State v. Carlisle

137

Argued and submitted May 6, 2021, decision of Court of Appeals and judgment

of circuit court affirmed August 4, 2022

STATE OF OREGON,

Respondent on Review,

v.

ZACHARY DEAN CARLISLE,

Petitioner on Review.

(CC C18CR07005) (CA A169564) (SC S067880)

515 P3d 867

In defendant’s trial for third-degree sexual assault, ORS 163.415, defendant

requested a jury instruction that, in order to convict him of third-degree sex-

ual abuse, the state was required to prove that defendant knew that the victim

did not consent to sexual contact. The trial court instead granted defendant’s

alternative request to instruct the jury that the state was required to prove that

defendant was criminally negligent as to whether the victim did not consent. The

jury found defendant guilty, and the Court of Appeals affirmed. Held: The legisla-

ture did not intend the offense in ORS 163.415 to require proof that the defendant

knew that the victim did not consent to the sexual contact.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Stacy M. Du Clos, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for petitioner on review. Also on the briefs was

Ernest G. Lannet, Chief Defender.

Michael A. Casper, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, Justices, and Nakamoto, Senior Judge,

Justice pro tempore.**

______________

* On appeal from Multnomah County Circuit Court, Eric L. Dahlin, Judge.

304 Or App 872, 466 P3d 1069 (2020).

** DeHoog, J., did not participate in the consideration or decision of this case.

138 State v. Carlisle

FLYNN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Flynn, J., authored the lead opinion, in which Balmer

and Nelson, JJ., joined.

Garrett, J., concurred and filed an opinion, in which

Balmer, J., joined.

Walters, C. J., dissented and filed an opinion, in which

Duncan, J., and Nakamoto, S. J., joined.

Duncan, J., dissented and filed an opinion, in which

Walters, C. J., and Nakamoto, S. J., joined.

Cite as 370 Or 137 (2022) 139

FLYNN, J.

Defendant challenges his conviction for the misde-

meanor offense of third-degree sexual abuse, which required

the state to prove that he “subject[ed] another person to sex-

ual contact” and that “[t]he victim d[id] not consent to the

sexual contact.” ORS 163.415(1)(a)(A). The question before

us is which culpable mental state applies to the “victim does

not consent” element of the offense. The trial court instructed

the jury that the state needed to prove that defendant “know-

ingly” subjected the victim to sexual contact and that defen-

dant was “criminally negligent” with respect to the fact that

the victim did not consent to the sexual contact. According

to defendant, the trial court erred in refusing to instruct the

jury that both elements required proof of a “knowing” men-

tal state. We conclude, however, that the legislature did not

intend that a conviction under ORS 163.415 would require

proof that the defendant knew that the victim did not con-

sent to the sexual contact. Accordingly, we conclude that the

trial court did not err.

I. BACKGROUND

The charges against defendant arise out of an inci-

dent outside of a downtown Portland bar. The victim, AM,

arrived at the bar with her boyfriend and a few other friends,

and they encountered defendant standing just outside of the

door. AM’s group initially mistook defendant for a bouncer and

joked around with him for a few minutes after he informed

them of their mistake. Some time later, as AM’s group began

leaving the bar, AM stepped away from the crowd and was

looking at her phone when she felt someone pull down her

bra and grab her right breast. AM turned quickly to look

at the person and felt something scrape across her nipple.

She recognized the person who touched her as defendant, the

same man whom she and her friends had earlier mistaken

for a bouncer. According to AM, defendant looked at her and

“said something to the effect of ‘those eyes.’ ” AM walked

away from him without responding and told her boyfriend

about the incident. Defendant was eventually charged with

third-degree sexual abuse based on the incident.1

1

Defendant was also charged with, and convicted of, harassment based on

the same incident. But only his conviction for third degree sexual abuse is at

issue in this appeal.

140 State v. Carlisle

When the case went to trial, defendant argued to

the jury that AM was mistaken in her identification of defen-

dant as the man who made sexual contact with her breast.

But he also argued that the court should instruct the jury

that third-degree sexual abuse required the state to prove

beyond a reasonable doubt that defendant “knew that [AM]

did not consent.” In the alternative, defendant requested

an instruction that the element required a culpable mental

state of at least “criminal negligence.”

As set out above, the trial court disagreed with defen-

dant that the “does not consent” element requires a culpa-

ble mental state of “knowingly,” and it, instead, granted

defendant’s alternative request to instruct the jury that

the state was required to prove beyond a reasonable doubt

that defendant “was criminally negligent with respect to

whether [AM] did not consent” to the sexual contact. The

trial court instructed the jury that, in the context of the

sexual abuse charge in this case, “criminally negligent”

meant that defendant failed “to be aware of a substantial

and unjustifiable risk that [AM] did not consent” and that

the risk was “of such nature and degree that the failure to

be aware of it constitutes a gross deviation from the stan-

dard of care that a reasonable person would observe in a

situation.” See ORS 161.085(10) (defining the culpable men-

tal state of “criminal negligence”). After the jury returned a

verdict of guilty, defendant appealed and assigned error to

the court’s instruction regarding the culpable mental state.

The Court of Appeals affirmed the conviction in a

brief per curiam opinion. State v. Carlisle, 304 Or App 872,

466 P3d 1069 (2020). The court relied on its decision in

State v. Haltom, 298 Or App 533, 447 P3d 66 (2019)—a case

addressing the required mental state for a “does not con-

sent” element in a different sexual abuse statute. Carlisle,

304 Or App 872. But this court has since reversed the Court

of Appeals decision in Haltom, 366 Or 791, 472 P3d 246

(2020). And defendant argues that our conclusion in Haltom

requires us to reverse the Court of Appeals in this case as

well. We disagree. The statute at issue here and the stat-

ute at issue in Haltom describe distinct offenses that were

enacted by different legislatures and reflect different leg-

islative intent. The pertinent text, context, and legislative

Cite as 370 Or 137 (2022) 141

history of ORS 163.415 persuade us that the trial court cor-

rectly refused to instruct the jury that defendant was guilty

of third-degree sexual abuse only if he knew that AM did not

consent to the “sexual contact.”

II. DISCUSSION

The question of which culpable mental state the leg-

islature intended for the “does not consent” element of ORS

163.415(1)(a)(A) presents a question of statutory construc-

tion that we resolve by employing our well-established ana-

lytical framework, as set out in PGE v. Bureau of Labor and

Industries, 317 Or 606, 859 P2d 1143 (1993), and modified in

State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that

framework, we examine the text and context of the particu-

lar provision at issue and consider legislative history of the

provision “where that legislative history appears useful to

the court’s analysis,” all in an effort to determine the intent

of the legislature that enacted the provision. Gaines, 346 Or

at 171-72; see also ORS 174.020(1)(a) (“In the construction of

a statute, a court shall pursue the intention of the legisla-

ture if possible.”).

As pertinent to defendant’s conviction, ORS 163.415(1)

provides that “[a] person commits the crime of sexual abuse

in the third degree” when:

“(a) The person subjects another person to sexual con-

tact and:

“(A) The victim does not consent to the sexual contact[.]”

(Emphasis added.) The dispute in this case arises because

the statute does not specify a culpable mental state for any

element of the offense.2 That challenge is one that drafters

of the 1971 Oregon Criminal Code anticipated and partially

addressed with a collection of generally applicable culpabil-

ity provisions. See Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Final Draft

and Report §§ 7-11, 11 (July 1970) (explaining effort to “do

2

A different challenge arises when a statute prescribes some culpable men-

tal state for the defined offense but fails to specify the element or elements to

which it applies. For such statutes, the legislature has specified that “the pre-

scribed culpable mental state applies to each material element of the offense that

necessarily requires a culpable mental state.” ORS 161.115(1).

142 State v. Carlisle

away with the problem that now often arises when a stat-

ute defining a crime fails to prescribe a required culpable

state of mind”). Those general provisions supply “uniform”

answers to many of the culpable mental state issues that

arise for offenses within the Criminal Code.3 See State v.

Owen, 369 Or 288, 295, 505 P3d 953 (2022) (explaining that

“[t]he culpability statutes were intended to provide a uni-

form statutory scheme for determining which elements of an

offense require which culpable mental states”). The general

provisions narrow—but do not fully answer—the dispute in

this case.

A. The General Culpability Provisions

As pertinent to this case, one general culpability

provision specifies that “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 neces-

sarily requires a culpable mental state,” ORS 161.095(2),4

and another specifies that the “culpable mental state” for an

offense must be either “intentionally, knowingly, recklessly

or with criminal negligence.” ORS 161.085(6); see also ORS

161.115(2) (specifying that, “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”).

Those general provisions answer important ques-

tions that narrow the dispute regarding the culpable men-

tal state for the “does not consent” element in ORS 163.415:

They tell us that the legislature intended to require some

culpable mental state for the “does not consent” element,

even though the statute does not specify one, and they tell

us the range of mental states that could apply to that ele-

ment. The general provisions also supply important context

3

ORS 163.415 is part of the 1971 Criminal Code. See ORS 161.005 (listing

the provisions that “shall be known and may be cited as Oregon Criminal Code of

1971”).

4

There are limited exceptions to the requirement of ORS 161.095(2) that the

state must prove a culpable mental state for “each material element of the offense

that necessarily requires a culpable mental state”—the rule does not apply to

offenses that constitute a violation and for offenses defined by a statute outside of

the Oregon Criminal Code. ORS 161.095(2); ORS 161.105(1).

Cite as 370 Or 137 (2022) 143

for which mental state might apply to any particular ele-

ment, because they supply definitions for each of the four

culpable mental states. ORS 161.085(7) - (10). Those defini-

tions tell us that the legislature contemplated that each cul-

pable mental state would be used for certain categories of

material elements: “conduct,” “circumstance,” and “result.”

See Owen, 369 Or at 296 (explaining that, “by definition in

ORS 161.085, each type of mental state typically relates to

two of the three possible categories of material elements”).

For example, because only the mental states “knowingly”

and “intentionally” are defined with reference to “conduct”

elements,5 we know that the legislature generally expected

those mental states to apply to “conduct” elements. See

Haltom, 366 Or at 802 (describing a “default rule whereby,

in the absence of any specification of the required mental

state in a statute defining a criminal offense,” a minimum

culpable mental state of “knowingly” applies to “conduct”

elements).

The general provisions, however, do not answer

the ultimate question presented by this case, which—as

framed by the parties’ arguments—is limited to whether

5

As definitions typically do, the provisions tell us what the legislature

intended each term to mean “when used” in the code:

“(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. The risk must be of such

nature and degree that disregard thereof constitutes a gross deviation from

the standard of care that a reasonable person would observe in the situation.

“(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 unjustifi-

able 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 consti-

tutes a gross deviation from the standard of care that a reasonable person

would observe in the situation.”

ORS 161.085(7) - (10).

144 State v. Carlisle

the legislature intended to require a culpable mental state

of at least “knowingly,” or “with knowledge,” for the “does

not consent” element in ORS 163.415(1)(a)(A).6 The answer

to that question depends on the text, context, and legislative

history of ORS 163.415. See State v. Simonov, 358 Or 531,

546, 368 P3d 11 (2016) (emphasizing that “[t]he determina-

tion whether a particular element of an offense within the

Criminal Code requires a culpable mental state and, if so,

what mental state is required, ultimately is a matter of leg-

islative intent”).

Although our conclusion that the legislature gener-

ally expected those mental states to apply to “conduct” ele-

ments supplies important context, it points us to two equally

true propositions. First, if we were to determine that the

legislature understood “does not consent” to be part of the

“conduct” of the offense, then the context of the culpabil-

ity definitions would indicate that the legislature intended

the element to require a minimum culpable mental state of

“knowingly.” That proposition has previously allowed us to

reach a “tentative conclusion” that the legislature intended

to require a “knowing” mental state for a particular element.

See Haltom, 366 Or at 811-12 (reaching that conclusion).

It is equally true, however, that if we were to deter-

mine that the legislature did not intend to require a mini-

mum culpable mental state of knowingly for that particu-

lar element, then the context of the culpability definitions

would indicate that the legislature did not understand the

element to be part of the “conduct” of the offense. Thus, ask-

ing whether the legislature intended a particular element

to be “conduct” supplies one contextual path to determining

whether the legislature intended to require that a “know-

ing” mental state apply to the element, but it is not the only

path for making that determination, and it does not elimi-

nate the need to consider direct indications of which culpa-

ble mental state the legislature intended for the particular

6

As indicated above, defendant argued in the alternative in the trial court

for an instruction that the “does not consent” element requires a culpable mental

state of “criminal negligence.” There is no dispute in this court that, if the ele-

ment does not require a “knowingly” mental state, then the trial court correctly

instructed the jury that “does not consent” requires a culpable mental state of

“criminal negligence.”

Cite as 370 Or 137 (2022) 145

element. See id. (emphasizing that court should consider

direct indications of which culpable mental state the leg-

islature intended for a particular element of a particular

offense, regardless of whether the court is able to determine

that the legislature understood a particular element to be

“conduct”).

Nevertheless, we explained in Haltom that “it is

reasonable to initially focus on whether the legislature that

enacted the statute intended or understood the element at

issue as a circumstance or as part of the conduct that the

statute proscribes.” Id. at 802. That approach makes sense

because the general culpability provisions define the term

“conduct.” As we observed in Owen, the legislature has

defined “ ‘conduct’ ” to mean “ ‘an act or omission and its

accompanying mental state’ ”; an “ ‘[a]ct’ ” to mean “ ‘a bodily

movement’ ”; and “the verb ‘to act’ ” to mean “ ‘either to per-

form an act or to omit to perform an act.’ ” 369 Or at 297

(quoting ORS 161.085(1), (4), (5)). “Accordingly, conduct ele-

ments as a category are in part tied to bodily movements,

by definition.” Id. For example, the “subjects another person

to sexual contact” element of ORS 163.415 clearly describes

“conduct.” See ORS 163.305(5) (defining “sexual contact” as

“any touching of the sexual or other intimate parts of a per-

son or causing such person to touch the sexual or other inti-

mate parts of the actor for the purpose of arousing or grati-

fying the sexual desire of either party”). In addition, because

the definition of “knowingly” refers to “ ‘awareness that the

conduct of the person is of a nature so described,’ ” we under-

stand the legislature to have intended that “conduct” could

include some elements that describe “the nature, that is, the

essential character, of the prohibited act.” Simonov, 358 Or

at 540-41 (quoting ORS 161.085(8)). Given the legislature’s

guidance regarding the meaning of “conduct” elements, ask-

ing whether the legislature understood a particular element

to be “conduct” often will provide the most direct path to

understanding whether the legislature intended to require

a “knowing” mental state for the element.

