing to the contrary, defendant relies primarily on the legislative history of ORS 163.425, which he claims “conclusively” shows that the legislature intended the “victim does not consent” element to require a knowing
(…continued)
“Criminal negligence” or “criminally negligent,” when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. 15 mental state. But a closer look at that history reveals a different picture. When the legislature enacted ORS 163.425, it declined to specify a mental state for the non-consent element—suggesting that it wanted the mental state to track current law under ORS 163.415. While it is true that the law’s chief proponent, the Benton County District Attorney, told members of the legislature during his testimony that it was a matter of settled law that the state would have to prove that a defendant knew that the victim did not consent, that was not an accurate statement of the law. More importantly, the legislature rejected a proposed amendment authored by the same district attorney that would have required proof that the actor knew that the victim did not consent after committee counsel suggested that the amendment was not consistent with the current law.
The legislature opted instead not to specify any culpable mental state. As a result of that decision, the minimum culpable mental state of the “victim does not consent” element turns on whether, as correctly construed, that element describes the “essential character” of the act that ORS 163.425 proscribes. And nothing in the legislative history cited by defendant has any bearing on that question; indeed, nothing even suggests that the legislature considered that question when it enacted ORS 163.425.
The drafters of ORS 163.415, however, had considered that question, and the legislative history of that earlier-enacted law suggests that the legislature
/// 16 intended the victim’s lack of consent to a be a circumstance element for which the minimum culpable mental state is criminal negligence.
In short, nothing in the legislative history provides a basis for concluding that the legislature intended the “victim does not consent” element to describe conduct. To the extent that the legislative history sheds light on the subject, it suggests that the legislature intended it to describe a circumstance. In other words, the legislative history supports what is clear from the statute’s text and purpose: subjecting someone to sexual intercourse to which the person does not consent while consciously disregarding a substantial risk that the person does not consent or being criminally negligent in failing to be aware of that risk is harmful, blameworthy, and criminal. This court should affirm.
ARGUMENT
The second-degree sexual abuse statute, ORS 163.425, has two distinct elements: first, the defendant subjected another person to sexual intercourse, sodomy, or sexual penetration; and second, the victim does not consent. In that regard, it is just like the third-degree sexual abuse statute, ORS 163.415, which was enacted long before ORS 163.425 and which also includes a separate
“victim does not consent” element. The text, context, and history of both ORS
163.415 and ORS 163.425 confirm what is plain on the face of both statutes: the victim’s lack of consent is a “circumstance” that exists apart from the
/// 17 offender’s conduct. Because the victim’s lack of consent is a circumstance, the minimum culpable mental state for that element is criminal negligence.
A. Whether the “victim does not consent” element is a circumstance or conduct is a matter of legislative intent.
1. The legislature intended the “victim does not consent” elements of ORS 163.415 and ORS 163.425 to carry the same mental state.
ORS 163.425 provides, in relevant part:
(1)A person commits the crime of sexual abuse in the second degree when: (a)The person subjects another person to sexual intercourse, oral or anal sexual intercourse or, except as provided in ORS 163.412 (Exceptions to unlawful sexual penetration prohibition), penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim does not consent thereto.
(Emphasis added). It is undisputed that the italicized portion of ORS 163.425 describes an element—that “the victim does not consent”—for which the state is required to prove a culpable mental state. It also is undisputed that that the victim’s lack of consent cannot fairly be characterized as describing a “result.”
Thus, the sole question at issue is whether the victim’s lack of consent under
ORS 163.425 constitutes a “conduct” element or a “circumstance” element as those words are used in the statute that defines culpable mental states, ORS
161.085.
Answering that question requires construing not just ORS 163.425 but also another, closely related statute that preceded it. ORS 163.415 defines the crime of third-degree sexual abuse and was enacted in 1971, 12 years before 18
ORS 163.425. Just like ORS 163.425, ORS 163.415 also includes a separate
“victim does not consent” element, the text of which is essentially the same as that in ORS 163.425.5 More importantly, the history of ORS 163.425 discussed below shows that the legislature affirmatively intended for the “victim does not consent” element in ORS 163.425 to mean the same thing as that element in
ORS 163.415, and to require whatever proof the courts had concluded was necessary under ORS 163.415. It is thus impossible to understand the intended meaning of the latter statute without understanding the meaning of former. See
Village at Main Street, Phase II, LLC v. Department of Revenue, 356 Or 164,
175, 339 P3d 428 (2014) ("[T]he general assumption of consistency counsels us to assume that the legislature intended the same word to have the same meaning throughout related statutes unless something in the text or context of the statute suggests a contrary intention."); see also State v. Guzman, 366 Or 18, 35 (2019)
5 ORS 163.415 provides, in relevant part:
(1)A person commits the crime of sexual abuse in the third degree if:
(a)The person subjects another person to sexual contact and:
(A)The victim does not consent to the sexual contact; or
(B)The victim is incapable of consent by reason of being under 18 years of age[.]
(Emphasis added). 19
(voters who adopted statute intended its use of “statutory counterpart” would mean same thing as in other, earlier and closely related statutes).
2. Determining the appropriate mental state requires an examination of the structure, legislative history, and purpose of the two statutes.
Whether the “victim does not consent” element in ORS 163.415 and ORS
163.425 describes a “circumstance” or “conduct” is question of legislative intent. Simonov, 358 Or at 546. Nothing in the text of either statute explicitly addresses that question, however, nor did the legislature that enacted ORS
163.425 consider it. As the analysis in Simonov illustrates, determining whether an element describes a circumstance or conduct in the absence of direct textual or historical evidence requires determining what is implicit in the statute’s structure and purpose.
In Simonov, the statute at issue was the UUV statute, ORS 164.135(1)(a).
One of the elements of UUV is that the person committing the offense used a vehicle “without consent of the owner.” The question in Simonov was what the minimum culpable mental state was for the “without the consent of the owner” element, and the answer to that question depended on whether that element described “conduct” or a “circumstance” for purposes of ORS 161.085.
Simonov, 358 Or at 546. Construing ORS 161.085, this court concluded that the difference between a “conduct element” and a “circumstance element” will
/// 20 generally depend on whether the element describes the “nature” or “essential character” of the defendant’s act or omission:
When an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element, and (unless different mental states are specified in the statute defining the offense), the minimum culpable mental state is knowledge. In contrast, when an element of a Criminal Code offense describes an accessory fact that accompanies the defendant’s conduct, it is a circumstance element for which (again, unless different mental states are specified), the minimum culpable mental state is criminal negligence.
