State v. Wallace

122 December 12, 2024 No. 42

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

CHANCE NEAL WALLACE,

Respondent on Review.

(CC 17CR27381) (CA A170354) (SC S069898)

On review from the Court of Appeals.*

Argued and submitted June 22, 2023.

Jennifer S. Lloyd, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on

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

General, and Benjamin Gutman, Solicitor General.

Shawn Wiley, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

brief for respondent on review. Also on the briefs was Ernest

G. Lannet, Chief Defender, Criminal Appellate Section.

Before Flynn, Chief Justice, Duncan, Garrett, DeHoog,

Bushong, and Masih, Justices, and Walters, Senior Judge,

Justice pro tempore.*

DEHOOG, J.

The decision of the Court of Appeals is reversed in part

and affirmed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.

______________

* Appeal from Jackson County Circuit Court, Lorenzo A. Mejia, Judge. 321

Or App 704, 517 P3d 323 (2022).

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

Nakamoto, Senior Judge, Justice pro tempore, participated in oral argument, but

did not participate in the consideration or decision of this case.

Cite as 373 Or 122 (2024) 123

124 State v. Wallace

DeHOOG, J.

Oregon law prohibits sexual conduct with a person

who is “considered incapable of consenting” because the per-

son is “[i]ncapable of appraising the nature of the [person’s]

conduct[.]” ORS 163.315(1)(b); ORS 163.305(3).1 At the time

of defendant’s alleged sexual offenses, the applicable stat-

utes expressly included intellectual disability as a potential

cause of a person’s inability to consent. ORS 163.315(1)(b)

(listing that factor). In this case, defendant did not dispute

that the alleged victim had a qualifying intellectual disabil-

ity, but he moved for judgment of acquittal on the ground

that no reasonable person could find that, as a result of that

intellectual disability, she was “incapable of appraising” the

nature of her conduct, as the state had alleged.

The trial court denied defendant’s motion and a

jury convicted him of various first-degree sexual offenses.

Defendant appealed. Relying on this court’s prior interpreta-

tion of the relevant statutes in State v. Reed, 339 Or 239, 118

P3d 791 (2005), defendant argued that the state had failed to

affirmatively establish that the victim’s intellectual disabil-

ity had rendered her “incapable” of appraising the nature of

her conduct. A divided panel of the Court of Appeals agreed

with defendant and reversed, concluding that the evidence

produced at trial (1) “require[d]” the finding that the alleged

victim “J” had understood that defendant had “initiated

1

Under the Oregon Criminal Code, various sex crimes are elevated to first-

degree offenses if, among other things, the victim is “incapable of consent[.]” E.g.,

ORS 163.375 (defining first-degree rape). In 2017, when the underlying events in

this case took place, a person could be deemed “incapable of consent by reason of

mental defect,” see, e.g., ORS 163.375(1)(d) (2015) (listing that factor), if the per-

son was “incapable of appraising the nature of the [person’s] conduct.” See ORS

163.315(1)(b) (2015) (“A person is considered incapable of consenting to a sexual

act if the person is * * * [m]entally defective[.]”); ORS 163.305(3) (2015) (defin-

ing “mentally defective” as being rendered “incapable of appraising the nature

of the [person’s] conduct” by a “mental disease or defect”). Those statutes have

since been amended twice: once, in 2017, to replace the stigmatizing term “men-

tal disease or defect” with “qualifying mental disorder” throughout the Criminal

Code, Or Laws 2017, ch 364, §§ 2-17; 19-28, and a second time, in 2021, when the

legislature eliminated all related references to a person’s intellectual disability

but retained the provision that a person lacks capacity to consent if the person

is “incapable of appraising the nature of the [person’s] conduct[.]” Or Laws 2021,

ch 82, §§ 1-9. Unless otherwise indicated, references to the statutes in ORS chap-

ter 163 throughout this opinion are to the 2015 versions, which remained in effect

at the time of the charged crimes in 2017. We, however, use the terms “intellec-

tual disability” or “mental disability” in place of “mental disease or defect.”

Cite as 373 Or 122 (2024) 125

sexual activity” with her, and (2) was insufficient to support a

jury finding that, “because of her mental disability, J lacked

the ability to exercise judgment to consent to sexual conduct.”

State v. Wallace, 321 Or App 704, 718, 517 P3d 323 (2022).

The state petitioned for review, challenging the

Court of Appeals’ application of Reed and the statutes at issue.

In the state’s view, the Court of Appeals essentially under-

stood that a person is capable of “appraising the nature of the

person’s conduct” if the person is merely aware that another

person has initiated conduct that is “sexual in nature.” That

flawed understanding, the state contends, led to the errone-

ous determination that, on the record produced at trial, no

rational trier of fact could find that J had been incapable of

consenting to the conduct underlying defendant’s convictions.