There are limits to that path, however, because there

are some elements for which the categories break down. The

legislature has provided no definition of “circumstance” and

no line for determining in close cases whether an element

146 State v. Carlisle

is “conduct” or “circumstance.” And we reject the contention

that Simonov and Haltom filled the gap that the drafters left

open with a categorical “rule” that we must understand an

element to be “conduct”—regardless of whether the legisla-

ture understood it to be “conduct”—“if it changes an act that

is lawful into one that is unlawful.” See 370 Or at 182-83

(Walters, C. J., dissenting). To the contrary, the analysis in

both cases focused “on whether the legislature that enacted

the statute intended or understood the element at issue”

to be “conduct.” Haltom, 366 Or at 802; see id. at 799-800

(describing Simonov as seeking to determine whether “the

legislature had understood” the element at issue to be part

of the “conduct”). Moreover, Simonov specifically cautioned

against the kind of reasoning that would classify an element

as “conduct” based on whether the element “is required to

create criminal liability.” See 358 Or at 544 (cautioning that,

if it were correct that “every element that is required to cre-

ate criminal liability is part of the essential character of the

defendant’s act or omission * * *, the meanings of conduct

and circumstance would confusingly overlap”).7

What we actually proposed in Simonov is that cer-

tain “guidelines are useful” to our “holistic” statutory con-

struction inquiry and that one guideline is that, “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.” Id. at 546.

But that guideline does not mean that we have been given a

test that would allow us in every case to determine whether

the legislature understood a particular element to be “con-

duct” or “circumstance.” Indeed, as we cautioned in Simonov,

the line between the two categories—though “principled”—

is “sometimes difficult to discern.” Id. at 544.

7

We recognize that the Chief Justice’s dissent would draw a distinction

between an element that is required to create criminal liability and an element

that is required to make otherwise legal conduct illegal. 370 Or at 182 (Walters,

C. J., dissenting). But we do not. Indeed, the only indication of what the 1971

Legislative Assembly may have understood “circumstance” to mean when used

with reference to an element of an offense suggests that the legislature under-

stood as “circumstance” some elements that make otherwise legal conduct illegal.

See Commentary §§ 7-11 at 10 (referring to “the existence of specified circum-

stances (e.g., that property is stolen, that one has no right to enter a building,

etc.)”).

Cite as 370 Or 137 (2022) 147

B. Where the “Conduct” Inquiry Breaks Down

The drafters of the 1971 code were aware that some

elements cannot readily be categorized as either “conduct” or

“circumstance,” and they intentionally did not supply a rule

for distinguishing between the two. As we have previously

explained, the process of creating the comprehensive revised

code began in 1967 when the Legislative Assembly created

the Oregon Criminal Law Revision Commission. Gaines, 346

Or at 178. The commission divided the task of drafting the

revised code among three subcommittees, which submitted

their drafts, along with commentary, to the commission as a

whole. Id. The commission then produced and submitted to

the legislature the Final Draft and Report of the Proposed

Oregon Criminal Code, which included the drafters’ commen-

tary on each section of the code. Id.; Commentary to Criminal

Law Revision Commission Proposed Oregon Criminal Code,

Final Draft and Report (July 1970).8 All of the general cul-

pability provisions described above were a part of Article 2,

“General Principles of Criminal Liability,” which was

assigned for drafting to the commission’s subcommittee 1. Or

Laws 1971, ch 743, §§ 7-10; Minutes, Criminal Law Revision

Commission, Subcommittee No. 1, Dec 18, 1968, 1.

The first draft of culpability provisions that the

subcommittee considered spurred a great deal of debate

about what constitutes an “attendant circumstance.” Tape

Recording, Criminal Law Revision Commission, Sub-

committee No. 1, Dec 18, 1968, Tape 29, Side 1. As we

explained in Simonov, during discussion of that draft, mem-

bers of the subcommittee “were divided about the mean-

ings of conduct and circumstance” and disagreed about the

“meaning of ‘attendant circumstance’ in a variety of hypo-

theticals” for which an element could not readily be catego-

rized as “conduct” or “circumstance.” Simonov, 358 Or at 544

(citing Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 1).9

8

Given the history of the Proposed Oregon Criminal Code, which the legis-

lature approved, “this court generally treats the Commission’s records of its pro-

ceedings and its commentary on the draft code as indicative of the legislature’s

intent.” Haltom, 366 Or at 809.

9

As the minutes of the subcommittee meeting summarize the debate,

members of the subcommittee engaged in “a lengthy discussion concerning the

148 State v. Carlisle

The chair of the subcommittee expressed concern

that the draft was “not drawing * * * a sufficiently clear dis-

tinction between conduct and attendant circumstances.”

Tape Recording, Criminal Law Revision Commission, Sub-

committee No. 1, Dec 18, 1968, Tape 29, Side 1 (statement

of Sen John D. Burns, subcommittee chair). But the pri-

mary author of the draft culpability provisions, Professor

Courtney Arthur, indicated that he did not intend to add a

definition of “attendant circumstance,” and two other mem-

bers interjected, “I don’t see how you could [settle on a defi-

nition].” Id. (statements of Courtney Arthur and others).

That lack of clarity followed the draft through its

consideration and adoption by the 1971 legislature. The final

version of the 1971 code did not add any provision to correct

what Senator Burns had described as the code’s failure to

draw a “sufficiently clear distinction between conduct and

attendant circumstances.” See id. (statement of Sen John D.

Burns). In fact, nothing in the commentary suggested to the

legislature that there might be a need to clearly distinguish

between the two. Given the drafters’ decision to leave “atten-

dant circumstance” undefined in the code—in part based on

concern that that term might be impossible to define—we

are persuaded that the legislature did not intend that all

questions regarding which culpable mental state the legis-

lature intended for a particular element would be resolved

by the path of determining whether the element is more like

“conduct” or more like a “circumstance.”

To the extent that defendant and the Chief Justice’s

dissent understand Haltom or Simonov as setting us down

a path of statutory construction that requires courts always

to resolve whether an element should be considered conduct

or circumstance as a means to determining which culpa-

ble mental state the legislature intended, we reject that

understanding. See 370 Or at 178 (Walters, C. J., dissent-

ing) (describing proposed analytical framework). Rather,

meaning of the term ‘attendant circumstance,’ ” in which the term “was applied

to hypothetical situations involving statutory rape, burglary and robbery[,] but

members were unable to agree precisely on what the term was intended to cover

or to articulate a clear-cut distinction between attendant circumstance and

conduct.” Minutes, Criminal Law Revision Commission, Subcommittee No. 1,

Dec 18, 1968, 6.

Cite as 370 Or 137 (2022) 149

Haltom and Simonov should be understood as illustrat-

ing specific applications of our usual framework for con-

struing statutes. Simonov emphasizes that “[t]he statu-

tory interpretation inquiry is holistic.” 358 Or at 546. And

Haltom does not depart from the holistic interpretation

demonstrated in Simonov. Haltom, 366 Or at 797-801. We

reiterate our observation in Haltom that “it is reasonable

to initially focus on whether the legislature that enacted

the statute intended or understood the element at issue

as a circumstance or as part of the conduct that the stat-

ute proscribes.” Id. at 802. However, if it appears from our

examination of a statute’s text, context, and legislative his-

tory that the legislature had no shared understanding of

whether a particular element is “conduct” or an attendant

“circumstance,” then it makes little sense to impose our

own answer to that question as a means to understanding

which culpable mental state the legislature intended for the

element.

C. Indications of Legislative Intent with Respect to ORS

163.415

The challenge of determining which culpable men-

tal state the legislature intended to require for the “does not

consent” element in ORS 163.415 illustrates the limitations

of focusing primarily on whether the legislature under-

stood the element to be “conduct.” We have explained above

that the drafters of the 1971 Criminal Code were unable

to agree on the difference between “conduct” and “circum-

stance” in close cases and that the drafters intentionally

did not resolve that uncertainty. 370 Or at 147-48 (Flynn,

J., lead opinion). And among the elements for which they

expressed the greatest uncertainty were those that combine

with sexual activity to make that activity illegal. A hypo-

thetical offered by Professor Arthur involved the offense

of statutory rape. He indicated that the age of the “young

lady” would be an “attendant circumstance,” and another

committee member insisted that age was only an “existing

fact.” Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 1, Dec 18, 1968, Tape 29, Side 1. Another

member observed that “acquiescence” to a sexual act would

be “the attendant circumstance, or lack thereof.” Id. When

the subcommittee’s discussion later turned to the example

150 State v. Carlisle

of “forcible rape,” the committee members again expressed

conflicting understandings about the role of “resistance or

lack of resistance, consent or lack of consent.” One member

proposed that those factors would be an “attendant circum-

stance” and that “[t]he conduct is the act of intercourse,

which is the same basically regardless of whether one is

married [or] whether there’s consent.” But another insisted

that for forcible rape, “force is part of the conduct.” Id.

There was no greater clarity among the commis-

sion members assigned to the subcommittee that drafted

the sexual offenses, subcommittee 2. Nothing in the sub-

committee discussions of the sexual offenses or in the com-

mentary to the sexual offenses suggests that the drafters

of ORS 163.415 had any understanding of, or any interest

in, whether “does not consent” was part of the conduct or an

attendant circumstance. Indeed, the text for what became

ORS 163.415 remained unchanged from the first draft,

which was presented to and approved by the subcommit-

tee without discussion. Minutes, Criminal Law Revision

Commission, Subcommittee No. 2, May 3, 1969, 24-25. And

the subcommittee’s debates and discussion regarding the

other sexual offenses in that draft are devoid of any discus-

sion about whether the drafters of those provisions under-

stood “does not consent” to be a conduct element. See id. at

1-25.

We are persuaded that the 1971 legislature had no

greater clarity than did the drafters about whether the ele-

ment “does not consent” in ORS 163.415 should be understood

as “conduct.” The crime of sexual abuse was a newly codified

offense in Oregon in 1971. The commentary explained to

the legislature that “[u]nder the common law such conduct

would have constituted an assault.” Commentary §§ 115

& 116 at 122; see also id. §§ 92-94 at 93 (explaining that

“[o]ffensive but uninjurious sexual acts are covered by the

article on sex offenses (Article 13),” rather than by the

“assault” offenses). As originally adopted,10 the statute

provided:

10

Any examination of the text and structure of ORS 163.415(1) must focus

on the statute as adopted in 1971, because, as indicated above, it was the 1971

legislature that adopted the “does not consent” element on which defendant’s con-

viction under ORS 163.415 was based. See State v. Swanson, 351 Or 286, 290,

Cite as 370 Or 137 (2022) 151

“(1) A person commits the crime of sexual abuse in the

second degree if he subjects another person to sexual con-

tact; and

“(a) The victim does not consent to the sexual contact; or

“(b) The victim is incapable of consent by reason of

being mentally defective, mentally incapacitated or phys-

ically helpless.

“(2) In any prosecution under subsection (1) of this sec-

tion it is an affirmative defense for the defendant to prove

that:

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

pacity to consent by reason of being under 18 years of age;

and

“(b) The victim was more than 14 years of age; and

“(c) The defendant was less than four years older than

the victim.

“(3) Sexual abuse in the second degree is a Class A

misdemeanor.”11

Or Laws 1971, ch 743, § 115 (emphasis added).

We reject the suggestion of defendant and of the

dissents that the elements of ORS 163.415(1) are so simi-

lar to the elements of the 1983 statute that we construed

in Haltom that we must conclude that the 1971 legislature

also understood the victim’s nonconsent to be part of the

proscribed conduct, for which a “knowing” mental state

was required. 370 Or at 183-84 (Walters, C. J., dissenting);

370 Or at 194 n 3 (Duncan, J., dissenting). The 1971 leg-

islature prohibited different conduct and used different

266 P3d 45 (2011) (explaining that the proper inquiry for statutory construction

focuses on “the intent of the legislature that enacted the statute,” although “we

also consider any later amendments or statutory changes that were intended by

the legislature to modify or otherwise alter the meaning of the original terms of

the statute”).

11

The 1991 legislature subsequently changed the degree of the offense from

second to third when it added a new form of “first degree” sexual abuse. Or Laws

1991, ch 830, §§ 1-3. And the 1995 legislature moved the act of “sexual contact”

with a person who is incapable of consenting based on mental or physical inca-

pacity, originally set out in paragraph (1)(b), to the first-degree abuse statute. Or

Laws 1995, ch 657, §§ 11-12.

152 State v. Carlisle

text and structure to describe the role of “does not con-

sent” in ORS 163.415 than the 1983 legislature did when it

amended ORS 163.425. Moreover, our conclusion in Haltom

was informed by significant legislative history for the 1983

statute—specifically, testimony from “[t]he most conspicu-

ous proponent” of the amendment, who repeatedly assured

legislators that the state would be required to prove that

the defendant “knew” that the victim did not consent. 366

Or at 819-22 (quoting statements of Peter Sandrock in Tape

Recording, Senate Committee on Judiciary, SB 713, Apr 7,

1983, Tape 85, Side A; Tape Recording, Senate Committee

on Judiciary, SB 483, Apr 13, 1983, Tape 91, Side B; Tape

Recording, House Committee on Judiciary, June 30, 1983,

Tape 485, Side A). The 1971 legislature could not have

been influenced by any testimony presented to legisla-

tors in 1983. And the 1971 legislative history points to a

significantly different answer regarding the question of

whether the 1971 legislature understood the “does not

consent” element in ORS 163.415 to be conduct, as well as

regarding the broader question of what culpable mental

state the 1971 legislature intended with respect to that

element.

The text and commentary to other provisions in the

sexual offenses section included references to the “conduct”

that—at least when the element of nonconsent is based on a

victim’s age—appear to describe the “conduct” as the sexual

act, not the nonconsent that must attend the act in order to

prove a crime. See Or Laws 1971, ch 743, § 106 (specifying

that, for all of the sexual offenses in which “the criminality

of conduct depends on” the victim being under 16, it is “no

defense” that the defendant “reasonably believed the child”

to be older); Commentary § 105 at 106 (explaining that, for

age-based sexual offenses, “age sets the basic dividing line

between criminal and noncriminal conduct”); id. § 105 at 107

(using “conduct” to refer to the act engaged in by a victim who

lacked the capacity to consent to the “sexual conduct”). That

description of the “conduct” aligns with our earlier expla-

nation that “conduct” can include an act that is criminal or

not criminal depending upon the attendant circumstances.