Id. at 546. To determine the legislature’s intent with respect to the UUV statute, this court turned to the statute’s text and engaged in a detailed examination of the statute’s grammatical construction. This court thus began by noting that a person commits UUV when the person “takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat, or aircraft without the consent of the owner.” Id. This court then described the “grammatical role” of each of the constituent phrases, noting that “without the consent of the owner” was a prepositional phrase that modified the verb “rides.” Id. at 546-47. This court concluded that, by modifying the verb “rides” with the prepositional phrase,
“without consent,” the legislature had signaled that the essential nature of the proscribed conduct was unauthorized use. This court noted that if the legislature had wanted to separate the proscribed conduct element from circumstance elements, it could have signaled that separation through a different grammatical construction, by identifying the conduct and then listing the attendant 21 circumstances that make that conduct illegal. Id. Alternatively, this court suggested, simply identifying the conduct and then, in an independent clause, identifying the attendant circumstances that make the conduct illegal might suffice to signal the legislature’s intent to create an independent circumstance element:
Within the structure of ORS 164.135(1)(a), “without the consent of the owner” is an adverbial phrase, and it modifies the verb “rides” or one of the other verbs set out. That adverbial phrase describes how the person rides: without the owner’s consent. In that way, the text describes a particular form of conduct, unauthorized use. If the legislature had meant to criminalize riding in another’s vehicle, regardless of whether the actor knew that the owner did not consent, it could have described particular acts and then, in a series of separately numbered provisions, it could have described the circumstance elements attendant to those acts. Even separating the owner’s lack of consent from the verb in independent clauses arguably could have signaled a legislative intent to create an independent circumstance element. But, where, as in ORS 164.135(1)(A), the owner’s lack of consent changes the meaning of “ride,” the lack of consent is part of the nature or essential character of the proscribed act.
Id. at 547 (Footnote omitted).
After considering the grammatical construction of the UUV statute, this court considered the nature of the punishment for UUV as it related to the culpable mental state. This court expressed doubt that the legislature would have wanted to attach the serious consequence of felony liability for driving another person’s car without consent unless the person engaging in that conduct was aware of that lack of consent:
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The state’s contrasting interpretation would require proof only that a passenger was criminally negligent as to whether the owner of the vehicle in which he or she rode consented to the use. Under that interpretation, naive trust could subject a person to criminal liability for a felony. ORS 164.135(2). The severity of that consequence suggests that the legislature did not contemplate that mere criminal negligence would suffice to establish criminal liability for UUV.
Id. at 548.
Finally, this court noted that the commentary to the Criminal Code explained that the purpose of the UUV statute was to address “joyriding.” Id.
(citing Commentary to the Criminal Code § 134 (explaining that UUV covers the “‘joy-riding’ type of offense where the actor makes unauthorized use of another’s vehicle but without the intent to steal it or permanently deprive the owner of its use’”). This court noted that the “nature of joyriding is the temporary use of a vehicle without permission.”
After considering the structure and purpose of the UUV statute, this court concluded that “riding without permission” was “part of the essential character” of the act that the UUV statute proscribes, and therefore committing UUV requires knowing that the vehicle is being used without permission. Id.
Although Simonov addressed a different statute, the reasoning in that case provides the basic analytical framework needed to determine the minimum culpable mental state for the “victim does not consent” element in ORS 163.415 and ORS 163.425: If that element describes the “essential character” of the acts that are proscribed by ORS 163.415 and ORS 163.425, then it generally is a 23 conduct element and the minimum culpable mental state is knowledge. If that element describes instead “an accessory fact that accompanies the defendant’s conduct,” then it is a circumstance element and the minimum culpable mental state is criminal negligence.
Whether the “victim does not consent” element is part of the “essential character of the proscribed act” or “an accessory fact” for purposes of the sexual abuse statutes is a question of legislative intent, determined by an examination of the statutory text, context, and legislative history. To the extent the text, context, and history do not explicitly address that issue, the intent must be gleaned from the structure and purpose of the statutes, including a consideration of the nature of the punishment that the statutes impose and whether the legislature would have intended that a person acting with less than a knowing mental state would be subject to that punishment.
B. The 1971 legislature that enacted ORS 163.415 intended the victim’s lack of consent to be a circumstance, not a conduct element.
1. As Simonov suggested, the grammatical structure of ORS 163.415 shows that the victim’s lack of consent is a circumstance.
As just explained, in Simonov, this court concluded that, by modifying the verb “rides,” with a prepositional phrase, “without consent,” the legislature had signaled that the act proscribed by the UUV statute was not merely riding in a vehicle but riding without consent in a vehicle. This court then pointed to a grammatical example of how, instead, the legislature might signal that an 24 element is an “attendant circumstance” to a proscribed act. And that example was ORS 163.415.
This court explained that ORS 163.415 was an example of a statute in which the legislature had described a conduct element and then, in separately numbered independent clauses, had identified circumstances that make the conduct unlawful, including the victim’s lack of consent. Although this court noted that it did not need to decide what mental state applies to lack of consent for purposes of ORS 163.415 because that statute was not at issue, it then noted, with apparent approval, that—in Wier— the Court of Appeals had concluded that criminal negligence would suffice:
An example of such a structure is found in ORS 163.415, describing the offense of sexual abuse in the third degree. That statute provides, in part:
“(1) A person commits the crime of sexual abuse in the third degree if: “(a) The person subjects another person to sexual contact and: “(A) The victim does not consent to the sexual contact; or “(B) The victim is incapable of consent by reason of being under 18 years of age[.]”
In that provision, the proscribed act—subjecting another person to sexual contact—is set out in a separate paragraph from the element that the victim does not consent to the contact. Although it is not necessary to consider what mental state requirement attaches to the “does not consent” element of ORS 163.415 in this case, we note that the Court of Appeals has held that criminal negligence will suffice. See State v. Wier, 260 Or App 341, 354, 317 P3d 330 (2013) (“ORS 163.415 requires the state to prove that a defendant acted knowingly, recklessly, or with criminal negligence with respect to a victim’s lack of consent[.]”). 25
Id. at 547 n 5.6
This court should now explicitly hold what it suggested in Simonov: By its plain terms, the victim’s lack of consent in ORS 163.415 is an element separate and distinct from the physical act of subjecting a person to sexual contact. Unlike the “without the consent of the owner” element of UUV, which describes the nature of the offender’s conduct, the “victim does not consent” element in ORS 163.415 describes the conduct of the victim. That is not something that the offender does or can control, but a circumstance of which the offender is or is not aware. Nothing in the text of the statute suggests that victim’s lack of consent modifies or qualifies the nature of the required physical act.