We allowed review to consider those issues, and we now con-

clude that the Court of Appeals erred. As we explain below,

we conclude that the evidence presented at trial was sufficient

to permit a reasonable trier of fact to find, within the mean-

ing of the applicable statutes, that the victim lacked capacity

to appraise the nature of her conduct and, as a result, was

incapable of consent. Thus, the trial court did not err when it

denied defendant’s motion for judgment of acquittal on Counts

2 through 5,2 and we, therefore, reverse the decision of the

Court of Appeals and affirm the judgment of the trial court as

to counts 2 and 4, and remand for further proceedings.3

I. BACKGROUND

Because the issue on review arises from the trial

court’s denial of defendant’s motion for judgment of acquit-

tal, we view the evidence in the light most favorable to the

2

Count 1 was charged under a “forcible compulsion” theory, ORS 163.375(1)

(a). Although, like Counts 3 through 5, Count 2 was charged under an “incapable

of consent” theory, the trial court merged the guilty verdict on Count 2 with the

guilty verdict on Count 1. The Court of Appeals affirmed defendant’s conviction

on Count 1, and defendant does not renew his challenge to that conviction on

review. We therefore do not disturb that aspect of the Court of Appeals’ decision.

3

In the Court of Appeals, defendant unsuccessfully raised various other

issues that are not at issue on review. However, because we now conclude that the

trial court properly denied defendant’s motion for judgment of acquittal on Count

5, we must also address an issue that the Court of Appeals found unnecessary to

decide in light of its decision regarding defendant’s motion for judgment of acquit-

tal. As to that count, we reverse and remand defendant’s judgment of conviction

because it was the result of a nonunanimous guilty verdict. State v. Flores Ramos,

367 Or 292, 297, 478 P3d 515 (2020).

126 State v. Wallace

state to determine whether the evidence produced at trial

was sufficient to allow a rational trier of fact, drawing rea-

sonable inferences, to find the elements of the alleged crimes

beyond a reasonable doubt. State v. Hedgpeth, 365 Or 724,

730, 452 P3d 948 (2019) (citing State v. Clemente-Perez, 357

Or 745, 756, 762, 359 P3d 232 (2015)). We first describe the

evidence in accordance with that standard, then provide

additional background regarding the underlying statutes

and the trial and appellate court proceedings leading to our

review.

A. Trial Evidence

At trial, the state presented the testimony of vari-

ous witnesses, including that of the victim, J, as well as a

recording of J’s forensic interview. J, who was 26 years old

at the time of the charged offenses, has an intellectual dis-

ability. J’s IQ is 62, due in part to fetal alcohol syndrome and

in part to scar tissue on her brain resulting from an illness

that she suffered during infancy. J has been diagnosed with

“mild mental retardation.”4 J manages her own personal

care, but she cannot live alone, shop for herself, manage her

own transportation or finances, or socialize without sup-

port. She has poor short-term memory, can only go places

if accompanied by a “trusted individual,” and becomes over-

whelmed and “shut[s] down” if tasks are not explained to her

in sufficiently straightforward terms. Additionally, J tends

to view the motivations of others in an optimistic light, which

puts her at a heightened risk of being taken advantage of.

J lives with her grandmother, Boothe, who is her

legal guardian and has cared for J full time since she was

three months old. J works a part-time retail job with the

help of a job coach provided by a nonprofit organization. She

takes a prearranged taxi to and from work because she can-

not negotiate the bus system. J’s work and transportation

4

Like the term “mental defect,” the terms “mentally retarded” and “men-

tal retardation” have been recognized as stigmatizing and otherwise harmful to

individuals with intellectual disabilities. See, e.g., Pub L 111-256, §§ 1-4, 124

Stat 2643 (2010) (enacting “Rosa’s Law”; changing references in federal law to

mental retardation and individuals who are mentally retarded to “intellectual

disability” and “individuals with intellectual disabilities.”). We use the dated ter-

minology in this opinion only to the extent necessary to discuss the manner in

which J’s intellectual disability was described in the trial court and other discus-

sions of similar conditions in the relevant case law.

Cite as 373 Or 122 (2024) 127

arrangements were established for J by her state-provided

intellectual disability case manager, who coordinates com-

munity integration, socialization, and safety support ser-

vices for J. At the time of trial, J had been working for two

years but had, over that time, completed only two work

shifts without any assistance.