See 370 Or at 146 & n 7 (Flynn, J., lead opinion) (quoting

Simonov, 358 Or at 544).

Cite as 370 Or 137 (2022) 153

The text that the 1971 legislature adopted suggests

the same distinction between the bodily act of “sexual con-

tact” and the various forms of nonconsent that supply a sep-

arate element. As we have previously explained, “the phrase

‘does not consent’ in paragraph [(1)](a) of the 1971 [version

of the] statute included ‘the victim’s * * * incapacity to con-

sent by reason of being under 18 years of age,’ ” in addition

to factual lack of consent.12 State v. Ofodrinwa, 353 Or 507,

515, 300 P3d 154 (2013) (quoting Or Laws 1971, ch 743,

§ 115 (omission in Ofodrinwa)). And in paragraph (1)(b), the

legislature provided that lack of consent could be based on

the victim’s physical or mental incapacity to give consent.

Or Laws 1971, ch 743, § 115(1)(b). Thus, the 1971 legisla-

ture described a particular act—“subjects another person

to sexual contact”—and then, in separate provisions, listed

alternative ways to prove a second element—that the victim

did not or could not consent. Or Laws 1971, ch 743, § 115.

That grammatical structure, which is maintained in the

current statute, see ORS 163.415, is some indication that the

legislature understood the second element to be a “circum-

stance” that attends the proscribed conduct, rather than a

part of the conduct, see Simonov, 358 Or at 547 (pointing

to the grammatical structure employed in ORS 163.415 as

more likely to convey a legislative understanding that the

separate provisions “described the circumstance elements

attendant to those acts”).

We do not point to the occasional references in the

commentary suggesting that the sexual act is the “conduct,”

or to the grammatical structure of ORS 163.415, as estab-

lishing that the legislature had a clear understanding that

factual lack of consent was a “circumstance” rather than

“conduct.” Indeed, we acknowledge that other commentary

references to “conduct” could support the opposite conclu-

sion. And we acknowledge that the text of ORS 163.415 uses

a verb—“subjects”—that we described in Haltom as “carr[y-

ing] at least an implication of unwillingness on the part of

the other person” and as supporting a tentative conclusion

that the 1983 legislature understood “does not consent” to

12

The 1979 legislature added to paragraph (1)(b) an express reference to a

victim “incapable of consent by being under 18 years of age.” Or Laws 1979,

ch 489, § 1 (boldface in original).

154 State v. Carlisle

be part of the conduct proscribed by ORS 163.425(1)(a). 366

Or at 804-05. But those conflicting inferences illustrate why

we are persuaded that the 1971 legislature had no greater

understanding than did the drafters as to whether factual

“does not consent” was a “circumstance” or “conduct” ele-

ment in ORS 163.415.

And we are not persuaded by the dissents’ insis-

tence that we can eliminate that uncertainty surrounding

the 1971 statute by invoking our conclusion in Haltom that

the 1983 legislature understood “does not consent” to change

“the essential nature” of the act of “sexual intercourse”—

the primary act prohibited by ORS 163.425. See 370 Or at 146

(Walters, C. J., dissenting) (quoting and discussing Haltom,

366 Or at 804); see also 370 Or at 194 n 3 (Duncan, J., dis-

senting) (also discussing Haltom). The Chief Justice’s dis-

sent seemingly understands that phrase to mean “essen-

tial to making the act unlawful,” which perhaps explains

that dissent’s insistence that “does not consent” must be

a “conduct” element in ORS 163.415 because the act—

“sexual contact”—is unlawful only when the victim does

not consent. 370 Or at 184 (Walters, C. J., dissenting). But

a closer examination of Haltom reveals that we used the

concept of the “essential nature” of an act to refer more

narrowly to qualities that fundamentally define the act

itself.

In Haltom, this court accepted without discussion

the defendant’s unchallenged premise that consent is a fun-

damental quality of the act of “sexual intercourse,”13 as that

act is “ordinarily” understood. See 366 Or at 804 (accepting

the defendant’s characterization of “sexual intercourse” as

an act that “is ordinarily considered natural and mutually

desirable”); see also ORS 163.305 (specifying since 1971 that

the term “[s]exual intercourse,” as used in the sexual offense

statutes, “has its ordinary meaning” (emphasis added)). Our

acceptance of that premise explains why Haltom describes

the defendant’s argument as “reflect[ing] the reasoning

13

In briefing to this court, the defendant in Haltom had characterized lack of

consent as an element that “transforms one of the most natural and necessarily-

enduring of all human interpersonal acts into a violent crime,” and the state had

agreed that “lack of consent is what transforms otherwise natural and lawful

conduct into criminal behavior.”

Cite as 370 Or 137 (2022) 155

that led this court to declare, in Simonov, that it ‘border[ed]

on the axiomatic’ that the lack of consent” was part of the

conduct that the crime of Unlawful Use of a Vehicle pro-

scribed. Haltom, 366 Or at 804 (quoting Simonov, 358 Or at

548 (second brackets in Haltom)). In Simonov, the prohibited

conduct was so fundamentally different from consensual

use of a vehicle that the conduct historically had its own

name—“joyriding.” See 358 Or at 548 (explaining that “[t]he

nature of joyriding is the temporary use of a vehicle without

permission”).

Whatever the merit of our acceptance in Haltom of

the premise that “sexual intercourse” is fundamentally a

consensual act, the legislative history of ORS 163.415 per-

suades us that the 1971 legislature did not understand “sex-

ual contact” to be a fundamentally consensual act. Instead,

the code defined “sexual contact” in a way that described

acts that might or might not be consensual, or mutually

desirable. See Or Laws 1971, ch 743, § 104(7) (defining “sex-

ual contact” to mean “any touching of the sexual or other

intimate parts of a person not married to the actor or caus-

ing such person to touch the sexual or other intimate parts

of the actor for the purpose of arousing or gratifying the

sexual desire of either party”). The commentary, similarly,

described “sexual contact” as an act that was not fundamen-

tally either consensual or nonconsensual. See Commentary

§§ 115 & 116 at 122 (explaining that “sexual contact” could

“be with either the victim or the actor but it need not be

between them” and that it need only be for “the purpose

of arousing or gratifying the sexual desire of either party”

(internal quotation marks omitted)). And, as described above,

the commentary repeatedly refers to the “conduct” for a sex-

ual offense in a way that likely suggested to the 1971 leg-

islature that the prohibited “conduct” was the sexual act,

which could be either criminal or not depending on context.

See 370 Or at 152 (Flynn, J., lead opinion). In short, we are

not persuaded that the 1971 legislature considered consent

to be part of the essential nature of “sexual contact,” and we

thus are not persuaded that the legislature understood the

lack of consent to be part of the “conduct” that ORS 163.415

describes. We decline to force a categorization on the “does

not consent” element in ORS 163.415 when the text, context,

156 State v. Carlisle

and legislative history persuade us that the legislature had

no understanding of whether the element was “conduct” or

“circumstance.” Thus, because the categorization breaks

down for the “does not consent” element of ORS 163.415,

asking whether the legislature understood the element to be

“conduct” or “circumstance” is not a helpful path to under-

standing which culpable mental state the legislature intended

for that element.

Accordingly, we draw our understanding of which

culpable mental state the 1971 legislature intended for the

“does not consent” element in ORS 163.415 from our exam-

ination of other indications of legislative intent that more

directly answer that question, and those indications of leg-

islative intent persuade us that the 1971 legislature did not

intend to require proof that a defendant acted “knowingly”

with respect to the fact that the victim did “not consent” to the

sexual contact. Our inquiry is aided by extensive statutory

context, which was not available for the 1983 amendment

that we considered in Haltom, because the offense at issue

here was enacted as part of an article of the 1971 Criminal

Code in which the drafters comprehensively addressed all

of the “Sexual Offenses.” Or Laws 1971, ch 743, §§ 104-120

(Article 13).

An important part of that context begins with the

code’s identification of alternative ways to prove “lack of

consent” to a sexual offense. The commentary explains that

“[l]ack of consent is the common denominator for all” of the

sexual offenses and that there were generally three ways for

a sexual act to be committed on a person without consent:

“(1) when the victim is forcibly compelled to submit; (2) when

the victim is considered to be incapable of consenting as a

matter of law; and (3) when the victim does not acquiesce

in the actor’s conduct.” Commentary § 105 at 106. A per-

son could be “considered incapable of consenting to a sexual

act” based on age, mental incapacity, or physical helpless-

ness. Or Laws 1971, ch 743, § 105. And we have previously

reasoned that the 1971 code treated victims who lacked the

capacity to consent as functionally equivalent to victims

who factually did not consent. See Ofodrinwa, 353 Or at

514 (explaining that “[t]he 1971 Criminal Code retained the

understanding of consent that had preceded it”—that, “[f]or

Cite as 370 Or 137 (2022) 157

the purposes of sex crimes, a victim who lacked the capacity

to consent stood in the same position as a victim who did

not actually consent”). Indeed, as explained above, the 1971

legislature understood a victim’s factual lack of consent to

be so equivalent to age-based lack of consent that the two

forms of lack of consent were covered by the same “victim

does not consent” paragraph of the offense that is codified at

ORS 163.415. 370 Or at 153 (Flynn, J., lead opinion) (citing

Ofodrinwa, 353 Or at 515). In other words, the 1971 legis-

lature intended that factual lack of consent and age-based

lack of consent, as well as lack of consent based on mental

or physical incapacity, would be alternative ways of proving

nonconsent for purposes of a single offense: sexual abuse in

the second degree, punishable as a Class A misdemeanor.

Or Laws 1971, ch 743, § 115(1), (3).

Given that legislative intent, statutes in which the

1971 legislature addressed the defendant’s culpable men-

tal state with respect to some of the ways of proving that

a victim did not consent can inform our understanding of

how the 1971 legislature viewed the culpable mental state

that would be required for the “does not consent” element in

the offense that became ORS 163.415. The most pertinent

of those contextual statutes is ORS 163.325, which the leg-

islature also adopted in 1971 and which addressed proof of

a culpable mental state when a victim’s lack of consent to

sexual offense was based on age or mental or physical inca-

pacity.14 ORS 163.325 specified:

“(1) In any prosecution under ORS 163.355 to 163.445

in which the criminality of conduct depends on a child’s

being under the age of 16, it is no defense that the defen-

dant did not know the child’s age or that the defendant rea-

sonably believed the child to be older than the age of 16.

“(2) When criminality depends on the child’s being

under a specified age other than 16, it is an affirmative

defense for the defendant to prove that the defendant rea-

sonably believed the child to be above the specified age at

the time of the alleged offense.

14

ORS 163.325 remained in the same form from 1971 through the time of

the offense for which defendant was prosecuted. See Or Laws 2021, ch 82, § 3; Or

Laws 2021, ch 410, § 1. Thus, we cite the original version of the statute without

reference to a particular year.

158 State v. Carlisle

“(3) In any prosecution * * * 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.”

In other words, the 1971 legislature would have

understood that, when the offense that it classified as sex-

ual abuse in the second degree was to be proven by evidence

that a victim was under 16, the state would not be required

to prove that the defendant knew of that basis for noncon-

sent, because even a defendant’s reasonable belief that the

child is older than 16 was “no defense.” See ORS 163.325(1).

The legislature would have understood that, for cases in

which the offense was to be proven by evidence that a victim

was between 16 and 18, the state would not be required to

prove that the defendant knew of that basis for nonconsent,

because even a defendant who did not know of the child’s age

was assigned the burden to affirmatively prove “that the

defendant reasonably believed” the child to be older than 18.

See ORS 163.325(2). And the legislature would have under-

stood that, for cases in which the offense was to be proven

by evidence that the victim was mentally or physically inca-

pacitated, the state would not be required to prove that the

defendant knew of that basis for nonconsent, because lack

of knowledge “is an affirmative defense for the defendant to

prove.” See ORS 163.325(3).

We do not suggest that—in 1971—ORS 163.325

addressed whether the state would be required to prove that

the defendant knew of the basis for nonconsent when the

offense defined in ORS 163.415 was to be proven by evidence

that a victim factually did not consent; it did not.15 Or Laws

15

The 2021 legislature amended ORS 163.325 in a way that makes a similar

affirmative defense available when lack of consent is based on factual lack of

consent. See Or Laws 2021, ch 410, § 1. The amendment added:

“(4) In any prosecution under ORS 163.415 or 163.425 in which the vic-

tim’s lack of consent is not based on the incapacity of the victim to consent

because of the victim’s age, it is an affirmative defense for the defendant

to prove that, at the time of the alleged offense, the defendant reasonably

believed that the victim consented to the sexual contact, sexual intercourse

or oral or anal intercourse.”

Cite as 370 Or 137 (2022) 159

1971, ch 743, § 106. Nor do we suggest that ORS 163.325

establishes a uniform culpable mental state that applies to

the forms of nonconsent that the statute addresses. But ORS

163.325 supplies a clear indication that the 1971 legislature

did not intend to require proof that the defendant knew of

the basis for nonconsent when the offense set out in ORS

163.415 was proven by evidence that the victim was younger

than 18 or that the victim was mentally or physically inca-

pacitated. That relevant context informs our assessment of

defendant’s claim—and the dissents’ claims—that the 1971

legislature did intend to require proof that the defendant

knew of the basis for nonconsent when the offense set out in

ORS 163.415 was to be proven by the alternative of evidence

that the victim factually did not consent.

ORS 163.325 informs our assessment of that claim

because it points to competing inferences about what the

legislature intended for ORS 163.415, and one of those infer-

ences is far more plausible. One possibility, which defen-

dant and the dissents embrace, is that the 1971 legislature

intended to require a knowing mental state for only one

of the alternative ways of proving nonconsent under ORS

163.415—and simply failed to mention that intended dis-

parity in the text of the statute. Such an omission would

have been a significant oversight given that the 1971 leg-

islature considered victims who lacked the capacity to con-

sent, and the defendants who subjected them to sexual

contact, to be functionally equivalent to victims who fac-

tually did not consent, and the defendants who subjected

them to sexual contact. See 370 Or at 156-57 (Flynn, J.,

lead opinion) (discussing indications that the legislature

understood those functional equivalencies). And such an

omission would be particularly significant given that the

1971 legislature covered both age-based and fact-based lack

of consent under the same paragraph—“(a) The victim does

not consent to the sexual contact.” Or Laws 1971, ch 743,

§ 115; see Ofodrinwa, 353 Or at 515 (explaining that “ ‘does

not consent’ in paragraph [(1)](a) of the 1971 [version of the]

statute included ‘the victim’s * * * incapacity to consent by

Id. The effect of that amendment on prosecutions under ORS 163.415 is not at

issue in the case before us. And our references to ORS 163.325 are to the statute

as enacted.