6 Defendant acknowledges that Simonov cited Wier, but he contends that it did so “with neither approval or disapproval.” (Defendant’s BOM 14). Respectfully, however, that is not a fair reading of Simonov. It is true that this court did not expressly indicate its approval, but it certainly implied its approval. It did so by citing the third-degree sexual abuse statute as an example of a statute in which the legislature has “described particular acts and then, in a series of separately numbered provisions,* ** described the circumstance elements attendant to those acts.” One of the “circumstance elements” listed in ORS 163.415 is the victim’s lack of consent. This court then stated that it did not need to decide the mental state requirement for that element, but went out of its way to note the Court of Appeals’ conclusion in Wier that criminal negligence would suffice. By characterizing the victim’s lack of consent as a “circumstance element” and noting that the Court of Appeals had identified the minimum culpable mental state as criminal negligence—the mental state that applies to circumstance elements—this court suggested that it agreed with Wier. At the very least, it indicated that Wier is consistent with its analysis. 26
2. The legislative history supports that conclusion.
The relevant legislative history of ORS 163.415 is limited, but what little there is supports the conclusion that the legislature intended a victim’s lack of consent to sexual contact to be a “circumstance” element. ORS 163.415 was enacted in 1971 as part of the Criminal Code revision. In adopting the Oregon
Criminal Code, the 1971 legislature followed the approach of the Model Penal
Code in distinguishing between elements describing conduct, circumstances, and results in its definitions of the culpable mental states. Commentary to
Criminal Law Revision Commission Proposed Oregon Criminal Code, Final
Draft and Report, § 11, 10 (July 1970). The Model Penal Code itself does not define the term “circumstance,” but the commentaries specifically identify lack of consent in the context of the crime of rape as a “circumstance”:
The Model Penal Code’s approach is based upon the view that clear analysis requires that the question of the kind of culpability required to establish the commission of an offense be faced separately with respect to each material element of the crime. The Code provision on rape will afford an illustration. Under section 213.1(1), a purpose to effect the sexual relation is clearly required. But other circumstances are also made relevant by the definition of the offense. The victim must not have been married to the defendant and her consent to sexual relations would, of course, preclude the crime. Must the defendant’s purpose have encompassed the facts that he was not the husband of the victim and that she opposed his will? These are certainly difficult questions. Recklessness may be sufficient for these circumstances of the offense, although purpose is required with respect to the sexual result that is an element of the offense. 27
Model Penal Code and Commentaries (Official Draft and Revised Comments
1985) § 2.02 comment at 231.32 (Emphases added).
Subcommittee members of the Commission who drafted the culpability statutes discussed the distinction between conduct and circumstances. While those discussions show that subcommittee members recognized that the line between circumstance and conduct was not always easy to discern, it is notable that one of the authors, Professor Courtney Arthur, characterized facts such as the victim’s age or lack of consent to sexual intercourse as “circumstances” for the crimes of statutory rape and forcible rape. Tape Recording, Criminal Law
Revision Commission, Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 1
(statement of Professor Courtney Arthur) (using lack of consent as an example of an attendant circumstance).7
7 Defendant acknowledges that history, but he suggests that it has little relevance. He thus notes that the commentaries to the Model Penal Code recognize the culpable state is a “difficult question.” (Def BOM 39). While that may be true, the commentaries also unambiguously conclude that the victim’s lack of consent is a “circumstance of the offense”—and under ORS 161.085 that fact determines the minimum culpable mental state. Defendant also notes that subcommittee members could not agree about the line between circumstance and conduct, quoting at length a disagreement between Professor Arthur and another member (Senator Spaulding) on the subject. (Def BOM 37- 38). The discussion quoted by defendant admittedly shows that members were struggling to understand Professor Arthur’s position about the difference between a circumstance and conduct element. But it is not clear that the other members ultimately disagreed with that position. While Professor Arthur did express concern that another member had a different point of view, both men Footnote continued… 28
In short, the relevant history of ORS 163.415, while admittedly sparse, supports what is demonstrated from the statute’s text: the legislature that enacted the culpability statutes intended the victim’s lack of consent to sexual contact to be a circumstance element.
3. Consideration of the seriousness of the punishment and gravity of the harm also supports that conclusion.
In Simonov, this court reasoned that it was unlikely that the legislature intended that less than a “knowing” culpable mental state would apply to UUV, because that would expose a passenger riding in a car who naively believes that the owner has consented to severe consequence, i.e., criminal liability for a felony offense. Simonov, 358 at 548. But that line of reasoning leads to a very different conclusion when one is talking about third-degree sexual abuse. Third- degree sexual abuse is not a felony, but a misdemeanor. The harm that results from a crime like sexual abuse is likely to be substantially greater than that which results from UUV, and arises whether the perpetrator of the abuse acted knowingly or with recklessness or criminal negligence. Because of the seriousness of the harm and the ease with which mistakes can be avoided, society rightfully expects and demands that people who subject others to sexual contact are aware of whether those whom they subject to that contact consent to
(…continued) seemed to conclude that was not the case or that if it was the case that it was not a problem. 29 it. In other words, subjecting another person to sexual contact while being unaware, as a result of one’s own recklessness or criminal negligence, that the person does not consent to that contact is offensive and harmful behavior. It is neither surprising nor “unlikely” that the legislature would make such behavior a misdemeanor offense.
C. The 1983 legislature that enacted ORS 163.425 also intended the victim’s lack of consent to be a circumstance not a conduct element for that offense.
1. The text and context of ORS 163.425 shows that the victim’s lack of consent is a circumstance.
a. The grammatical structure of ORS 163.425 signals a legislative intent to create an independent circumstance element.
