State v. Goacher

783

Submitted June 26, 2019, affirmed April 29, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

AUSTIN CHRISTOPHER GOACHER,

Defendant-Appellant.

Washington County Circuit Court

17CR70622; A166653

466 P3d 1047

Defendant appeals from a judgment of conviction for one count of second-

degree sexual abuse. He assigns error to the condition of probation that requires

him to report as a sex offender. He advances a class-based and individual-based

theory to argue that ORS 163A.140 violates Article I, section 20, of the Oregon

Constitution by exempting other similarly situated classes and individuals

from the reporting requirement, but not granting that exemption to him on the

same terms. Held: The trial court did not err in imposing sex offender reporting

requirements. As to his class-based claim, defendant did not identify another

group that benefits from the exemption in ORS 163A.140 on terms unequal to

those imposed on the groups to which he claims membership in. As to his indi-

vidual claim, defendant did not show that, when the district attorney made the

charging decision that removed the potential for an exemption, he or she acted

with a discriminatory or illegitimate motive or had no defensible explanation for

his or her action.

Affirmed.

Kirsten E. Thompson, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kristin A. Carveth, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Doug M. Petrina, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Egan, Chief Judge,

and Mooney, Judge.

MOONEY, J.

Affirmed.

784 State v. Goacher

MOONEY, J.

Defendant appeals from a judgment of conviction

for one count of second-degree sexual abuse, ORS 163.425,

assigning error to the condition of probation that requires

him to report as a sex offender. He raises a constitutional

challenge to ORS 163A.140, under Article I, section 20, of

the Oregon Constitution (the equal privileges and immuni-

ties clause), contending that the exemption from sex offender

reporting that the statute provides is not available to him

upon the same terms as it is to others similarly situated.

He advances a class-based theory and an individual-based

theory and argues that there is no rational basis to require

those convicted of second-degree sexual abuse to register

and report as sex offenders but to exempt those convicted of

third-degree rape from that requirement. The state responds

that ORS 163A.140 does not violate Article I, section 20, and

that defendant has not shown that the statute deprives him,

individually, of any privilege or immunity available to all

citizens. We agree with the state and affirm.

Whether application of a law complies with Article I,

section 20, is a question of law. See State v. Clark, 291 Or 231,

241-43, 630 P2d 810, cert den, 454 US 1084 (1981) (applying

that standard). We review for legal error.

Defendant had sexual intercourse with a 16-year-

old child when he was 20 years old. He first met the vic-

tim online through a dating app. Their first in-person con-

tact occurred when defendant picked the victim up at her

high school. They had sexual intercourse on their second

contact. Defendant was later charged with second-degree

sexual abuse, ORS 163.425, which makes it a Class C fel-

ony to “subject[ ] another person to sexual intercourse * * *

and the victim does not consent thereto.” The victim’s lack

of capacity to consent due to her age was the basis for the

lack of consent element of the charge, which is sufficient for

second-degree sexual abuse. State v. Ofodrinwa, 353 Or 507,

532, 300 P3d 154 (2013). Defendant pleaded guilty to the

charge, was convicted of second-degree sexual abuse, and

was sentenced to five years of probation on a stipulated sen-

tence. At issue is the condition of probation requiring defen-

dant to register as a sex offender for life and his inability

Cite as 303 Or App 783 (2020) 785

to qualify for exemption from that requirement under ORS

163A.140.

It is almost always a crime for an adult to have sex-

ual intercourse with a person under 18 years of age. The

criminal charges that a district attorney might file depend

on various factors, including the age of the victim, mental

capacity of the victim, and the perpetrator’s relationship to

the victim. Generally speaking, the younger the victim, the

more serious the crime. First-degree rape, a Class A felony,

includes sexual intercourse when the victim is under 12

years of age. ORS 163.375. Second-degree rape, a Class B

felony, includes sexual intercourse with another person

under 14 years of age. ORS 163.365. Third-degree rape, a

Class C felony, includes sexual intercourse with another

person under 16 years of age. ORS 163.355.