160 State v. Carlisle

reason of being under 18 years of age’ ” as well as factual

lack of consent (quoting Or Laws 1971, ch 743, § 115). The

care with which the 1971 code was drafted persuades us

that, if the 1971 legislature had intended to require proof

that the defendant knew of the nonconsent for only one of

the alternative ways of proving the offense set out in ORS

163.415, it would have specified that intent in the text of the

statute.

The more plausible way to understand why the

1971 legislature would have failed to specify, in the text of

the statute, that the offense of second degree sexual abuse

would require proof of a knowing mental state for just one

of the alternative ways of proving the nonconsent element of

that offense is that the legislature did not intend to require

proof of a knowing mental state for just one of the alterna-

tive ways of proving the nonconsent element of the offense

set out in ORS 163.415. That conclusion does not mean that

the legislature intended to create a strict liability crime. As

we emphasized in Owen, the Criminal Code requires some

culpable mental state for each material element that “ ‘nec-

essarily requires a culpable mental state,’ ” and the mini-

mum culpable mental state under the Oregon Criminal

Code is “criminally negligent.”16 369 Or at 296 (quoting ORS

161.095(2)). And even the “criminally negligent” mental

state requires proof that the defendant “fail[ed] to be aware

of a substantial and unjustifiable risk” that the victim did

not consent and that the risk was “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.” ORS 161.085(10). But we are not

persuaded that the legislature intended to permit individu-

als to gratify their sexual desires by touching the “sexual or

other intimate parts” of nonconsenting strangers as long as

the toucher does not have knowledge that the stranger does

not consent. See Or Laws 1971, ch 743, § 104(7) (defining

“ ‘[s]exual contact’ ” in that way).

16

We explained in Owen that the legislature used the phrase “that neces-

sarily requires a culpable mental state” to clarify “that culpable mental states

do not apply to elements of an offense relating to when and where a crime could

be prosecuted, like the statute of limitations, jurisdiction, and venue * * *, but do

apply to elements that define whether a defendant has committed an offense.”

369 Or at 316-17 (internal quotation marks omitted).

Cite as 370 Or 137 (2022) 161

Defendant and the dissents, nevertheless, insist

that the legislature would have had no reason to articulate

an intent to require a knowing mental state for just one of

the alternative ways of proving the nonconsent element of

the offense set out in ORS 163.415 because—they propose—

the legislature adopted a “general rule” that required a

defendant to know that a victim did not consent. But the

“general rule” theory does not hold up to scrutiny. According

to defendant, the legislature was aware of and intended to

adopt a “general rule” regarding all of the sex offenses—

“that the state ordinarily must prove that the defendant

knew that the victim in fact did not consent.” The dissents’

proposal is similar. See 370 Or at 192-93 (Duncan, J.,

dissenting) (asserting and discussing a general rule “that

a defendant had to know the facts that caused his actions

to be criminal”); see also 370 Or at 185-87 (Walters, C. J.,

dissenting) (discussing the same “general rule”). Assuming

that “general rule,” defendant and the dissents reason that

the legislature intended that ORS 163.415 would require

actual knowledge that the victim did not consent whenever

that element was proven through the victim’s factual lack of

consent.

The first challenge to that proposal is that there is

no support for the existence of the “general rule.” Although

defendant cites Haltom as the supposed source of this “gen-

eral rule,” Haltom used the term in the context of describ-

ing one of the arguments that had been advanced by the

defendant in that case. 366 Or at 816-17. Moreover, Haltom

discussed the defendant’s “general rule” as a general rule

against strict liability offenses (meaning those requiring no

culpable mental state). See id. at 818 (explaining that the

“defendant’s claim that, historically, strict liability applied

only in sex crime cases in which the victim’s nonconsent

was legally implied based on age or incapacity” was poten-

tially undermined by a portion of the commentary that

could be read as suggesting that, historically, “no mental

state requirement attached to the element of nonconsent

in any of its forms” (emphasis in original)). A general rule

against offenses that require no culpable mental state is

irrelevant to the legislature’s intent with respect to ORS

163.415, which—as we have explained—requires proof of

162 State v. Carlisle

some culpable mental state when the victim’s lack of con-

sent takes the form of factual failure to consent. See 370 Or

at 160 (Flynn, J., lead opinion).

There also is no support in the 1971 Criminal Code

or its commentary to support defendant’s claim that the leg-

islature intended to adopt a “general rule” that the defen-

dant must know the facts that caused his actions to be crim-

inal. Both dissents identify a reference in the commentary

to a rule that “knowledge of the victim’s age is not an essen-

tial element of the crime of statutory rape and therefore jus-

tifiable ignorance of age is not a defense in a prosecution for”

statutory rape as “apparently an exception to the general

rule that guilt attaches only where the accused intended

to do the prohibited act.” 370 Or at 186 (Walters, C. J., dis-

senting) (quoting Commentary § 106 at 108); 370 Or at 192

(Duncan, J., dissenting) (quoting Commentary § 106 at 108).

But that reference to the accused having “intended to do

the prohibited act” likely would have been understood by

the legislature as a reference to the general rule requiring

“criminal intent”—meaning some culpable mental state—a

rule to which a strict liability crime like statutory rape was

an exception. See, e.g., State v. Ankeny, 185 Or 549, 563, 204

P2d 133 (1949) (explaining that, “[t]o constitute a crime

the act must, except as otherwise provided by statute, be

accompanied by a criminal intent on the part of accused,

or by such negligent and reckless conduct and indifference

to the consequences of conduct as is regarded by the law as

equivalent to a criminal intent” (internal quotation marks

omitted)). In any event, whatever the legislature understood

by that reference to an existing “general rule,” it is clear

that the legislature did not intend to adopt a “general rule”

requiring proof that a defendant must know the facts that

caused the defendant’s actions to be criminal. See Haltom,

366 Or at 798-99 (explaining the legislature’s general rules

regarding culpable mental states in a way that make clear

“intentionally” was not generally required for any type of

element).

Nor does it make sense to suggest that the legis-

lature adopted any “general rule” that would require a

defendant to know that the victim did not consent to sexual

Cite as 370 Or 137 (2022) 163

contact. Of the various sexual offense provisions enacted in

the original 1971 code, the offense set out in ORS 163.415

was the only sexual offense that could be proven by evidence

that the victim factually did not consent. See Or Laws 1971,

ch 743, §§ 109-120. Moreover, the commentary told the leg-

islature that the offense of sexual abuse had its origin in

common law “assault,” and it described common law assault

to the legislature in a way that would not have suggested a

general rule that the defendant always must know that the

victim factually did not consent. See 370 Or at 150 (Flynn, J.,

lead opinion) (quoting Commentary §§ 115 & 116 at 122);

Commentary §§ 92-94 at 94 (explaining that “consent” at

common law was only sometimes “a defense to a prosecu-

tion for assault”); see also Ibach v. Jackson, 148 Or 92, 103,

35 P2d 672 (1934) (reciting that, “if two men agree to fight

and one is injured, the law will not excuse on account of

the consent given to the assault” (internal quotation marks

omitted)).17

Thus, we are not persuaded that the legislature

intended to adopt a “general rule” that the defendant must

know “that the victim in fact did not consent” to the defen-

dant’s sexual conduct. In the absence of such a “general rule,”

which might have explained the failure of the 1971 code to

specify in the text of the offense set out at ORS 163.415 that

the state would be require to prove that the defendant knew

of the basis for nonconsent for one—and only one—of the

multiple, alternative ways to prove the element of noncon-

sent, the omission is most plausibly understood as deliber-

ate: The legislature did not specify that that the state would

be require to prove that the defendant knew of the basis for

17

Justice Duncan’s dissent asserts that “factual nonconsent has historically

been subject to a higher culpability requirement than legal consent.” 370 Or at

193 (Duncan, J., dissenting) (emphasis omitted). As explained above, however,

factual nonconsent to a sexual act, under the 1971 code, was a way of proving only

the element of nonconsent for the newly enacted sexual offense of second-degree

sexual abuse—and thus had no historical counterpoint. 370 Or at 163 (Flynn, J.,

lead opinion). To the extent that that dissent has in mind the historical form of

nonconsent that the code calls “forcible compulsion,” see Or Laws 1971, ch 743,

§ 104(3) (defining “forcible compulsion”); see also id. §§ 111, 114, 116 (includ-

ing as an element that the victim “is subjected to forcible compulsion” by the

defendant), we express no opinion regarding whether the legislature would have

understood that way of proving nonconsent to require a higher culpable mental

state.

164 State v. Carlisle

nonconsent for one—and only one—of the multiple, alterna-

tive ways to prove the element of nonconsent, because the

legislature did not intend to require that any of the alterna-

tive ways to prove the element of nonconsent for that statute

would require the state to prove that the defendant knew of

the basis for nonconsent.

Justice Duncan’s dissent suggests that our con-

struction of the statute creates an incongruity: Under the

1971 code, a defendant who was charged with second degree

sexual abuse based on evidence that the victim was men-

tally or physically incapable of consenting to the sexual con-

tact could have avoided conviction by proving that he did not

know of the incapacity, while a comparable defense would

have been unavailable to a defendant who was charged with

the same offense based on evidence that the victim factually

did not consent. 370 Or at 193 (Duncan, J., dissenting). But

there is no incongruity. Regardless of whether a victim has

a mental or physical incapacity to consent, if that victim fac-

tually does not consent, then it is no defense to a prosecution

under ORS 163.415 that the defendant did not know that

the victim did not consent. Although the 1971 legislature

made the same conduct a crime if the victim was mentally

or physically incapable of consenting, ORS 163.325 reflects

the legislature’s recognition that some victims who appear

to factually give consent are, nevertheless, incapable of giv-

ing that consent. There is nothing incongruous about the

legislature allowing defendants in those encounters to avoid

prosecution by proving that they actually did not know that

the victim who appeared to give consent was incapable of

doing so.

As a final argument, defendant urges us to infer

that the legislature must have intended to require that

defendants know that the victim does not consent, given

the classification of the offense defined in ORS 163.415 as

a Class A misdemeanor. We are not persuaded. Defendant

relies on Haltom and Simonov, in which we described the

legislature’s decision to punish those offenses as felonies—a

severe consequence—as some indication the legislature

would have intended to require a “knowing” mental state.

Haltom, 366 Or at 812; Simonov, 358 Or at 548. Defendant

Cite as 370 Or 137 (2022) 165

transforms that reasoning into a premise that any “serious

offense” classification suggests a legislative intent to require

a knowing mental state for all elements of the offense, and

defendant contends that the legislature’s classification of

ORS 163.415 as a “Class A misdemeanor” makes it a “seri-

ous offense.”

Although we do not question defendant’s assertion

that a Class A misdemeanor is a “serious offense,” there is

no basis for defendant’s assumption that the classification

suggests an intent by the 1971 legislative to require a know-

ing culpable mental state when the “does not consent” ele-

ment is proven by evidence that the victim factually did not

consent. As we have already explained, that was only one of

multiple, alternative ways to prove the element of noncon-

sent for the same offense. Or Laws 1971, ch 743, § 115. And

the legislature made all forms of the offense punishable as a

Class A misdemeanor, even though it clearly intended that

the other ways of proving nonconsent would not require proof

that the defendant knew of the basis for the nonconsent. See

370 Or at 158-59 (Flynn, J., lead opinion) (discussing signifi-

cance of ORS 163.325 with respect to culpable mental states

for the original version of ORS 163.415); see also id. at 158

n 15 (Flynn, J., lead opinion) (noting subsequent different

treatment of nonconsent based on mental or physical inca-

pacity). There is no reason to assume that the classification

as a Class A misdemeanor has a different significance for

convictions based on proof that the victim factually did not

consent.

III. CONCLUSION

As explained above, the crime now classified as sex-

ual abuse in the third degree, ORS 163.415, is the one sex-

ual offense from the original 1971 Criminal Code in which

the legislature criminalized sexual conduct when the vic-

tim factually “does not consent” to the conduct. 370 Or at

163 (Flynn, J., lead opinion). We conclude that a conviction

for the offense requires proof that a defendant acted “know-

ingly” with respect to the prohibited conduct—“sexual

contact”—but permits proof of a less culpable mental state

with respect to the fact that the victim “does not consent to

the sexual contact.”

166 State v. Carlisle

In reaching that conclusion, we have employed our

well-established methodology and considered all indications

of legislative intent from the text, context, and legislative

history of the statute. Relevant context includes the code’s

definitions of the culpable mental states, which indicate that

the legislature generally intended the minimum culpable

mental state for “conduct” elements to be “knowingly” and

for “circumstance” elements to be “criminally negligent.”

But that is not always a helpful path for determining which

culpable mental state the legislature intended.

Here, we know that the drafters had no shared

understanding about whether the victim’s lack of consent

to sexual contact was part of the proscribed “conduct,” as

opposed to an attendant “circumstance.” And nothing in the

statute that the legislature adopted or the commentary that

the legislature had before it suggests that the legislature

had any greater clarity than the drafters about the category

under which “does not consent” should be classified. Thus,

looking to the context provided by the culpability definitions

ultimately does not advance our understanding of which

culpable mental state the legislature intended for that ele-

ment. But our holistic examination of the text, context, and

legislative history of ORS 163.415 persuades us that the

legislature did not intend that offense to require proof that

the defendant knew that the victim did not consent to the

sexual contact. Accordingly, the trial court did not err when

it declined to instruct the jury that, to convict defendant

of third-degree sexual abuse under ORS 163.415(1)(a)(A), it

needed to find that defendant knew that the victim did not

consent to the sexual contact.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

Balmer and Nelson, JJ., join in this lead opinion.

GARRETT, J., concurring.

I agree with the court’s disposition of this case, but I

would approach the analysis somewhat differently. Like both

the lead opinion and the dissents, I would begin by asking

whether the legislature understood a victim’s lack of consent

to be part of the “conduct” regulated by ORS 163.415(1), the

Cite as 370 Or 137 (2022) 167

third-degree sexual abuse statute. Unlike the lead opinion,

which finds no answer to that question, and unlike the Chief

Justice’s dissent, which answers it “yes,” I would answer it

“no.” I acknowledge that that conclusion is in tension with

this court’s recent decision in State v. Haltom, 366 Or 791,

472 P3d 246 (2020). Although I joined that opinion, I have

come to doubt that its reasoning is entirely sound. I write

separately in part to explain why I believe some aspects of

Haltom’s analysis should be reconsidered.