Just as in ORS 163.415, the text and structure of ORS 163.425 shows that the “victim does not consent” element is separate and distinct from the physical act identified in the statute. ORS 163.425 specifies on its face what are two different elements, one of which describes the act of the defendant (subjecting the victim to sexual intercourse) and the other of which describes what the victim does (i.e., that he or she does not consent).8 As noted above, this court in
8 As this court noted in State v. Ofodrinwa, 353 Or 507, 519, 300 P3d 154 (2013), the verb “consent” in this context generally refers to a “’willingness (as to accept a proposition or carry out a particular action): give assent or approval: AGREE[.]’” (quoting Webster's Third New Int'l Dictionary 482 (unabridged ed 2002)). For purposes of ORS 163.425, the “victim does not consent” element also includes cases in which the victim is incapable of consent. Ofodrinwa, 353 Or at 532. 30
Simonov suggested that one way to signal that an element is circumstance is to identify the required physical acts and then, in “separately numbered provisions,” describe “circumstance elements attendant to those acts.” Simonov,
358 Or at 547. Notably, the court in Simonov also went on to explain that identifying the victim’s lack of consent in a “separately numbered provision” was not the only way for the legislature to grammatically signal that lack of consent is an attendant circumstance. This court explained that by using a verb to identify the conduct element and then, in an “independent clause,” identifying the victim’s lack of consent as an another element, the legislature might also be able to show that the victim’s lack of consent is a circumstance element. Id. at 547 (“Even separating the owner’s lack of consent from the verb in independent clauses arguably could have signaled a legislative intent to create an independent circumstance element.”).
That is exactly what the second-degree sexual abuse statute looks like.
The statute describes a physical act—subjecting another person to sexual intercourse—and then, after an, “and,” indicates in a separate, “independent clause” that “the victim does not consent thereto.” The structure—with two separate and distinct elements—is like that of third-degree sex abuse and unlike that of UUV.
Defendant downplays the significance of such grammatical distinctions, arguing that “putting grammatical construction ahead of what constitutes the 31 essential nature of the criminal act when determining what mental state applies erroneously elevates form over substance.” (Def BOM at 34). But defendant fails to acknowledge the purpose and centrality of the grammatical analysis that this court undertook in Simonov.9 This court’s careful attention to those grammatical details may seem subtle, but it reflects the most fundamental principle of statutory construction—namely, that an inquiry into a statute’s meaning must be rooted in the statute’s text. See State v. Gaines, 346 Or 160,
206 P3d 1042 (2009) (noting that text and context are primary, and the court’s goal is to determine “the intent of the legislature as formally enacted into law”
(emphasis added)). Thus, while the conduct element of a statutory offense is not necessarily limited to the physical act that is identified in the statute, there must at least be some textual basis for concluding that the legislature intended the conduct element to encompass more than just that physical act. In the case of the UUV statute, there is such a textual basis: the phrase “without the consent of the owner” modifies, as a grammatical matter, the bodily movement (“rides”) that is identified in the statute. Unlike the UUV statute, there simply is no textual support in ORS 163.425 for the conclusion that the legislature intended
9 As explained below in Part D, defendant’s argument also misapprehends what this court meant by the “essential character of the proscribed act,” and conflates what is essential to the crime with what is essential to the particular act that is proscribed in the criminal statute. 32 the “victim does not consent” element to be a conduct element. On the contrary, the plain text ambiguously describes two distinct elements, one of which is a physical “act” under the plain terms of ORS 161.085 and the other of which is a
“circumstance” under the plain meaning of that word. The “victim does not consent” thus describes a fact that accompanies the defendant’s conduct, because it does not describe the conduct of defendant but the conduct of someone else, i.e., the victim.
b. The context reinforces that interpretation.
While the meaning of the statute is thus clear on its face, considering
ORS 163.425 in the context of other, related statutes confirms that the statute means what it says. State v. Klein, 352 Or 302, 309, 283 P3d 350 (2012) (a statute's context includes “related statutes”). ORS 163.325(3) provides
In any prosecution under ORS 163.355 to 163.445 in which the victim's lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense for the defendant to prove that at the time of the alleged offense the defendant did not know of the facts or conditions responsible for the victim's incapacity to consent.
Under that statute, where the victim’s lack of consent is due to incapacity, the minimum culpable mental state is knowledge, and the defendant bears the burden of proving lack of knowledge as a defense. That affirmative defense is significant for two reasons. 33
First, if the legislature intended the victim’s lack of consent to be a conduct element for purposes of sexual offenses in Chapter 163, this affirmative defense would not make sense. If lack of consent were a conduct element, then the state would be required to prove that a defendant knew that the victim did not consent in its case in chief. Providing that lack of knowledge is an affirmative defense for a subset of sex offenses involving lack of consent demonstrates that the legislature did not intend that the state would have to prove such knowledge in its case in chief.
Second, the statute applies only when the lack of consent is based “solely upon the incapacity of the victim to consent” and it is not available in ordinary non-consent cases—i.e., cases in which the victim “does not consent” by implicitly or explicitly communicating as much. If the legislature had wanted to make that defense available for lesser crimes of second- and third-degree sexual abuse, it easily could have done so. Instead, it was careful to exclude those lesser offenses, showing that it intended that something less than a knowing mental state was sufficient to prove those crimes.
In short, the text and context of ORS 163.425 show that the legislature made the “victim does not consent” element a circumstance, not a conduct element. 34
2. The legislative history is consistent with that conclusion.
The legislative history of ORS 163.425 is complicated and to some degree contradictory, and determining its significance requires a detailed examination of what happened. On its face, the testimony of the District
Attorney who was helping to guide the law through the legislature would seem to support defendant’s position. But what the legislature ultimately decided to do points in a different direction. Although the legislature considered an amendment that would have specified a culpable mental state of “knowingly,” the legislature ultimately decided not to include that amendment and not to specify any particular culpable mental state. As a result, the applicable mental state depends on the “essential character of the proscribed act”—but there is nothing to suggest that the legislature knew that or considered it.
a. The legislature discussed the “victim does not consent” element in SB 483.
The law that created ORS 163.425 was SB 483, enacted in 1983. See Or
Laws 1983, ch 564, § 1; see also State v. Ofodrinwa, 353 Or 507, 521, 300 P3d
154, 161 (2013) (discussing the legislative history of ORS 163.425). Alongside
SB 483 was also another sex-crimes bill being considered in the 1983 legislative session, SB 713. The Benton County District Attorney, Peter
Sandrock, was a proponent of both and “took the lead in both the House and 35
Senate hearings in explaining why the bill was necessary and what it would cover.” Ofodrinwa,353Orat 521n 13.
Of the two bills, SB 713 was more consequential and attracted more attention because it would have effected a significant change to all first-degree sexual offenses. The version of the bill that was introduced would have changed all the first-degree sex crimes replacing the forcible compulsion element in each of those offenses with a new combination of elements, namely that the victim
“does not consent” plus any in a list of aggravating factors. Exhibit A, Senate
Judiciary Committee, SB 713, May 26, 1983 (Introduced bill with proposed amendments interlineated).