Second-degree sexual abuse, a Class C felony,

includes, among other things, sexual intercourse when the

victim does not consent. ORS 163.425. Lack of consent could

be because the victim did not, in fact, consent or that the

victim lacked legal capacity to consent by reason of age or

mental capacity. Ofodrinwa, 353 Or at 532. Contributing to

the sexual delinquency of a minor, a Class A misdemeanor,

prohibits, as relevant here, a male from engaging in sex-

ual intercourse with a female under 18 years of age. ORS

163.435. Sexual misconduct, a Class C misdemeanor, pro-

hibits sexual intercourse with an unmarried person under

18 years of age. ORS 163.445.

Defendant’s conduct—sexual intercourse with a

16 year old—does not fit the definition of first-, second-, or

third-degree rape. It does qualify, and could be charged

as, second-degree sexual abuse, contributing to the sexual

delinquency of a minor, or sexual misconduct. Defendant

argues that, because second-degree sexual abuse is the only

felony that applies “to a defendant whose criminal act was

solely sexual intercourse with a 16- to 1[7]-year-old minor,”

it essentially functions as a kind of “fourth-degree rape.”

But, the crime of “fourth-degree rape” does not exist under

Oregon law, and defendant’s use of the term adds confu-

sion rather than clarity to the discussion. We understand

defendant’s use of the term “fourth-degree rape” to refer

786 State v. Goacher

to nonforcible sexual intercourse with a 16- or 17-year-old

minor child. Second-degree sexual abuse would include non-

forcible sexual intercourse with a 16- or 17-year-old minor

child, but it is broader than that and would include other

conduct. It would, for example, include nonforcible sexual

intercourse with a 14- or 15-year-old minor child. In fact,

sexual intercourse with any minor child could be charged as

second-degree sexual abuse.

When, as here, a person engages in conduct that

can be charged under multiple statutes, the district attor-

ney has discretion to select the most appropriate charge.

ORS 8.670 requires district attorneys to institute court

proceedings for the arrest of persons reasonably charged

with or suspected of crimes when they have information

that such crimes occurred and to utilize grand juries when

required. A district attorney’s power is not wholly ministe-

rial, but instead requires the exercise of discretion in “how

and who to prosecute or sue in the name of the state.” Watts

v. Gerking et al., 111 Or 641, 657, 228 P 135 (1924) (quoting

Farrar v. Steele, 31 La Ann 640 (1879)).

A person convicted of any of the above sex crimes

must register and report as a sex offender. ORS 163A.010

(outlining the sex offender reporting requirements); ORS

163A.005(5) (defining sex crime). ORS 163A.140, however,

provides an exemption from the reporting requirement for

offenders who are convicted of a qualifying offense and who

meet certain other criteria, as follows:

“A person otherwise required to report under ORS

163A.010 * * * is not required to report * * * if:

“(1)(a) The person has been convicted of:

“(A) Rape in the third degree as defined in ORS

163.355;

“(B) Sodomy in the third degree as defined in ORS

163.385;

“(C) Sexual abuse in the third degree as defined in

ORS 163.415;

“(D) Contributing to the sexual delinquency of a minor

as defined in ORS 163.435;

Cite as 303 Or App 783 (2020) 787

“(E) Sexual misconduct as defined in ORS 163.445;

***

“* * * * *

“(2)(a) The person is less than five years older than the

victim;

“(b) The victim’s lack of consent was due solely to inca-

pacity to consent by reason of being less than a specified

age;

“(c) The victim was at least 14 years of age at the time

of the offense or act;

“* * * * *

“* * *; and

“(3) The court enters an order relieving the per-

son of the requirement to report under ORS 163A.145 or

163A.150.”

Defendant was not charged with or convicted of a qualifying

offense, and, therefore, he is not eligible for an exemption to

the sex offender reporting requirement.

We now turn to defendant’s arguments. He con-

tends, first, that ORS 163A.140 violates the equal privileges

and immunities clause of the Oregon Constitution because

it does not grant a reporting exemption on the same terms

to all persons who have had sexual intercourse with persons

between the ages of 14 and 18 or, more broadly, to all sex

offenders. He also argues that the statute violates the priv-

ileges and immunities clause, as applied to him as an indi-

vidual, because it denied him a reporting exemption that

others similarly situated were granted. Article I, section 20,

provides:

“No law shall be passed granting to any citizen or class

of citizens privileges, or immunities, which, upon the same

terms, shall not equally belong to all citizens.”