Beginning with the methodological question on

which the lead opinion and the Chief Justice’s dissent part

company, I agree with the lead opinion that a strict, two-step

“default rule” construct is not absolutely required. Our opin-

ions in Haltom and State v. Simonov, 358 Or 531, 368 P3d

11 (2016), do indicate that, where a criminal statute does not

specify the mental state for an element, the interpretative

exercise should, first, ask how the legislature intended to

categorize the element (as conduct, circumstance, or result).

The answer to that question will lead to a tentative conclu-

sion about which mental state applies. The second interpre-

tative step is to consider any other evidence that would con-

firm or rebut that tentative conclusion. On the other hand,

it is not even clear that Simonov itself followed that two-step

process, as we observed in Haltom. 366 Or at 802 (noting

that Simonov’s analysis is “not entirely compatible” with a

rigid “default rule” approach). As for Haltom, we ultimately

said only that “we think that it is reasonable to initially

focus” on whether the legislature had an understanding as

to whether an element was conduct or circumstance. 366 Or

at 802. That wording leaves future courts with latitude to

approach the analysis differently.

Nevertheless, for all the reasons that this court

articulated in Simonov, see 358 Or at 537-40, the question

of how to categorize the element at issue is the right place

to begin, in light of the general culpability statutes. I do not

understand the lead opinion to say otherwise. Therefore,

in this case, I would begin by asking whether the enacting

legislature would have understood the “does not consent”

element in ORS 163.415(1)(a)(A) as a conduct element or,

instead, as a circumstance element. If we can answer that

168 State v. Carlisle

question, we know what mental state the legislature pre-

sumptively intended would apply.

Although the lead opinion ultimately concludes that

the answer is not clear, the opinion cites contextual and

historical evidence to suggest that, in the context of sexual

offenses, the 1971 legislature would have understood the

“conduct” to consist of the sexual acts described in the stat-

ute, with the “does not consent” element being an attendant

circumstance. See 370 Or at 149-50, 151-53 (Flynn, J., lead

opinion).

More fundamentally, that conclusion follows from

strong textual evidence, namely the statutory definitions

of the relevant terms. That is illustrated through several

steps. First, ORS 161.085(4) provides that, for purposes of

the Criminal Code, “ ‘[c]onduct’ means an act or omission

and its accompanying mental state.” No “omission” is at

issue here, so the key word is “act,” which also is a defined

term. Under subsection (1) of the same statute, “ ‘[a]ct’

means a bodily movement.” Thus, the applicable meaning

of “conduct” is “[a bodily movement] and its accompanying

mental state.” As we explained in Simonov, the accompany-

ing mental state for a conduct element must be, at a mini-

mum, knowledge, which is defined to mean “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.” ORS 161.085(8).

Putting those definitions together, then, a “conduct”

element of a criminal offense statute refers to a bodily move-

ment that is accompanied by an awareness on the part of the

actor that the bodily movement is “of a nature so described.”

Turning to the statute at issue here, ORS 163.415

provides:

“(1) A person commits the crime of sexual abuse in the

third degree if:

“(a) The person subjects another person to sexual con-

tact and:

“(A) The victim does not consent to the sexual contact;

or

Cite as 370 Or 137 (2022) 169

“(B) The victim is incapable of consent by reason of

being under 18 years of age[.]”

The “act” or “bodily movement” described by the statute is

“subject[ing] another person to sexual contact.” ORS 163.415

(1)(a). We know that, to qualify as “conduct,” that bodily

movement must be accompanied by the actor’s “awareness”

that the bodily movement “is of a nature so described.” ORS

161.085(8). The “nature” of the bodily movement described

in the statute is sexual contact, which also is a defined term:

“ ‘Sexual contact’ means any touching of the sexual or other

intimate parts of a person or causing such person to touch

the sexual or other intimate parts of the actor for the pur-

pose of arousing or gratifying the sexual desire of either

party.” ORS 163.305(5).

Therefore, once again synthesizing the definitions,

the conduct described in ORS 163.415(1)(a) is “subject[ing]

another person to [any touching of the sexual or other inti-

mate parts of a person * * * for the purpose of arousing

or gratifying the sexual desire of either party],” with an

“awareness” that the described bodily movements have that

“nature.” Thus, a person who engages in touching another

person’s “sexual or other intimate parts” does not commit

third-degree sexual abuse if the person lacks either the

described “purpose” or, for whatever reason, an “awareness”

that those movements have a sexual nature.

The statute adds another element: that the victim

“does not consent.” ORS 163.415(1)(a)(A). The lack of consent,

however, cannot easily be understood as part of the “bodily

movement” described in the preceding subparagraph. A per-

son who engages in bodily movements that constitute sex-

ual contact either has an awareness that those movements

are sexual in nature or does not have that awareness, but

that awareness would not depend on the state of mind of

the other person. Sexual contact is defined as the touching

of sexual or intimate parts “for the purpose of arousing or

gratifying the sexual desire of either party.” ORS 163.305(5)

(emphasis added). Under that definition, the subjective state

of mind of the person on the receiving end of the “touching”

need not even be considered. Moreover, subparagraph (B) of

the statute describes one form of lack of consent based solely

170 State v. Carlisle

on the victim’s age, which means that the statute encom-

passes situations where the victim factually consents and

the actor has that understanding. It is thus implausible to

understand the “bodily movement” described in the statute

as somehow incorporating a lack of consent on the part of the

victim.

In short, a straightforward application of the rele-

vant definitions supports the conclusion that the “conduct”

described in ORS 163.415(1)(a) is sexual contact done with

an awareness that the contact has that nature. The victim’s

lack of consent is an essential element of the offense, but it

is not part of the actor’s “conduct.” On a blank slate, I believe

that conclusion would be drawn without much difficulty.

We are not writing on a blank slate. In Haltom, this

court considered a different sexual offense statute, ORS

163.425 (defining second-degree sexual abuse), and con-

cluded that the victim’s lack of consent is a conduct element.

366 Or at 823. The Chief Justice concludes that the parallels

are obvious and that Haltom dictates the result here. 370 Or

at 184 (Walters, C. J., dissenting). The lead opinion responds

that the two statutes differ in their text, context, and leg-

islative history. 370 Or at 151-52 (Flynn, J., lead opinion).

Both opinions, therefore, proceed from the premise that

Haltom is soundly reasoned. However, aspects of Haltom’s

reasoning are problematic.

In Haltom, this court took as its starting point what

it understood to be the key explanation in Simonov:

“ ‘[C]onduct’ elements are those that describe the ‘nature or

essential character of the defendant’s act or omission’ or, in

other words, that ‘make the defendant’s own act or omis-

sion of a described nature.’ ‘Circumstance elements,’ in con-

trast, are ‘facts that attend or accompany the defendant’s

conduct,’ and ‘do[ ] not change the essential character of the

prohibited conduct.’ ”

366 Or at 799 (quoting Simonov, 358 Or at 541, 542, 544

(internal citations omitted)). Haltom then held that a vic-

tim’s nonconsent changes the “essential nature” of sexual

intercourse. Id. at 804, 811, 823.

Cite as 370 Or 137 (2022) 171

Haltom did not justify its reasoning with reference

to the relevant definitions. The court did not explain how a

victim’s lack of consent to sexual contact is part of the actor’s

“bodily movement,” nor did it explain how a victim’s lack of

consent connects to an actor’s “awareness” that the bodily

movement is of a sexual nature. Instead, Haltom framed its

analysis in terms that it drew from Simonov, which dealt

with a completely different type of criminal activity, the

unauthorized use of a vehicle. To understand Haltom, then,

it is critical to understand what Simonov held.

Simonov thoroughly reviewed the general culpa-

bility statutes and the definitions of “conduct” and “act,”

concluding that, “[r]ead together, then, the definitions of

the mental states that apply to ‘conduct’ indicate that they

do not merely apply to a particular bodily movement; they

also more broadly apply to other elements that describe the

nature, that is, the essential character, of the prohibited

act.” 358 Or at 540-41 (citing Webster’s definition of “nature”

as “the essential character or constitution of something”).

Separately, the court explained, “conduct elements are those

that describe the nature or essential character of the defen-

dant’s act or omission.” 358 Or at 541; see also id. at 544

(“To constitute conduct, an element must make the defen-

dant’s own act or omission of a described nature[.]” (Emphasis

added.)).

Simonov was not, in that portion of the opinion,

purporting to do anything more than summarize the plain

meaning of the definitional statutes. All that the court

meant to say, as I understand that opinion, is what those

statutes clearly tell us. The conduct element of an offense is

determined by considering, first, what “bodily movement” is

described by the statute, and, second, what else in the stat-

ute gives that described act its “nature” or “essential char-

acter.” That follows directly from the definitions of “conduct”

(an “act” and “its accompanying mental state”) and “know-

ingly” (“an awareness that the conduct of the person is of a

nature so described”). See ORS 161.085(4), (8).

The difficulty highlighted by Simonov, Haltom,

and this case is that the question “What parts of a stat-

utory offense give an act its essential character?” can be

172 State v. Carlisle

understood in two different ways. One might understand the

question to ask, “What is the essential character of the act

that the statute describes?” Alternatively, one might under-

stand the question to ask, “What is the essential character

of the act that the statute prohibits?” The problem with the

second framing of the question is that it introduces circular-

ity into the analysis. As Simonov pointed out,

“It could be argued, in a broad sense, that every element

that is required to create criminal liability is part of the

essential character of the defendant’s act or omission. If

that view were correct, the meanings of conduct and cir-

cumstance would confusingly overlap. But, as our previous

decisions show, the line between the two types of elements,

although sometimes difficult to discern, nevertheless is a

principled one. To constitute conduct, an element must make

the defendant’s own act or omission of a described nature,

which stands in contrast to circumstance elements of an

offense that refer to facts that attend or accompany the

defendant’s conduct.”

358 Or at 544 (emphases added). What the court recognized

in that paragraph is that referring to an “act” as “prohib-

ited” (as even Simonov did in places) can be conceptually

muddy, because an act is not prohibited unless all the ele-

ments of a statutory offense are in place, including both con-

duct and other elements. Thus, when a court refers to the

“proscribed act” or “prohibited act” in a criminal statute,

what the court really means is the described act, which the

statute criminalizes when combined with other elements.

Simonov reflects that understanding in concluding that the

“essential character” of an act is that which “make[s] the

defendant’s own act or omission of a described nature.” Id.

(emphasis added). The essential character cannot be deter-

mined by asking what makes the act “criminal.” As Simonov

pointed out, the answer to that question would be “every

element,” which would give us no basis for distinguishing

between conduct and circumstances.

Simonov went on to hold that, in the unauthorized

use of a vehicle (UUV) statute, the phrase “without the con-

sent of the owner” is “part of the nature or essential char-

acter of the act proscribed by that statute.” Id. at 546. The

court relied heavily on the grammatical structure, noting

Cite as 370 Or 137 (2022) 173

that “without the consent of the owner” is an adverbial

phrase that, in context, “describes how the person rides.” Id.

In doing so, the court noted that the legislature could have

indicated a different understanding by describing the physi-

cal act and the lack of consent in “separately numbered pro-

visions” or “independent clauses.” And, of course, the court

cited the statute at issue in this case, ORS 163.415, as an

example of doing just that.

The Simonov court also supported its conclusion

by explaining that the UUV statute prohibits what is com-

monly known as “joyriding,” and the court took it as nearly

“axiomatic” that unauthorized use is inherent in the concept

of that act. 358 Or at 548. Taken as a whole, considering the

care that Simonov took in working through the statutory

definitions, that opinion is properly understood to hold that

the “act” described by the UUV statute is making unautho-

rized use of a vehicle; the lack of authorization is essential

to the character of the physical act, and therefore part of

the conduct. Whether one thinks Simonov got that answer

right is beside the point; what matters here is how Simonov

framed the question. The question was whether the lack of

consent was intrinsic to the nature of the act; it was not

whether the lack of consent made the act “criminal.”

In Haltom, after discussing Simonov’s analysis, this

court stated that the text of ORS 163.425(1)(a) presents the

question whether “the legislature consider[ed] the empha-

sized phrase ‘and the victim does not consent thereto’ to be

part of the essential character of a prohibited act—subject-

ing a nonconsenting person to sexual intercourse, etc.—or

merely a circumstance that attends the conduct, which is

the sexual intercourse itself?” 366 Or at 803. The court then

summarized the defendant’s argument:

“Here, defendant contends that the victim’s nonconsent is

self-evidently part of the essential character of the conduct

that ORS 163.425(1)(a) proscribes. Defendant observes,

in that regard, that the act or bodily movement that ORS

163.425(1)(a) requires—sexual intercourse (or some other

specified sexual act)—is ordinarily considered natural and

mutually desirable and is made criminal only when the

other person does not consent. Thus, defendant contends,

the ‘does not consent’ requirement is not merely attendant

174 State v. Carlisle

to the sexual conduct that is proscribed in ORS 163.425

(1)(a), in the way that, for example, the value of stolen

property is attendant to the prohibited conduct for theft,

thereby increasing the degree of theft that applies but

not the essential character of the proscribed conduct. See

Simonov, 358 Or at 541 (so explaining). Rather, defendant

argues, nonconsent changes the essential nature of the

specified forms of sexual conduct, which would otherwise

be legal, thereby becoming an integral part of the conduct

that the statute proscribes.”

Id. at 803-04. This court went on to affirm that the

“[d]efendant’s argument faithfully reflects the reasoning” of

Simonov. Id. at 804.

But the defendant’s argument, as summarized by

the court in Haltom, is consistent with Simonov only to the

extent that the defendant argued that “nonconsent changes

the essential nature” of the specified sexual acts. Id. To the

extent the defendant argued that nonconsent is part of the

conduct because it makes “criminal” what would “otherwise

be legal,” that argument is not consistent with Simonov;

rather, it tracks the reasoning Simonov cautioned against

when it explained that, if an element necessary to create

criminal liability was thereby part of the essential charac-

ter of the act, then there would be no way to differentiate

between conduct and circumstances.