When SB 713 was in the Senate Judiciary Committee, District Attorney
Sandrock responded to inquiries about what “does not consent” meant and concern that it could expand liability for first-degree sex offenses too far.
Sandrock agreed that to prove a non-consent, the state would have to prove that the victim had communicated (explicitly or implicitly) his or her non-consent and that “since the defendant’s intent has to go to each and every element of the crime, * * * there has to be proof that he was doing it knowing that it was without her consent.” Tape Recording, Senate Committee on Judiciary, SB 713,
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April 7, 1983, Tape 85, Side A (statement of Peter Sandrock).10 Sandrock worked with a representative of the defense bar to craft a proposed amendment, which would have added a definition of “does not consent” to the general definition statute (ORS 163.305): “Does not consent” means that a person “does not presently and voluntarily agree, by word or conduct, to engage in the sexual contact at issue, and that the defendant know at the time of the sexual contact that person did not so agree.” Exhibit A, Senate Judiciary Committee, SB 713,
May 26, 1983 (emphasis added).
But rather than adopt that amendment to SB 713, the Senate Judiciary
Committee gutted almost all the proposed changes to “forcible compulsion” in
SB 713 and took out the “does not consent” language. Instead, the committee amended the bill to remove the term “serious” from the definition of “forcible compulsion,” thereby expanding the class of first-degree felonies to include instances in which the defendant compelled the victim to engage in sex through
10 District Attorney Sandrock’s suggestion that knowledge would be the culpable mental state because “defendant’s intent has to go to each and every element of the crime” suggests that he was thinking of ORS 161.115, which provides that, “If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state.” However, that statute was not applicable, because SB 483 did not prescribe any culpable mental state. Although Sandrock repeatedly stated that the state would have to prove the defendant knew the victim did not consent, the question of whether a lower mental state such as recklessness or criminal negligence might suffice was not raised or discussed. 37 an express or implied threat of physical injury (as opposed to “serious physical injury”). Laws 1983, ch 564, § 1. Because “the victim does not consent” language was no longer in the bill, the proposed amendment adding a definition for that phrase was no longer needed.
Concern about the meaning of “the victim does not consent” language arose again, however, when the Senate Judiciary Committee was considering
SB 483. At the time, first-degree sexual abuse was defined as subjecting a person to sexual contact through forcible compulsion, which was a Class C felony. See Ofodrinwa, 353 Or at 518 (explaining history). SB 483 added an additional way of committing the crime without forcible compulsion, i.e., by subjecting someone to sexual intercourse, sodomy, or sexual penetration where the person “does not consent.” Id. Sandrock explained that the purpose of SB
483 was to address a gap in the scheme: at the time, rape or sodomy by forcible compulsion was a Class A felony, but if the state was unable to prove that
“forcible compulsion” occurred, the next available crime was (then) second-
(now third-) degree sexual abuse, ORS 163.415, which was a Class A misdemeanor. Sandrock explained that sexual intercourse or sodomy with a non-consenting victim was worse conduct than mere non-consensual sexual touching, and that it should be punished more severely even if the state could not prove that the intercourse or sodomy involved forcible compulsion. Id. at
520-21. 38
When SB 483 was in a work session in the Senate Judiciary Committee,
Senator Hendricksen asked about a proposed amendment to add to SB 483 the definition of “does not consent” that Sandrock previously had helped to draft for SB 713 (that included the knowing mental state) but that was ultimately not needed for that law. Tape Recording, Senate Committee on Judiciary, SB 483,
June 7, 1983, Tape 189, Side B (statement of Margie Hendricksen). Counsel for the committee, Nina Johnson pointed out that “does not consent” was already an element of ORS 163.415, and had not previously been define. Id. The committee proceeded to discuss whether the definition was really needed. Id.
During that discussion, Senator Gardener asked Senator Hendricksen if the definition “appeared alright” to her. Id. Senator Hendricksen hesitated, noting that there had not been much public testimony regarding what “does not consent would mean.” Id. Gardener noted that it was a critical element, and
Hendricksen agreed, saying that she would rather leave the definition out of SB
483 “as long as there is a case law definition” of “does not consent.” Id. Ms.
Johnson, explained that the proposed definition of “does not consent” had been drafted in the context of SB 713, which had proposed a “major rewrite” of the first-degree sexual offenses and that, in that context, it was believed that the definition was needed. Id. Ms. Johnson opined that there was no need to include a definition of “does not consent” in SB 483, however, agreeing with Senator
Gardener that courts had already interpreted in the context of ORS 163.415. Id. 39
When Gardener suggested the committee could not include any definition and just assume that the existing interpretation for ‘does not consent” that already applied to ORS 163.415 would apply to the new law, Ms. Johnson said that she thought that would work. Id. Hendricksen and Gardener both expressed a preference for not including the definition, with Gardener indicating he wanted to leave it out to “track the methodology of the existing law.” Id.
One of the committee members, Senator Walter Brown, asked if the definition proposed and “the requirement of knowledge that is in that definition have any basis in the current law?” Id. Ms. Johnson suggested that it did not, responding that, “This would not be what a jury would be instructed on this issue I do not think.” Id. Senator Brown then observed that having a
“knowledge” mental state as part of a definition was unusual. Id. Ms. Johnson agreed, noting that legislative counsel’s office had pointed out that the definition was unusual in that respect. Id.
Following that discussion, the committee decided not to add to the bill definition of “does not consent” that Sandrock had drafted. Id.
During that same work session, the committee members discussed how the bill would cover circumstances in which the victim was intimidated even though not injured or threatened. Senator Wyers expressed his support for the bill, explaining that there were many cases of “people pushing others into sex” and this needed to be dealt with, stating that “some people must think about 40 pushing people when they want sex” and noting that if the legislature “got the word out that if both parties did not agree it was a crime, it would make a difference.” Id. (statement of Jan Wyers).
At the end of the work session, the committee voted to send the bill to the floor with a do-pass recommendation.
SB 483 then went to House Judiciary Committee. Before that committee,
Sandrock talked about the definition of “does not consent” that he had helped to write and said that he was not sure why it was not added but suggested it may have been “overlooked.” Ofodrinwa, 353 Or at 518 (citing Tape Recording,
House Committee on Judiciary, SB 483, June 30, 1983, Tape 486, Side A).