That provision prohibits “inequality of privileges or immu-

nities not available upon the same terms, first, to any citi-

zen, and second, to any class of citizens.” Tanner v. OHSU,

157 Or App 502, 520, 971 P2d 435 (1998), rev den, 329 Or

528 (1999).

788 State v. Goacher

We begin with defendant’s contention that his

Article I, section 20, rights were violated as a member of

a class. He must show that (1) he is a member of a group

that is a “true class,” (2) ORS 163A.140 grants another

group a privilege or immunity that defendant’s group has

not been granted, (3) the differential treatment is based

on characteristics the group has that are apart from the

statute, and (4) the differential treatment has no rational

basis. Withers v. State of Oregon, 163 Or App 298, 306, 987

P2d 1247 (1999), rev den, 331 Or 284 (2000). See generally

Tanner, 157 Or App at 525 (concluding that Oregon Health

and Science University violated Article I, section 20, when it

denied health and life insurance benefits to the unmarried

domestic partners of its homosexual employees).

As already mentioned, defendant contends that he

is a member of two true classes: (1) people who have had

sexual intercourse with minor children between 14 and 18

years of age and (2) sex offenders. He then argues that ORS

163A.140 grants a privilege—exemption from the reporting

requirement—to class members on unequal terms. Finally,

he argues that there is no rational basis to require those

convicted of second-degree sexual abuse to register and

report as sex offenders but to exempt those convicted of

third-degree rape from that requirement. The state counters

that ORS 163A.140 does not implicate Article I, section 20,

because defendant is not a member of a true class, Tanner,

157 Or App at 520 (“only laws that disparately treat a ‘true

class’ may violate” Article I, section 20), and, even if that

constitutional provision is implicated, there is no viola-

tion because there is a rational basis for any differential

treatment.

Defendant defines his “class” in such a way that it

does not implicate Article I, section 20, and instead defeats

his class-based theory. That is so regardless of whether the

group qualifies as a “true class,” an issue we need not, and

do not, reach. His identified class includes all sex offenders

or, short of that, all persons who have had sexual inter-

course with minor children between 14 and 18. But, he does

not identify another group that benefits from the exemption

of ORS 163A.140 on terms unequal to those imposed on his

Cite as 303 Or App 783 (2020) 789

group. Instead, he argues that some members of his class

are granted the exemption that is denied to other members

of the same class without rational basis for the distinction.

And, while defendant’s argument that it is not rational to

require a person who has sexual intercourse with a 16- or

17-year-old to report as a sex offender but not require the

same of one who has sexual intercourse with a 14- or 15-year-

old strikes a chord, it does not support the class-based priv-

ileges and immunities claim he has developed in this case.

See Tanner, 157 Or App at 525 (an Article I, section 20, viola-

tion when all members of the defendant’s class (homosexual

couples) were denied a privilege granted to all those outside

of the defendant’s class (heterosexual couples)).

The key prohibition of the equal privileges and

immunities clause is unequal treatment of classes—not

within classes. An Article I, section 20, challenge to a statute

on a class-based theory must raise the question of whether

defendant, as a member of the class, is denied a “privilege”

or “immunity” that is granted to members of similarly sit-

uated classes. Defendant must show that all members of

his class are denied a privilege that people outside the class

are granted. But not all persons who have sexual inter-

course with minor children, ages 14, 15, 16, or 17, are denied

exemption from the reporting requirement. Defendant

has not shown that all members of the classes he identi-

fies are denied exemption from the reporting requirement

when members of similarly situated classes are granted the

exemption.

Defendant relies on the premise that it is his con-

duct alone (i.e., having unconsented sexual intercourse with

a 16-year-old victim) that precludes him from the reporting

exemption available to other defendants who commit crimes

involving more serious conduct (e.g., unconsented sexual

intercourse with a 14- or 15-year-old victim). That presump-

tion is not accurate because it is not defendant’s conduct

that grants or denies him access to the reporting exemption.

It is the state’s decision, made through the district attorney,

to charge defendant with a particular statutory crime as a

result of that conduct that grants or denies the reporting

exemption.