Unfortunately, in saying that the defendant’s argu-

ment was faithful to Simonov, Haltom did not expressly

distinguish between those two variants of the defendant’s

argument. However, because Haltom indicated that it was

drawing its test straight from Simonov, we should infer that

Haltom meant to endorse the aspect of the defendant’s argu-

ment that is consistent with Simonov, not the one that is

not. And there are additional indicators that that was the

court’s intent. After briefly summarizing the defendant’s

argument, the court in Haltom engaged in its own extensive

discussion of the conduct-vs.-circumstance question, leading

to its tentative conclusion (at step one of the “default rule”

framework) that lack of consent is a conduct element. 366

Or at 803-11. Neither that lengthy discussion nor the con-

cluding paragraph makes any mention of whether the lack

of consent is essential to making sexual contact “illegal.”

Cite as 370 Or 137 (2022) 175

Instead, as in Simonov, the court focused on other fac-

tors, including grammar, context, and legislative history.

Id.

For those reasons, Haltom should not be read as

adopting a test that frames the “what is conduct” question

by asking what turns something “legal” into something “ille-

gal.” That, however, is the view adopted by the Chief Justice’s

dissent, which urges that, under Simonov and Haltom, an

aspect of a criminal statute is part of the “essential char-

acter” of the described act if it “make[s] an act that would

otherwise be legal into an act that subjects a person to crim-

inal punishment.” 370 Or at 182 (Walters, C. J., dissenting);

see id. (Walters, C. J., dissenting) (“Simonov and Haltom do

not demand that an element be recognized as part of ‘con-

duct’ because its presence is required to convict a person of

a particular offense, but because the element changes the

essential nature of an otherwise legal act in a way that makes

the act itself illegal.” (Emphases in original.)). The dissent

is correct that Simonov and Haltom frame the question as

whether the element “changes the essential nature” of the

act. It is not correct that Simonov and Haltom frame the

question as whether the element turns an “otherwise legal

act” into an “illegal” act.

That reasoning would create interpretative chal-

lenges similar to what Simonov anticipated. For one thing,

it is not clear what it means to say that an “act” described

in a criminal statute would be “otherwise legal.” Everything

is legal unless a criminal law prohibits it. Saying that a

physical act would be “otherwise legal” does not answer any

questions; it begs them. If the Chief Justice’s dissent means

to say that the physical acts of sexual contact are somehow

inherently “legal” and are rendered of concern to legislators

only by a lack of consent, that is incorrect as a matter of

historical fact. Consensual sexual activity has been prohib-

ited at different times in contexts such as sodomy, homosex-

uality, adultery, and incest. So, the acts described in ORS

163.425 and ORS 163.415 are not always “otherwise legal.”

If, on the other hand, the dissent means only to say that

sexual acts between two people who ordinarily are allowed

to engage in them are “otherwise legal” and are rendered

176 State v. Carlisle

illegal in ORS 163.415 and ORS 163.425 only by a lack of

consent, then the statement is tautological.

If Simonov had meant to hold that statutory “con-

duct” can be determined by reference to whether a described

aspect of the statute makes an otherwise innocuous act

“criminal,” it is unlikely that the court in that case would

have looked to State v. Rainoldi, 351 Or 486, 268 P3d 568

(2011), and State v. Miller, 309 Or 362, 788 P2d 974 (1990),

for “assistance in distinguishing between elements that

describe circumstances and other elements.” 358 Or at 542.

Although both of those cases, unlike Haltom and this one,

concerned offenses that are outside the Criminal Code,

Simonov nonetheless viewed them as “instructive.” Id. at

543. Rainoldi addressed the offense of felon in possession of

a firearm, ORS 166.270(1), and Miller dealt with the offense

of driving under the influence of intoxicants, ORS 813.010.

As the court explained them in Simonov, both cases hold

that the “status” element of the respective offenses—being a

felon, and being intoxicated—requires no mental state. 358

Or at 543.

What is significant is that, viewed in the terms pro-

posed by the Chief Justice’s dissent, the acts described in

those offenses—possessing a firearm and driving a vehicle,

respectively—have as much or more claim to being “other-

wise legal” as sexual acts. Only the status of being a felon

makes the act of possessing a firearm “criminal,” and only

the status of being intoxicated makes the act of driving

“criminal.” Yet, this court has held that those elements

are not conduct. If “making something criminal” were the

test for what is “conduct,” those cases would be in question

under the dissent’s understanding of Simonov—yet Simonov

quoted them with approval.

In short, neither Simonov nor Haltom directs that

a court should determine whether an element is “conduct”

by asking whether it converts an act that would otherwise

be legal into one that is criminal. Both cases ask, instead,

whether the element is part of the essential character of the

described act as an act.

I doubt that Haltom answered that question cor-

rectly. What Haltom gave insufficient attention to, in my

Cite as 370 Or 137 (2022) 177

view, are the actual statutory definitions on which Simonov

spent so much time. Haltom went straight to Simonov, which

dealt with an entirely different realm of human behavior. In

asking whether the victim’s lack of consent is essential to

the character of the sexual acts described in ORS 163.425,

Haltom should have engaged directly with the definitions

of “conduct,” “act,” “sexual contact,” and “knowingly.” Had

that analysis occurred, for the reasons discussed earlier in

this opinion, the court would have had difficulty explain-

ing how a victim’s nonconsent is an essential aspect either

of the act of touching another person’s body parts or of the

actor’s “awareness” that the touching is sexual in nature.

Without that analysis, the remainder of Haltom’s discus-

sion, although extensive, is not compelling.

Returning to this case, the statutory definitions,

together with other evidence cited by the lead opinion, sup-

port the conclusion that the legislature would have under-

stood a victim’s lack of consent in ORS 163.415(1)(a)(A) to be

a circumstance, not part of the actor’s conduct. That leads to

a presumptive conclusion that the legislature did not intend

for a mental state of “knowingly” to apply to the lack of con-

sent. The remaining question is whether other indicators of

legislative intent clearly refute that presumption. Seeing no

such indicators, I would conclude, like the lead opinion, that

the statute does not require a mental state of knowledge for

the “does not consent” element.

Balmer, J., joins in this concurring opinion.

WALTERS, C. J., dissenting.

In 1971, the legislature enacted general culpability

statutes, which this court has recognized as setting out

“a uniform statutory scheme for determining which ele-

ments of an offense require which culpable mental states.”

State v. Owen, 369 Or 288, 295, 505 P3d 953 (2022). In

Owen, decided just four months ago, this court reiterated

the “core principles” of those statutes as requiring “an ini-

tial determination of the category—conduct, circumstance,

or result—under which the material element falls.” Id. at

308 (quoting State v. Haltom, 366 Or 791, 799, 472 P3d 246

(2020)).

178 State v. Carlisle

In Simonov, this court held that, unless otherwise

indicated for a particular offense, the minimum culpable

mental state for a “conduct” element is a “knowing” men-

tal state. State v. Simonov, 358 Or 531, 539-40, 368 P3d 11

(2016). We also construed both statutory terms—“conduct”

and “knowingly”—and held that a conduct element is one

that applies to “more than a bodily movement”; a conduct

element “describe[s] the nature, that is, the essential char-

acter, of the prohibited act.” Id. at 540-41. Finally, we held

that, in the crime of unauthorized use of a vehicle, the non-

consent element is a conduct element; it is “part of the essen-

tial character of the proscribed act” and requires a knowing

mental state. Id. at 548.

More recently, in Haltom, this court adhered to the

“core principles” of the general culpability statutes and this

court’s construction of those statutes in Simonov. We held

that, in the crime of second-degree sexual abuse, the factual

“does not consent” element is a conduct element because it

“changes the essential nature of specified forms of sexual

conduct, which would otherwise be legal, thereby becoming

an integral part of the conduct that the statute proscribes.”

366 Or at 804.

In this case, if the lead opinion had abided by the

principle of stare decisis, and adhered to those same core

principles, constructions, and holdings, then the answer to

the question posed in this third-degree sexual abuse case

would have been straightforward: The lead opinion would

have decided that the factual “does not consent” element is a

conduct element that, at a minimum, requires a “knowing”

mental state.

The lead opinion does not follow that path. It carves

out a different one and decides that, for third-degree sexual

abuse, the factual “does not consent” element requires only a

showing of “criminal negligence.” The lead opinion may have

made that choice to reflect the fact that, in 2021, after our

decision in Haltom and after defendant’s trial in this case,

the legislature amended ORS 163.325 to provide an affirma-

tive defense that now applies in cases of second and third-

degree sexual abuse. Or Laws 2021, ch 410, § 1. Under that

amendment, defendants who are charged with those crimes

Cite as 370 Or 137 (2022) 179

and who prove that they “reasonably believed that the victim

consented” to the sexual contact have an affirmative defense

to the charged crimes. ORS 163.325(4). As long as the lead

opinion’s decision in this case is understood as deciding no

more than the narrow issue presented here—the minimum

mental state for the nonconsent element of third-degree sex-

ual abuse in cases that are governed by the law prior to the

2021 amendment of ORS 163.325—the decision will be of

little consequence in future cases; the amended statute, and

not the lead opinion’s decision, will control. I write, never-

theless, in dissent. I do so to call attention to what I see

as the lead opinion’s unnecessary and mistaken departure

from this court’s prescribed and well-reasoned path, and to

counsel against similar departures in the future.

1. The general culpability statutes provide a default

rule that should apply in this precise circumstance—

when the legislature is silent and does not affirma-

tively indicate the applicable minimum culpable

mental state.

As the lead opinion acknowledges, the 1971

Legislative Assembly enacted the general culpability stat-

utes, now codified at ORS 161.085 to 161.125, to provide

“a uniform statutory scheme for determining which ele-

ments of an offense require which culpable mental states.”

370 Or at 142 (Flynn, J., lead opinion) (citing Owen, 369

Or at 295). One of those statutes is ORS 161.115(2), which

this court discussed at length in two prior cases—Simonov

and Haltom. In both cases, we used “our well-established

methodology” to construe that statute and the four mental

states that are defined in ORS 161.085(7) through (10). In

Simonov, this court explained that, in ORS 161.115 and ORS

161.085(7) - (10), the legislature provided a set of “core prin-

ciples” for determining what culpable mental state attaches

to an element of a criminal offense when none is specified in

the statute. 358 Or at 537-40. Those principles include the

one that is at issue here—that, “[u]nless otherwise indicated

for a particular offense,” a minimum culpable mental state

of “knowingly” attaches to an element that constitutes “con-

duct,” as that term is defined in the Criminal Code, while

a minimum culpable mental state of criminal negligence

180 State v. Carlisle

attaches to an element that constitutes a “circumstance.” Id.

at 539-40.

In Haltom, this court explained that, in order to

“honor[ ] the default rule that is at the heart of the Simonov

analysis,” a court should initially focus on the type of ele-

ment at issue and the mental state that accompanies that

type of element, and then consider any “evidence directed at

determining what mental state the legislature might have

intended to attach to the element at issue * * * to confirm

or rebut any tentative conclusion reached under the default

rule analysis.” 366 Or at 802 (emphasis added). The legis-

lature’s scheme is elegant and the reason for the two-step

process outlined in Haltom is obvious: The legislature cre-

ated a default rule to address the instance in which it fails

to expressly state the required mental state for a particular

element of a crime. In that instance, the type of element—

conduct or circumstance—indicates the minimum culpable

mental state, unless (at step two of the analysis) there is

an affirmative indication that the legislature that enacted

the statute intended that some different mental state be

required for the element—in spite of its failure to expressly

so state. That two-step analysis thus provides a predict-

able set of rules that promote the legislature’s intended

uniformity.

In the present case, the lead opinion finds “limits

to that path” and suggests that it applies only when an

examination of the statute indicates that the legislators who

enacted it had a “shared understanding” of the element at

issue as a “conduct” or “circumstance” element. 370 Or at

145, 149 (Flynn, J., lead opinion). In support of that theory,

the lead opinion points to 1971 legislative history showing

that the drafters were unable to agree on how to articulate

the distinction between conduct and circumstance and the

fact that the legislature has not yet adopted a definition of

the term “circumstance” or an express rule for distinguish-

ing between “conduct” and “circumstance” elements. 370 Or

at 147-48 (Flynn, J., lead opinion). In so positing, the lead

opinion fails to heed the undeniable—that this court already

has construed the general liability statutes as providing the

necessary definitions and drawing a discernable line.

Cite as 370 Or 137 (2022) 181

In Simonov, we looked to the statutory definition

of the term “knowingly”—which provides, in part, that

“knowingly” means that person “acts with an awareness

that the conduct of the person is of a nature so described,”

ORS 161.085(8)—and the dictionary definition of the word

“nature” to conclude that “the definitions of the mental states

that apply to ‘conduct’ indicate that they do not merely apply

to a particular bodily movement; they also more broadly

apply to other elements that describe the nature, that is,

the essential character, of the prohibited act.” Simonov, 358

Or at 541. We also considered other pertinent statutory con-

text that “reinforce[d] that conclusion” and found it “consis-

tent with the principle that conduct elements are those that

describe the nature or essential character of the defendant’s

act or omission.” Id. (emphasis added). We then considered

the question of how conduct differs from circumstance and

looked to the theft statutes as an example:

“ ‘Theft’ in any degree is defined by ORS 164.015, which

describes the prohibited conduct (the taking of property)

and the applicable mental state (intent to deprive another

of property). The prohibited conduct for theft in any degree is

the taking of another’s property with the intent to deprive the

owner of it. Id. A person commits first-degree theft when

the person commits theft as defined in ORS 164.015, and

the value of the property is $1,000 or more. ORS 164.055.

If the value of the property is $100 or more and less than

$1,000, the person commits second-degree theft, and if the

value of the property is less than $100, the person com-

mits third-degree theft. ORS 164.045 (second-degree theft);

ORS 164.043 (third-degree theft).

“The specific value of the stolen property does not

change the essential character of the prohibited conduct.

Accordingly, the value of the stolen property for any degree

of theft is a circumstance; it is an accessory fact that accom-

panies, not modifies, the defendant’s conduct.”

Id. at 541-42 (emphases added). Thus, we concluded, when

an element does not change the essential nature of the

proscribed act, but instead merely accompanies it, it is a

circumstance. Id. at 542. It follows from that statutorily

derived definitional distinction, as we later expressly recog-

nized in Haltom, 366 Or at 804, that, when an element does

182 State v. Carlisle

change the essential nature of an act or omission, including

by changing an otherwise legal act or omission in a way

that causes that act to be criminal, the element is part of

the “conduct” that the statute proscribes. In reaching that

conclusion, we made the determination with which the lead

opinion struggles; we determined that, in that instance, the

legislature intended and understood the element at issue to

be a “conduct” element. Simonov, 358 Or at 549.