Senator Hendricksen, who was also in attendance, said that the Senate Judiciary
Committee had thought it was “redundant” and unnecessary but that she was not opposed to it. Id. Sandrock agreed that a definition was not needed and reiterated his view that, under settled law, the state already had to prove that the defendant knew that the victim did not consent and that it was “fundamental precept of criminal law that the mental element of the crime—in this case it would be intentionally or knowingly—applies to every other element of the crime.” Id. The House Judiciary Committee then unanimously sent the bill to the floor with do-pass recommendation.
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b. The history does not show that the “victim does not consent” element is a conduct element.
In his brief, defendant claims that the legislative history of SB 483
“conclusively” shows that the legislature intended that a knowing mental state would apply to the “victim does not consent” element. (Defendant’s BOM at
36). As the preceding description shows, however, the history is far from conclusive. Indeed, it is ultimately difficult to glean much from the history that bears on the question at issue. On the whole, the history suggests that the legislature left the mental-state question to be resolved by the courts under existing principles of law.
As defendant points out, Sandrock told legislators in both the Senate and
House Judiciary committees that it was settled law that the mental state for the victim’s lack of consent would be knowingly. But that was not an accurate statement of the law. As noted, under ORS 161.085, if no mental state was included in the law, then the culpable mental state that attaches to an element depends on whether it describes conduct or a circumstance. And no Oregon case up to that point had even considered whether the victim’s lack of consent to a sexual offense was a circumstance or conduct element. Indeed, it was not until decades later, when the Court of Appeals decided Wier and concluded that the minimum culpable mental state of ORS 163.415 was criminal negligence, that that issue was first addressed. 42
It is not clear what role Sandrock’s mistaken representation of the then- current state of the law had on the thinking of the legislators’ to whom he spoke, particularly given the suggestion by committee counsel that Sandrock’s proposed definition did not accurately capture the current law. But ultimately that is beside the point. What matters is not the unspoken understanding of the law that legislators might have had, but the meaning of the text of the law that the legislature enacted. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) (“[I]t is not the intent of the individual legislators that governs, but the intent of the legislature as formally enacted into law[.]"); see also State v. Guzek, 322 Or
245, 260, 906 P2d 272 (1995) (testimony of representative of Oregon District
Attorneys Association “says little about the intent of the Oregon Legislative
Assembly as a whole”). In that regard, this much, at least, is clear: the legislature ultimately chose not to specify a culpable mental state anywhere in
ORS 163.425. In fact, the legislature considered and rejected Sandrock’s proposed amendment that would have specified that the mental state was knowingly. As a result of that choice, the minimum culpable mental state depends on whether “victim does not consent” element describes the proscribed act itself or describes a fact that accompanies the defendant’s conduct. But nothing in Sandrock’s testimony speaks to that particular question.
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3. Consideration of the seriousness of the punishment and gravity of the harm also supports that conclusion.
Just as was the case for ORS 163.415, comparing the punishment that is imposed for ORS 163.425 with the conduct that it prohibits provides further support for the conclusion that the “victim does not consent” element is a circumstance for which a mental state of recklessness or criminal negligence suffices to establish culpability. Unlike ORS 163.415, which is a misdemeanor,
ORS 163.425 is a Class C felony. But that reflects the more serious nature of the conduct that is at issue: ORS 163.415 involves any form of “sexual contact,” while ORS 163.425 is limited to only the most serious forms of such contact—sexual intercourse, sodomy, and sexual penetration. While it may be unlikely or surprising that the legislature would want felony liability to attach to using a car without consent if a person mistakenly believes he or she has consent, it is hardly surprising that the legislature would impose criminal liability for a person who subjects another to sexual intercourse while being criminally negligent in failing to be aware that the victim did not consent. On the contrary, it is likely that the legislature would have intended to require persons having sexual intercourse to make themselves aware of whether their partner is consenting.
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D. There is no inconsistency in non-consent being a circumstance for purposes of sexual abuse and conduct for purposes of UUV.
In this case, the crux of defendant’s argument is that the reasoning this court applied in Simonov to the victim’s lack of consent to UUV ought to apply with equal force to ORS 163.425, and that just as the victim’s lack of consent is part of the essential character the of act proscribed by the UUV statute, the victim’s lack of consent to sexual intercourse is an essential part of the act proscribed by ORS 163.425. For all the reasons discussed above, the text, context, and history of the sexual abuse statutes lead to a different conclusion.
For those statutes, the victim’s lack of consent is a circumstance. Defendant’s argument to the contrary proceeds from a mistaken understanding of what this court meant by the “essential character of the proscribed act,” and fails to recognize the myriad ways that the sex abuse statutes differ from the UUV statutes.
1. Unlike in the UUV statute, the victim’s lack of consent is not part of the essential character of the acts proscribed by the sexual abuse statutes.
Defendant contends that non-consent is essential to the character of the act proscribed by ORS 163.425, because it is non-consent that transforms an otherwise natural and lawful act into something illegal. But in advancing that argument, defendant conflates what is essential to the crime with what is essential to the act that the statutes proscribe. 45
To be sure, defendant is correct that the victim’s lack of consent is what transforms otherwise natural and lawful conduct into criminal behavior. For that reason, the victim’s lack of consent is an essential part of the crime. Indeed, the victim’s lack of consent is the sine qua non of all the sexual offenses set forth in
ORS Chapter 163. But that just means that the victim’s lack of consent is an essential element of all those offenses. There is a difference between an element being essential to a criminal offense and an element being part of the nature or essential character of the act that the offense prohibits.
To illustrate that difference, it is helpful to contrast the nature of the act proscribed by UUV statutes and acts that are proscribed by ORS 163.425. As this court explained in Simonov, the UUV statute was meant to address
“joyriding” in another person’s vehicle—conduct which by its nature is knowingly done without the owner’s consent. It is not possible to engage in joyride by mistake; if a person does not know they lack permission to be the car, then what they are doing is not joyriding. A knowing mental state, in other words, is a defining feature of the kind of conduct that the UUV statute proscribes, and that mental state is essential to making it blameworthy and criminally culpable.