790 State v. Goacher

Defendant’s conduct led to him being charged

with and convicted of second-degree sexual abuse, which

is a felony. That same conduct could have led to a charge

of contributing to the sexual delinquency of a minor, ORS

163.435, or sexual misconduct, ORS 163.445, which are

both misdemeanors. Had defendant been convicted of either

of those crimes instead of second-degree sexual abuse, he

would have been eligible for the reporting exemption. ORS

163A.140. Another defendant who engages in the same crim-

inal conduct can also be charged with any of the same three

offenses. Relatedly, a person who has sexual intercourse

with a 14- or 15-year-old can be charged with third-degree

rape (exempt) or second-degree sexual abuse (not exempt).

It is not membership in one of the classes that defendant

identifies that controls the grant or denial of the privilege

he seeks; it is the state’s decision to charge him with a par-

ticular crime. Because not all sex offenders and not all per-

sons who have sexual intercourse with minors are denied a

privilege made available to people outside of the identified

class, defendant has not established unequal treatment on a

class-based theory, and we, therefore, reject his class-based

claim.

We turn to defendant’s argument that his individ-

ual rights under Article I, section 20, were violated. Article I,

section 20, prohibits the “unjustified denial of equal privi-

leges or immunities to individual citizens at least as much

as against unjustified differentiation among classes of citi-

zens.” Clark, 291 Or at 239.

“To bring an individual-based claim under Article I, section

20, a defendant must initially show that the government in

fact denied defendant individually an equal privilege with

other citizens of the state similarly situated. An agency or

official’s decision will comply with Article I, section 20, as

long as no discriminatory practice or illegitimate motive is

shown and the use of discretion has a defensible explana-

tion in the individual case. An executive official’s decision

will be defensible when there is a rational explanation for

the differential treatment that is reasonably related to the

official’s task or to the person’s individual situation.”

State v. Savastano, 354 Or 64, 96, 309 P3d 1083 (2013) (inter-

nal citations, quotation marks, and alterations omitted).

Cite as 303 Or App 783 (2020) 791

Defendant’s individual-based argument under

Article I, section 20, is similar to his class-based claim inso-

far as he argues that the privilege of being exempted from

sex offender reporting was denied to him but is available

to others in similar situations. He argues that the differen-

tial treatment is irrational in scope. Individual- and class-

based arguments under the equal privileges and immuni-

ties clause may be “interrelated,” as they are here, but they

are distinct constitutional claims that require different

analyses. Clark, 291 Or at 237. A person who brings both a

class-based and an individual-based claim must sufficiently

develop an argument as to each. Id. at 238 (class-based and

individual-based Article I, section 20, claims provide “two

distinct grounds of attack”); Savastano, 354 Or at 68 (“This

court’s cases have analyzed separately individual-based

claims * * * and class-based claims.”).

Defendant argues that he was, in fact, denied the

privilege of exemption because of his individual situation.

There is no question that defendant’s criminal conduct

led to a decision by the district attorney to charge defen-

dant under ORS 163.425 rather than ORS 163.435 or ORS

163.445. And, there can be no doubt that different charging

decisions have been made regarding other persons who, like

defendant, had sexual intercourse with a 16-year-old child.

There can likewise be little doubt that charging decisions

for those who have sexual intercourse with a 14- or 15-year-

old child include crimes that are exempt from reporting

(third-degree rape) and those that are not exempt (second-

degree sexual abuse). It appears, then, that the potential

availability of the exemption is the same for those individ-

uals similarly situated to defendant. Defendant is required

to show that the district attorney’s decision to charge him

under ORS 163.425 did, in fact, deny him the equal privi-

lege of the exemption made available to another similarly

situated person. Clark, 291 Or at 243. He has not made that

particularized showing here.

To make a showing under Article I, section 20,

defendant must show that, when the district attorney made

the charging decision that removed the potential for an

exemption, he or she “either acted for a discriminatory or

792 State v. Goacher

illegitimate motive or had no ‘defensible explanation’ for his

or her action.” Savastano, 354 Or at 83. Defendant has not

done that. Therefore, we reject his claim as an individual

under Article I, section 20.

Defendant has not established that the imposition

of the sex offender reporting requirement as part of his sen-

tence violates Article I, section 20. The trial court did not

err in imposing the requirement.

Affirmed.