The lead opinion suggests that, if that definitional

distinction were correct, then every element that is required

to create criminal liability would be part of conduct. 370 Or

at 146 (Flynn, J., lead opinion). But that argument is a red

herring. Simonov and Haltom do not demand that an ele-

ment be recognized as part of “conduct” because its pres-

ence is required to convict a person of a particular offense,

but because the element changes the essential nature of an

otherwise legal act in a way that makes the act itself illegal.

So, again using theft as an example, to prove liability for

first-degree theft, the state must prove that the value of

the stolen property is more than $1,000. The value of the

property is necessary to establish a violation of that partic-

ular statute, but it is not a conduct element because it does

not change the essential nature of the proscribed act—the

taking of property intending to deprive the owner of it—or

make an act that would otherwise be legal into an act that

subjects a person to criminal punishment.

Although this court acknowledged, in Simonov,

that the distinction it derived from Oregon statute might

not always provide an easy answer, it also said, in the same

breath, that the rule was a “principled one.” 358 Or at 544.

When the legislature is silent as to its intent with respect to

mental state, its silence provides a reason to use the default

rule it gives us, not a reason to avoid doing so. In Simonov

and Haltom, this court did not consider whether there was

evidence that the legislature had a “shared understand-

ing” of the nature of the nonconsent element at issue. We

simply described, and then applied, the distinction we drew

from the general culpability statutes—that a conduct ele-

ment describes the nature or essential character of the pro-

scribed act, meaning that an element is a conduct element if

Cite as 370 Or 137 (2022) 183

it changes an act that is lawful into one that is unlawful. We

made an initial determination that, for the crimes at issue,

the nonconsent elements were conduct elements, pointing to

“knowingly” as the minimum culpable mental state. We then

looked, but could not find, affirmative indications that the

legislature intended to require a different mental state. That

path may not always be useful, but it was useful in those

cases and certainly should be used in similar cases in the

future. Given principles of stare decisis and the benefit that

the default rule provides, we should be loath to disregard it.

2. If the lead opinion had followed the analysis in

Simonov and Haltom it would have reached the same

conclusion that the court reached in those cases—

that to prove nonconsent, the state must prove the

defendant acted with a knowing mental state.

In Simonov, the crime at issue was Unauthorized

Use of a Vehicle, ORS 164.135(1) (2013). This court began

with a discussion of the adverbial phrasing of the statute’s

“without the consent of the owner” element as an indication

that that element changes the meaning of the act that the

statute references (“ride”), and ended—powerfully—with a

more direct application of the distinction between conduct

and circumstance than had previously been explained, find-

ing it to be “axiomatic” that “riding without permission is

part of the essential character of the proscribed act” and,

thus, “conduct.” Simonov, 358 Or at 547-48. In Haltom, we

identified that same examination as “the most important

factor” in the analysis, agreeing with defendant that the

“does not consent” element in the second-degree sexual abuse

statute “changes the essential nature of the specified forms

of sexual conduct, which would otherwise be legal, thereby

becoming an integral part of the conduct that the statute

proscribes.” Haltom, 366 Or at 804. We reasoned that, inso-

far as the second-degree sexual abuse statute prohibits

sexual intercourse—an act that generally is legal and ordi-

narily mutual and consensual—only when it is of the nature

described by the “does not consent” element, that “does not

consent” element changes and defines the essential nature

of the act or omission that is prohibited and therefore is part

of the conduct. Id.

184 State v. Carlisle

If the lead opinion had conducted the same analysis

here, then it would have concluded, with little trouble, that

the statute’s “does not consent” element is a “conduct” ele-

ment. Under the third-degree sexual abuse statute, ORS

163.415, an act that generally is legal and ordinarily is

mutual and consensual—“sexual contact”—is prohibited

only when it is of a certain nature, viz., when it is not con-

sensual. The “does not consent” element thus “changes the

essential nature” of the identified sexual acts, “which would

otherwise be legal, thereby becoming an integral part of the

conduct that the statute proscribes.” Haltom, 366 Or at 804.

The fact that the “sexual contact” is framed in terms of “sub-

ject[ing] another person to sexual contact” reaffirms that

conclusion, as did the similar “subject[ing] another person

to sexual intercourse” framing for this court’s conclusion in

Haltom.

The lead opinion avoids that analysis. It acknowl-

edges that ORS 163.415(1) uses the same term—“subjects”—

that we described, in Haltom, as supporting a tentative con-

clusion that the legislature understood lack of consent to be

part of the conduct proscribed in ORS 163.425, because it

carries an implication of unwillingness. 370 Or at 153-54

(Flynn, J., lead opinion). But it contends that the structure

of ORS 163.415(1)—setting out a physical act as the first ele-

ment and then, in separate provisions, two alternative ways

of proving the second element—points in a different direc-

tion, given that, in a footnote in Simonov, we called out that

precise structure as one that might be used to set out cir-

cumstance elements. 370 Or at 153 (Flynn, J., lead opinion).

However, in Haltom, we expressly rejected reliance on the

Simonov footnote, 366 Or at 808-09, and the lead opinion

does not explain why it is appropriate to rely on the footnote

here.

Most significantly, rather than engaging in an

analysis of the statutorily derived line between conduct

and circumstances that this court outlined and applied in

Simonov and Haltom, the lead opinion concludes that that

analysis is not helpful because it finds no support in the text,

context, or legislative history for the idea that the physical

act identified in ORS 163.415(1)—“sexual contact”—is a

Cite as 370 Or 137 (2022) 185

“fundamentally consensual act.” 370 Or at 154-56 (Flynn, J.,

lead opinion). But the lead opinion fails to show why that

absence of textual, contextual, or historical support dis-

tinguishes ORS 163.415(1) from the statutes at issue in

Simonov and Haltom. In both of those cases, we concluded

that it is “axiomatic” that lack of consent changes the essen-

tial (or “fundamental”) nature of the underlying acts. If the

same analysis were applied here, it would inescapably lead

to the same conclusion with respect to ORS 163.415(1)—

that the “does not consent” element is part of the proscribed

conduct.

3. The evidence that the lead opinion relies on to con-

clude that the legislature intended a minimum men-

tal state of criminal negligence is not persuasive.

Finally, the lead opinion relies on questionable

evidence to support its conclusion that the legislature that

enacted ORS 163.415(1) intended to attach a minimum

mental state of criminal negligence to the statute’s “does

not consent” element. The lead opinion begins with the

facts, which I accept, that there are three ways of proving

the nonconsent element of ORS 163.415—lack of consent in

fact, lack of legal capacity to consent based on age, and other

forms of legal incapacity—and that those three ways serve

a functionally equivalent role in the statute. 370 Or at 156-

57 (Flynn, J., lead opinion). The lead opinion then reasons,

based on the affirmative defense set out in ORS 163.325,

that, for nonconsent based on legal incapacity to consent, by

age or disability, the legislature did not intend that the state

be required to prove that the defendant knew of those bases

for nonconsent. 370 Or at 157-58 (Flynn, J., lead opinion).

The lead opinion concludes that the same must be true of

the other type of nonconsent in ORS 163.415—factual con-

sent. 370 Or at 159 (Flynn, J., lead opinion).

The lead opinion’s reasoning is not sound. The gen-

eral rule at common law was that, to be held criminally lia-

ble, a person must be aware of the facts that make their

actions criminal. However, “statutory rape” was viewed dif-

ferently. Lack of knowledge of the victim’s age was consid-

ered a “strict liability” element; the state was not required

186 State v. Carlisle

to prove that the defendant knew the victim’s age. By 1971,

however, that approach was considered too harsh. So, rather

than follow the historic strict-liability approach for “statu-

tory rape,” the 1971 legislature enacted ORS 163.325, which

retained strict liability for the nonconsent element of “stat-

utory rape” (and other “statutory sex offenses”) when the

victim was under 16, but provided that it was an affirma-

tive defense if the person reasonably believed that the vic-

tim was over 16. Relatedly, for sexual offenses in which the

inability to give legal consent was based on disability rather

than age, the legislature made lack of knowledge an affir-

mative defense.

The text that the legislature used to make those

changes is important. For a child under 16, the legislature

provided that it is “no defense” that the defendant did not

know the child’s age. ORS 163.325(1). For a child over 16, the

legislature provided that it is “an affirmative defense” for

defendant to prove that the defendant reasonably believed

that the child was above the specified age. ORS 163.325(2).

The drafters used the terms “no defense” and “affirmative

defense” differently. In providing that lack of knowledge

is “no defense” for crimes against children under age 16,

the legislature indicated that the state could prove those

crimes without proving defendants’ knowledge of the age of

the child. But, in providing “affirmative defenses” for other

crimes, the legislature established that defendants could

defeat liability by proving the affirmative defenses that

were provided.

The commentary to the Final Draft and Report of

the Proposed Oregon Criminal Code demonstrates that, in

doing so, the legislature understood that “statutory rape” was

an exception to the general rule requiring knowledge of non-

consent. The commentary states, “The rule that knowledge

of the victim’s age is not an essential element of the crime of

statutory rape and that therefore justifiable ignorance of age

is not a defense in a prosecution for that crime is apparently

an exception to the general rule that guilt attaches only where

the accused intended to do the prohibited act.” Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 106, 108 (July

1970) (emphasis added). That italicized phrase indicates

Cite as 370 Or 137 (2022) 187

that the drafters believed that the “prohibited act” was not

just sexual intercourse but was sexual intercourse with an

underage person (with someone who could not legally con-

sent). In addition, the commentary treats “without consent”

as key and as part of the prohibited “conduct.” Commentary

§§ 115 & 116 at 122-23. Thus, the “conduct” includes both

the act and the accompanying mental state about the other

person’s age (that is, the other person’s legal nonconsent).

And that makes sense, because the “conduct” or “prohibited

act” that the drafters were concerned with (and what they

defined) was sexual contact without consent.

The legislature’s enactment of ORS 163.325 shows

how carefully the legislature thought about the culpable

mental state for sex offenses and that it intended that differ-

ent types of nonconsent be treated differently. The legisla-

ture provided that, for certain offenses, lack of knowledge of

nonconsent was “no defense” and, for others, lack of knowl-

edge could constitute an affirmative defense. But the legis-

lature provided (or negated) such defenses only for noncon-

sent based on age and other legal incapacity. With respect to

factual nonconsent, there is no reason to think that the leg-

islature’s silence indicates an intent to require a “defense” or

an “affirmative defense” to negate the common-law require-

ment of knowledge. Historically, the state was required to

prove that a defendant knew of a victim’s factual noncon-

sent. ORS 163.325 and the legislative commentary explain-

ing it supports the conclusion that the legislature intended

that requirement to continue.

Moreover, the lead opinion’s analysis ultimately rests

on its view—which it draws from State v. Ofodrinwa, 353 Or

507, 300 P3d 154 (2013)—that the legislature understood

the three alternative ways of proving lack of consent to be

essentially equivalent. 370 Or at 156-57 (Flynn, J., lead

opinion). Because the lead opinion depends on that under-

standing, it is worth remembering what the legal issue was

in Ofodrinwa. The state had charged the 21-year-old defen-

dant with multiple counts of second-degree sexual abuse for

having sexual intercourse with his 16-year-old girlfriend. At

the trial, the defendant argued that the state had to prove

“that the victim had not actually consented; he contended

that the victim’s lack of capacity to consent was not sufficient

188 State v. Carlisle

to prove a violation of [ORS 163.425(1)].” Id. at 510. The trial

court rejected that argument and this court affirmed, hold-

ing simply that “the legislature used the phrase ‘does not

consent’ to refer to instances in which the victim does not

actually consent and also to instances in which the victim

lacks the capacity to consent.” Id. at 511. Thus, all that

Ofodrinwa shows is that the legislature recognized (and dis-

tinguished between) the three different forms of nonconsent.

They viewed the three forms “as alternative ways of proving

the same thing—a lack of consent.” Id. at 514. And, of partic-

ular relevance here, given the lead opinion’s reliance on ORS

163.325, the court in Ofodrinwa noted that the legislature

created affirmative defenses that varied depending on the

form of nonconsent. Id. at 515.

The lead opinion bases its conclusion on its belief

that the legislature did not intend to create different rules

for culpable mental states for the different forms of noncon-

sent. But that is exactly what the legislature did through

ORS 163.325, which it enacted to change the traditional

rule regarding mental states for legal nonconsent—that (as

described) no mental state was required. Because that rule

was too harsh, the legislature provided affirmative defenses

for most forms of legal nonconsent. Notably, those affirma-

tive defenses are different, as is plain from the text of ORS

163.325. For legal nonconsent based on age, defendants are

not guilty if they prove that they “reasonably believed the

child to be above the specified age at the time of the alleged

offense.” ORS 163.325(2). But for legal nonconsent based

on mental or physical incapacity, defendants are not guilty

if they prove that they “did not know of the facts or condi-

tions responsible for the victim’s incapacity to consent.” ORS

163.325(3) (emphasis added). In short, the lead opinion rests

on the idea that, because the three forms of nonconsent are

functionally equivalent, we must assume that the legisla-

ture would not reject a “knowingly” mental state for the two

forms of legal nonconsent but not for factual nonconsent. But

that premise is incorrect, and the lead opinion’s reasoning

ignores the history and legislative commentary that show

that, both before and in the 1971 code, the legislature made

different choices regarding the required mental state for

factual and legal nonconsent.

Cite as 370 Or 137 (2022) 189

The fact that the lead opinion leans so heavily on

a questionable inference to support its point with regard to

the mental state that attaches to the “does not consent” ele-

ment of ORS 163.415(1)(a)(A) demonstrates the weakness of

its entire approach to the mental state issue. Neither the

lead opinion nor the state point to evidence that affirma-

tively indicates a legislative intent to make criminal negli-

gence of factual nonconsent sufficient to convict a defendant

of third-degree sexual abuse under that provision.

4. Conclusion

In conclusion, in 1971, the legislature enacted

general culpability provisions intended to create a uni-

form scheme for determining which elements of an offense

require which culpable mental state. This court has con-

strued those provisions, and we therefore have the benefit

of thoughtfully constructed definitions and “core principles”

that set out a process for determining what minimum cul-

pable mental state applies to an element of an offense when

the legislature is silent on that point. In this case, the lead

opinion finds reason to avoid those “core principles,” defini-

tions, and holdings, but its opinion determines nothing more

than the minimum mental state for the “does not consent”

element of ORS 163.415(1)(a)(A) in prosecutions subject to

the law before the legislature amended of ORS 163.325 in

2021. That path is its prerogative, but not one that future

courts must, or should, follow. I dissent.