The same cannot be said with respect to sexual abuse. Certainly it is true that subjecting a person to sexual intercourse knowing the person does not consent is reprehensible and culpable conduct. But so is subjecting a person to 46 sexual intercourse while being willfully ignorant of the fact that they do not consent or while being grossly negligent in failing to be aware of that fact. The latter often occurs in instances of what is colloquially referred to as “date rape”—and it too is reprehensible and culpable conduct, and, unfortunately, all too common. Acquaintance rape or “date rape” occurs with tragic regularity in
Oregon and throughout the country.11 While the legislature might have intended the UUV statute to reach only knowingly using a car without permission, there is no basis in the text, history, or purpose of the sex abuse
11 The Centers for Disease Control and Prevention reports that an estimated 19.3% of women and 1.7% of men, nationally, experience rape in their lifetimes. Centers for Disease Control and Prevention, Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States, 2011, 63 Surveillance Summaries No. 8, 4 (2014). An estimated 46.7% of female rape victims knew the offender and that offender was an intimate partner for an estimated 45.4% of female rape victims. Id. at 6. For men, an estimated 44.9% of rape victims knew the offender and an estimated 29% were raped by an intimate partner. Id. In Oregon, the situation is even worse. The CDC reports that an estimated 26.3% of women and 5.5% of men in Oregon experience rape in their lifetimes. S.G. Smith, J. Chen, K.C. Basile, L.K. Gilbert, M.T. Merrick, N. Patel, M. Walling, and A. Jain, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010-2012 State Report, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 34, 68, (2017). An estimated 48.8% of female rape victims and an estimated 37.7% of male rape victims in Oregon were raped by a current or former intimate partner. Id. at 50, 75. Acquaintance rape occurs with particular frequency for women aged 18 to 24, with the offender being known to the victim in 80% of cases. Mary Graw Leary, Affirmatively Replacing Rape Culture with Consent Culture, 49 Tex Tech L Rev 1, 16 (2016). 47 statutes to conclude that the legislature intended the sex abuse statutes to be limited in that way.
One of the things that distinguishes a crime like “joy riding” from a crime like “date rape” is that a person who is “joyriding” is choosing to engage in a kind of act that by its nature involves a lack of consent. But a person who commits “date rape” does not necessarily set out to engage in non-consensual intercourse—the aim is to have intercourse, regardless of whether or not the victim consents. In other words, the lack of consent is a circumstance separate from that perpetrator’s aim.
“Date rape” happens when a person subjects another to intercourse without the person’s consent. Sometimes, certainly, the perpetrator of a date rape acts knowingly. But date rape also happens, as in this case, when the perpetrator willfully disregards obvious signs that the victim does not consent.
And it happens because the perpetrator does not much care whether the person consents and does not bother to ascertain whether they consent. Those are circumstances in which the crime of date rape happens, and those are all circumstances that the legislature intended ORS 163.425 to reach.
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2. Sexual abuse also is unlike UUV in myriad other ways that make a lower culpable mental state appropriate.
There are also several other ways in which sexual abuse is fundamentally different from UUV and that explain why a different culpable mental state applies to those crimes.
First, as alluded to above, subjecting a person to sexual intercourse without the person’s consent imposes a harm far more severe and lasting than
“joyriding” in someone’s car. The victim in this case, for example, explained that she was “shattered” by the experience, which left her with nightmares and memories that would haunt her for the rest of her life. (Tr 283). In addition, if a person mistakenly uses someone else’s car, it is easy enough to rectify any harm. That is not so with crimes like the one that occurred here, where the damage once done cannot be undone.
Second, the ease with which a mistake can be avoided also distinguishes the two crimes. In the context of UUV, an honest but mistaken belief that someone has permission to use a car could arise in various ways, including where the owner was not present or where it might be difficult to reach the owner and determine whether one has permission. But sexual abuse by its nature involves an encounter where the defendant and the victim are together, and it is never difficult to clarify whether someone consents to sexual contact before subjecting the person to that contact. In this case, given what the victim 49 said and did, defendant could have and should have been aware that the victim did not want him to subject her to sexual intercourse, and that he was hurting her. In fact, the jury found that defendant was aware of a substantial risk that that the victim did not want him to subject her to sexual intercourse and consciously disregarded that risk and subjected her to sexual intercourse anyway.
Third, because of the severity of the harm and the ease with which it could be avoided, the moral opprobrium and culpability that attaches to
“mistakenly” subjecting someone to sexual intercourse without that person’s consent is significant. People who subject others to sexual contact without regard to their lack of consent are culpable, and making such behavior criminal helps to ensure that people do not act that way. “Criminal negligence” requires
“a gross deviation from the standard of care that a reasonable person would observe in the situation.” ORS 161.085. If a person grossly deviates from the standard of care that should be observed, and as a result of that “gross deviation” subjects a person to sexual intercourse to which he or she did not consent, that is behavior that is worthy of criminal punishment. That is why the majority of jurisdictions recognize that sexual abuse does not require a knowing
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/// 50 mental state.12 Under defendant’s view of the law, however, even recklessly subjecting a person to sexual intercourse without that person’s consent is not a crime at all.
12 See, e.g., United States v. McDonald, 78 MJ 376, 381 (CAAF 2019) (“[n]o mens rea is required with regard to consent” for the purposes of sexual assault); State v. Mayfield, 442 P3d 794, 798 (Alaska Ct App 2019) (the required mental state for the lack of consent element of first-degree sexual assault is recklessness); Efstathiadis v. Holder, 317 Conn 482, 497, 119 A3d 522 (2015) (the required mental state for the lack of consent element of fourth- degree sexual assault is criminal negligence); Buford v. State, 492 So 2d 355, 359 (Fla 1986) (sexual battery is not a specific-intent crime); Askew v. State, 118 So 2d 219, 222 (Fla 1960) (same for rape); State v. Lopez, 126 Idaho 831, 834, 892 P2d 898 (1995) (holding that rape only requires proof of intent to commit the act, not the defendant’s mental state); State v. Christensen, 414 NW 2d 843, 846–47 (Iowa 1987) (“a defendant’s mistake of fact as to that consent would not negate an element of the offense” because “third-degree sexual abuse is a general intent crime”); State v. Lile, 237 Kan 210, 212, 699 P2d 456 (1985) (holding that rape requires “a general intent to commit the prohibited act” but “there is no requirement that there be a specific intent to commit rape”); Commonwealth v. Lopez, 433 Mass 722, 728, 745 NE 2d 961 (2001) (holding that rape is strict liability with respect to the victim’s nonconsent); Roberson v. State, 501 So 2d 398, 401 (Miss 1985) (“the intent to do the forbidden act is the only intent necessary to complete the offense” of sexual battery); State v. Ayer, 136 NH 191, 195, 612 A2d 923 (1992) (“If, however, the victim objectively communicates a lack of consent and the defendant subjectively fails to receive the message, he is guilty”); State v. Oliver, 133 NJ 141, 155–56, 627 A2d 144 (1993) (holding that a defendant’s belief that a victim consented to sexual contact for the purposes of sexual assault must be reasonable); State v. Elmore, 54 Wash App 54, 57, 771 P2d 1192 (1989) (holding that third-degree rape is strict liability with respect to the victim’s nonconsent).