Duncan, J., and Nakamoto, S. J., join in this dis-

senting opinion.

DUNCAN, J., dissenting.

In criminal law, there is a difference between fac-

tual and legal nonconsent to sexual contact. Factual non-

consent is when a person does not acquiesce to the contact.

Legal nonconsent is when, even if a person acquiesces to

the contact, the person lacks the legal capacity to consent

because of the person’s age or mental or physical condi-

tion. This case involves factual nonconsent. The question

presented is whether, when the state charges a defendant

with third-degree sexual abuse on the theory that the defen-

dant had sexual contact with another person without that

190 State v. Carlisle

person’s factual consent in violation of ORS 163.415(1)(a)(A),

the state must prove that the defendant knew that the other

person did not acquiesce to the contact.

Although this case involves factual nonconsent, the

lead opinion’s answer to that question is ultimately based

on ORS 163.325, a statute concerning defenses to sexual

offenses involving legal nonconsent. As I will explain, the

lead opinion’s reliance on that statute is misplaced.

The reasoning of the plurality’s lead opinion is as

follows. First, the plurality observes that there are differ-

ent forms of nonconsent: “ ‘(1) when the victim is forcibly

compelled to submit; (2) when the victim is considered to

be incapable of consenting as a matter of law; and (3) when

the victim does not acquiesce in the actor’s conduct.” 370

Or at 156 (Flynn, J., lead opinion) (quoting Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 105, 106 (July

1970)). Then the plurality cites State v. Ofodrinwa, 353 Or

507, 514, 300 P3d 154 (2013), for the proposition that the

legislature intended the different forms of nonconsent to

be “equivalent.” 370 Or at 156-57 (Flynn, J., lead opinion).

But the plurality misreads Ofodrinwa. All that this court

held in that case was that nonconsent could be proven in

alternative ways. Ofodrinwa, 353 Or at 532 (explaining that

the state could prove nonconsent by proving factual or legal

nonconsent). Ofodrinwa did not hold that the legislature

intended the required mental states for the different forms

of nonconsent to be “equivalent.”

Moreover, we know that the legislature did not

intend the mental states for the different forms of noncon-

sent to be “equivalent.” The very statute that the lead opin-

ion relies on to reach its conclusion, ORS 163.325, shows that

the legislature did not intend the mental states for those

different forms to be the “equivalent,” even for the different

forms of legal nonconsent. ORS 163.325 provides:

“(1) In any prosecution under ORS 163.355 to 163.445

in which the criminality of conduct depends on a child’s

being under the age of 16, it is no defense that the defen-

dant did not know the child’s age or that the defendant rea-

sonably believed the child to be older than the age of 16.

Cite as 370 Or 137 (2022) 191

“(2) When criminality depends on the child’s being

under a specified age other than 16, it is an affirmative

defense for the defendant to prove that the defendant rea-

sonably believed the child to be above the specified age at

the time of the alleged offense.

“(3) In any prosecution * * * in which the victim’s lack

of consent is based solely upon the incapacity of the vic-

tim to consent because the victim is mentally defective,

mentally incapacitated or physically helpless, it is an affir-

mative 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.”1

ORS 163.325 establishes different rules for legal noncon-

sent based on age and legal nonconsent based on mental or

physical incapacity. Indeed, ORS 163.325 even establishes

different rules for nonconsent based on age: paragraph (1)

provides that lack of knowledge of age is no defense when

the complainant is under 16, but paragraph (2) provides

that a reasonable belief regarding age is an affirmative

defense when the complainant is above 16. So, the premise

upon which the lead opinion depends—that the legislature

intended to treat the different forms of nonconsent the same

or similarly for mental state purposes—is incorrect, even for

legal nonconsent.

The idea that ORS 163.325 reflects a legislative

intent regarding factual nonconsent is also incorrect. It

ignores the reason for the statute, which was to establish

mental state defenses for “statutory rape” and other sex

offenses based on legal nonconsent. That reason is explained

in the legislative history of ORS 163.325. Factual noncon-

sent and legal nonconsent had been treated differently for

mental state purposes prior to 1971. There is no reason to

believe that the legislature intended to treat them the same

in 1971. To the contrary, the existence of ORS 163.325 and

the commentary explaining it show that the legislature was

continuing to treat them differently.

1

As the lead opinion notes, “ORS 163.325 remained in the same form from

1971 through the time of the offense for which defendant was prosecuted.” 370

Or 157 n 14 (Flynn, J., lead opinion). For that reason, all references to the stat-

ute in this opinion are to the original version of the statute unless otherwise

noted.

192 State v. Carlisle

In the commentary, the drafters explained that the

then-existing law did not require a culpable mental state

for legal nonconsent when the nonconsent was based on the

victim’s age. Commentary § 106 at 108. Specifically, they

stated, “Under present law, it is generally held that a reason-

able mistake as to the age of the victim does not exculpate

or mitigate the offense.” Id. The drafters further explained

that that view had been criticized by legal commentators

and rejected by other courts. Id. The drafters specifically

mentioned People v. Hernandez, 61 Cal 2d 529, 393 P2d 673

(1964), explaining that, until that case, “it was the univer-

sally accepted view that the defendant’s knowledge of the

age of the woman was not an essential element of the crime

of statutory rape.” Commentary § 106 at 108. The drafters

went on to explain that

“[t]he rule that knowledge of the victim’s age is not an essen-

tial element of the crime of statutory rape and therefore

justifiable ignorance of age is not a defense in a prosecution

for that crime is apparently an exception to the general rule

that guilt attaches only where the accused intended to do the

prohibited act.”

Id. (emphases added). Thus, the drafters understood that

the “general rule” was that a defendant had to know the

facts that caused his actions to be criminal. The law gov-

erning “statutory rape” was an exception to the general rule

because the state did not have to prove that the defendant

knew the fact that caused his act to be criminal: that the

victim was underage and by law could not consent.

The drafters’ explanation of the then-existing law

shows that they understood that the general rule was that

a defendant had to know the facts that caused his conduct

to be criminal. Under that rule, a defendant charged with a

crime based on factual nonconsent had to know that he was

acting without factual consent.

The drafters proposed, and the legislature enacted,

the provision that was later codified as ORS 163.325 to

increase the culpability requirement for “statutory rape”

and other sexual offenses based on legal nonconsent.

Commentary § 106 at 108-09. In other words, they created

the provision to narrow the exception for legal nonconsent.

Cite as 370 Or 137 (2022) 193

ORS 163.325 has nothing to do with factual nonconsent.

Factual nonconsent was already governed by what the draft-

ers described as the “general rule.”

The error in the lead opinion’s reasoning is made

clear by the fact that, even though factual nonconsent has

historically been subject to a higher culpability requirement

than legal consent, the lead opinion’s reasoning can lead to

the opposite result. To illustrate: Because the lead opinion

holds that the required mental state for factual noncon-

sent for third-degree sexual abuse is something other than

“knowing,” a defendant charged with that crime based on

factual nonconsent will be guilty even if he did not know that

the complainant did not consent; but, under ORS 163.325(3),

a defendant charged with that crime based on legal noncon-

sent due to mental or physical incapacity will not be guilty

if he did not know that the complainant did not consent.

The lead opinion offers no explanation for that different

result.

Based on its unsupported belief that the legislature

intended the different forms of nonconsent to be treated

the same or similarly for mental state purposes, the lead

opinion posits that it is significant that ORS 163.325 does

not address mental states for factual nonconsent. 370 Or

at 159-60 (Flynn, J., lead opinion). The lead opinion’s con-

clusion reflects a failure to appreciate why the legislature

enacted ORS 163.325: It needed to specify exceptions to

the general rule regarding culpable mental states for legal

nonconsent. The reason that ORS 163.325 does not address

factual nonconsent is because the legislature intended fac-

tual nonconsent to be governed by the general rule, not any

special exception.2 See Minutes, Criminal Law Revision

Commission, Subcommittee No. 1, Dec 18, 1968, 4 (under the

draft, a culpable mental state would be required for every

2

The lead opinion seems to suggest that factual nonconsent was a new con-

cept in 1971 and, therefore, it would not make sense to conclude that a general

rule applied to factual nonconsent. 370 Or at 162-63 (Flynn, J., lead opinion).

But factual nonconsent was not a new concept in 1971. Factual nonconsent was

an element of common law rape, as the commentary to the proposed code states:

“At common law, to constitute the crime of rape on a female above the age of

consent, three elements must be present: (1) carnal knowledge, (2) force, and

(3) the commission of the act without the consent or against the will of the

woman.” Commentary §§ 109-11 at 113.

194 State v. Carlisle

element in the definition of a crime and “it was only incum-

bent upon the Commission to make affirmative exceptions”).

A few other points in the plurality’s lead opinion

merit brief responses. The plurality contends that there is a

meaningful difference between the conduct at issue in State

v. Simonov, 358 Or 531, 368 P3d 11 (2016) (riding in anoth-

er’s vehicle without consent), and State v. Haltom, 366 Or

791, 472 P3d 246 (2020) (sexual intercourse without consent)

on the one hand, and the conduct at issue in this case (sex-

ual contact without consent). The plurality says:

“In Simonov, the prohibited conduct was so fundamentally

different from consensual use of a vehicle that the conduct

historically had its own name—‘joyriding.’ See 358 Or at

548 (explaining that ‘[t]he nature of joyriding is the tempo-

rary use of a vehicle without permission’).”

370 Or at 155 (Flynn, J., lead opinion). The plurality sug-

gests that the same is not true for the crime at issue here.

But of course it is. Nonconsent is the key aspect of all the

sexual offenses defined in 1971 code. See Commentary § 105

at 106 (stating that the “[l]ack of consent is the common

denominator for all the crimes proscribed” in Article 13 of

the proposed code, which defines the sexual offenses). It is

the essential characteristic of those offenses. And, if the

existence of other names matters, sexual contact without

consent has its own name; it is “sexual abuse.” The noncon-

sent is what makes sexual contact “abuse.”3

The plurality also mentions that, when discuss-

ing the creation of the crime of sexual abuse, the drafters

referenced the crime of assault. 370 Or at 163 (Flynn, J.,

lead opinion). But that reference does not aid the plural-

ity. The commentary states, “The offense of sexual abuse

3

The lead opinion seems to say that, in Haltom, we suggested that sexual

intercourse is “fundamentally a consensual act[.]” 370 Or at 154-55 (Flynn, J.,

lead opinion). The lead opinion is mistaken. In Haltom, we recognized, as anyone

would, that sexual intercourse may be consensual or nonconsensual and that, if

it is consensual, it is not criminal, but, if it is nonconsensual, it is criminal. As in

Simonov, in Haltom, we based our ultimate holding on the fact that what made

the defendant’s act criminal was the lack of consent. We reasoned that the lack

of consent was part of the “essential character” of the act at issue, and, there-

fore, the lack of consent element was a “conduct” element and, as such, required

a “knowing” mental state. Simonov, 358 Or at 549; Haltom, 366 Or at 803,

823-24.

Cite as 370 Or 137 (2022) 195

is intended to cover all unconsented acts of sexual contact

which do not involve the element of genital penetration. * * *

Under the common law such conduct would have constituted

an assault.” Commentary §§ 115 & 116 at 122 (emphases

added). Thus, the commentary itself describes the lack of

consent as part of the “conduct” that constitutes sexual

abuse, which indicates that it requires a “knowing” mental

state. See Simonov, 358 Or at 539 (explaining that, unless

otherwise indicated for a particular offense, if an element is

a “conduct” element, it requires a “knowing” mental state);

Haltom, 366 Or at 798, 811-12 (same); see also 370 Or at 145

(Flynn, J., lead opinion) (explaining that “asking whether

the legislature understood a particular element to be ‘con-

duct’ often will provide the most direct path to understand-

ing whether the legislature intended to require a ‘knowing’

mental state for the element”).

The commentary goes on to explain that, under

the proposed code, the crime of assault requires a physical

injury and, therefore, a separate crime was needed to cover

unconsented sexual contact that does not result in a physi-

cal injury:

“Assault as defined in the draft requires the infliction

of actual physical injury. It is contemplated that in many

instances the conduct dealt with in the sexual abuse sec-

tions would not result in physical injury and, therefore,

would not be covered by the assault article. When such sex-

ual contacts do result in injury, the assault sections may

also apply.”

Commentary §§ 115 & 116 at 122. Thus, the essential char-

acter of assault is that it causes physical injury, and the

essential character of sexual abuse is that it is without con-

sent, which indicates that the nonconsent element requires

a “knowing” mental state. Simonov, 358 Or at 549; Haltom,

366 Or at 803, 823-24.

Two additional points are worth making. First, the

lead opinion is a dead letter. It addresses a legal question

that, because of a change in the law, does not matter for

future cases. As the lead opinion notes, the legislature has

recently amended ORS 163.325 to provide that, in prosecu-

tions for sexual abuse under ORS 163.415 or ORS 163.425

196 State v. Carlisle

“in which the victim’s lack of consent is not based on the inca-

pacity of the victim to consent because of the victim’s age, it

is an affirmative defense for the defendant to prove that,

at the time of the alleged offense, the defendant reasonably

believed that the victim consented to the sexual contact[.]”

ORS 163.325(4); Or Laws 2021, ch 410, § 1. Thus, the law on

which the lead opinion is based has been superseded.

Second, the lead opinion does not actually identify

the required mental state for the nonconsent element in a

case like this. The lead opinion intentionally and carefully

says only that the required mental state is not “knowing.” It

does not say what the required mental state is. It does not

say, for example, whether it is “reckless” or with “criminal

negligence.” And the lead opinion does not point to anything

to help individuals, lawyers, or courts to make that deter-

mination. In doing so, the lead opinion creates unnecessary

confusion. As this court’s reasoning in Simonov and Haltom

establishes, an element that describes the “essential charac-

ter” of a criminal act or omission is a “conduct” element, and

that, unless the legislature has otherwise indicated, a “con-

duct” element requires a “knowing” mental state. Simonov,

358 Or at 549; Haltom, 366 Or at 803, 823-24. Given that

the lead opinion has identified no reason for concluding that

the legislature intended any result other than the one that

would follow from application of that rule, this court should

apply it here, as should other courts in similar, future cases.

For these reasons—as well as those set out in Chief

Justice Walters’s dissent, in which I join—I respectfully

dissent.

Walters, C. J., and Nakamoto, S. J., join in this dissent.