The states that do require a knowing mental state do so because it is required by statute. See State v. Witwer, 175 Ariz 305, 308, 856 P2d 1183 (1993) (holding that the required mental state for lack of consent for sexual abuse was knowledge where the proscribed mental state in Arizona’s sexual abuse statute was “intentionally or knowingly”); Chambers v. People, 682 P2d Footnote continued… 51
Fourth, there are multiple sexual abuse statutes that encompass different degrees of crime seriousness, while for UUV, there is only one crime and it is a
Class C felony. There are three degree of sexual abuse, and those are a Class A felony, a Class C felony, and a Class A misdemeanor. The different levels of crime seriousness for sexual offenses like sex abuse reflect different levels of culpability. One of the reasons that first-degree sexual offenses are the most serious and blameworthy is that the perpetrator knew that the victim did not consent and subjected the victim to sexual intercourse anyway. See Samuel H.
Pillsbury, Crimes of Indifference, 49 Rutgers L Rev 105, 164 (1996)
(“[A]lthough treated in rape law as an independent element, force often operates as a proxy for awareness of nonconsent.”) Second- and third- degree sexual abuse involve less significant punishments and it is therefore appropriate that they would require lower culpable mental states. Cf. State v. Boone, 294 Or
630, 634, 661 P2d 917 (1983) (noting assault statutes are divided into varying degrees depending in part on different level of culpable mental state involved).
Given defendant’s conduct in this case, for example, the presumptive sentence
(…continued) 1173, 1179 (Colo 1984) (“the offense of first degree sexual assault requires that the actor be aware of the circumstance of the victim’s nonconsent” where Colorado’s sexual assault statute, CRS § 18-3-402, includes a “knowingly” mens rea term); State v. Adams, 10 Haw App 593, 605, 880 P2d 226 (1994) (holding that the required mental state for lack of consent for second-degree sexual assault was knowledge where Hawaii’s sexual assault statute required a person to act “knowingly”). 52 the court imposed—five years’ probation and 60 days in jail—is not surprising or unjustified. Yet if defendant’s view of the law were correct, a person who recklessly subjected a victim to nonconsensual sexual intercourse as he did in this case would not be guilty even of misdemeanor sexual abuse.
Finally, if proof of a knowing mental state were required for second- and third-degree sexual abuse, successfully prosecuting acquaintance rape cases would require evidence that the victim fought and protested enough to remove any reasonable doubt that the defendant knew she did not consent. Direct proof of defendant's knowledge is never available; the jury is forced to infer it from the circumstances. If second- and third-degree sexual abuse required a knowing mental state with regard to lack of consent, the law would effectively place the burden on the victim to protest and fight. ORS 163.425 was enacted to fill the
“gap” that existed between rape involving forcible compulsion, which is a Class
A felony, and sexual contact to which the victim does not consent, which is a
Class A misdemeanor. See Ofodrinwa, 353 Or at 521 (explaining history). The legislature wanted to reach cases, like this one, where rape victims do not consent but are “pushed into having sex” and are frozen in fear or trauma or who decide not to fight in the interest of self-preservation. Requiring proof beyond a reasonable doubt that a defendant knew that the victim did not consent would shift the burden back on the victim to prove that she protested and fought enough to persuade a jury that defendant was not merely reckless or criminally 53 negligent, but knew that the victim did not consent. Such proof is not required to show criminal culpability, and requiring it would eviscerate the intended distinction between first-degree rape and second-degree sexual abuse. If the facts show beyond a reasonable doubt that the defendant willfully turned a blind eye to the victim’s lack of consent or was criminally negligent in failing to be aware of it, that is sufficient to prove second- or third-degree sexual abuse.
Ultimately, the legislature enacted the sexual abuse statutes to address concerns entirely different from UUV. Unlike UUV, where a knowing mental state is what defines the proscribed conduct and makes that conduct blameworthy, a knowing mental state is not required to make subjecting a person to nonconsensual sexual contact a crime. Rather the crime consists of engaging in a physical act (subjecting someone to sexual intercourse) in a particular circumstance (where that person does not consent). Subjecting someone to sexual contact to which the person does not consent while consciously disregarding a substantial risk that the person does not consent or being criminally negligent in failing to be aware of such a risk is harmful, blameworthy, and criminal under ORS 163.415 and ORS 163.425.
E. Because the “victim does not consent” element in ORS 163.425 is a circumstance, the trial court did not err in instructing the jury and entering a judgment of conviction based on its verdict.
For all the reasons described above, the victim’s lack of consent is a circumstance element for ORS 163.425. Under ORS 161.085, therefore, 54 criminal negligence is the minimum culpable mental state that applies to that element. It follows that the trial court did not err in instructing the jury in this case, and it did not err in entering a judgment of conviction based on the jury’s finding that defendant was reckless in failing to be aware of the victim’s lack of consent.
CONCLUSION
This court should affirm the Court of Appeals.
Respectfully submitted,
ELLEN F. ROSENBLUM Attorney General BENJAMIN GUTMAN Solicitor General
______/s/ Michael A. Casper MICHAEL A. CASPER #062000 Senior Assistant Attorney General [email protected]
Attorneys for Respondent on Review State of Oregon NOTICE OF FILING AND PROOF OF SERVICE
I certify that on February 3, 2020, I directed the original Corrected Brief on the Merits of Respondent on Review, State of Oregon, to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Ernest Lannet and Neil F. Byl, attorneys for petitioner on review, by using the court's electronic filing system.
CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(1)(d)
I certify that (1) this brief complies with the word-count limitation in
ORAP 5.05(1)(b) and (2) the word-count of this brief (as described in ORAP
5.05(1)(a)) is 13,611 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(3)(b).
______/s/ Michael A. Casper MICHAEL A. CASPER #062000 Senior Assistant Attorney General [email protected]
Attorney for Respondent on Review State of Oregon
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