According to J’s case manager, she is a “concrete

thinker” who thinks in “very black and white” terms. That

is, J has difficulty with “abstract thought” and, in conversa-

tion, tends to “fixate” on tangible things without grasping

any broader significance of what is being said.

Before entering the relationship that ultimately led

to defendant’s charges in this case, J had been curious about

sex and had learned a little about sexual conduct by watch-

ing movies. However, J’s “sex education” had been limited

to her mother telling her that sex was a man and woman

“making love” and her grandmother telling her to “wait

until she was married before having sex.”

Defendant met J at the church that she attended

with her grandmother. Defendant started dating J a year

after the two became acquainted. Defendant was generally

aware of J’s intellectual difficulties, and J’s grandmother

had specifically told defendant that J had significant “navi-

gation” issues.5

When the two of them began dating, defendant was 50

years old, but he told J that he was 30. Defendant attempted,

with mixed results, to control aspects of J’s life. For example,

defendant initially asked that J not tell her family or pastors

about their relationship, and she largely complied with that

request. J resisted, however, when defendant expressed pref-

erences as to how she dressed or kept her hair, asked her for

money, or asked that she refrain from using coloring books

made for adults, an activity that she enjoyed.

During his relationship with J, defendant initi-

ated sexual activity with her on a number of occasions. In

one incident, defendant asked J to take off her clothes and

5

As an example of J’s difficulties, grandmother shared with defendant that,

if they were at the movies and J got up to use the restroom, she would not be able

to find her way back to her seat on her own.

128 State v. Wallace

helped her to get undressed. J thought that defendant’s

request was strange, but, because she trusted defendant,

she let him remove her clothing. J testified that defendant

“took some pictures of [her] personal areas,” which she later

clarified were her breasts and her “virginity area,” the term

she used to describe her vagina. Defendant told J that he

took those pictures because “he wanted to look at [them] on

his phone.” When asked whether defendant’s explanation

had made sense to her, J testified, “Not really. It seemed,

seemed really uncomfortable and sickening[.]” J added that

it seemed “strange that he would want to take pictures of me

naked.”

Defendant also put his face in J’s “virginity area,”

which did not “feel normal” to her and she did not like. J said

that it felt “scary” and that she had tried to back away, but

that defendant had pulled her back towards him by her legs.

She further testified that she could not remember whether

she had said anything to defendant about it, but she said, “I

remember I didn’t, I didn’t like it, and it didn’t feel right. I

did not felt [sic] right. It did not felt [sic] normal at all.” J also

testified that defendant had asked her to touch his testicles.

J said that “it felt uncomfortable,” but he had wanted her to

do it because, “to him, it felt good” and “was like a massage.”

On another occasion, J recounted, defendant had

put “his dick in [her] mouth.” J said that defendant had

“got[ten that] idea” from a video of a woman having oral sex

with a man that defendant had watched on his phone. J tes-

tified that it “actually made me felt [sic] like I was going to

just gag, either gag or vomit,” and that she “felt disgusted

like this does not feel right and this does not feel normal.”

J also described an incident in which, she said,

defendant had “pinned” her down and put his penis in

her “butt,” which had “hurt like hell.”6 She screamed, but

defendant put his hand over her mouth so that his room-

mate and neighbors would not hear her. Defendant stopped

assaulting J when she kicked him hard enough to get him to

back away. J described that incident—as well as others—as

6

J’s grandmother later determined that J was referring to defendant pene-

trating her vagina from behind, after she had drawn J a picture of the vagina and

the anus to help J understand the difference.

Cite as 373 Or 122 (2024) 129

defendant “doing foreplay,” which was a term that defen-

dant had repeatedly used but that J did not understand.

She said that defendant had also used the word “foreplay” to

describe other acts that she did not like or understand, such

as having her massage his testicles. Even though J herself

described that “creepy and embarrassing” conduct as “fore-

play,” she “didn’t really know what that meant.”

At trial, J explained her understanding that “sex”

means “male and female just making love,” but said that

she had not heard the term “sex education.” When asked

whether she had attended a sex education class in school,

J answered, “I don’t know.” And when asked what “making

love” means, J said that it was “[j]ust two people that truly

love each other and respect each other,” and when they “do

things they have in common * * * they go out to dates, they

go out to movies.” J understood “virginity” to “sort of” mean

that “the person has never experienced sex before another

virgin.” J had previously heard the word “rape” and under-

stood that “it means when the victim says no, it means no,”

but said that, growing up, she “didn’t have a whole lot of

learning process and what it really meant.” She did not

know the meanings of “coerce,” “ejaculate,” “sperm,” “ovula-

tion,” “fallopian tube,” or, as discussed, “foreplay.” She testi-

fied that “uterus” meant “where you urinate” and that her

“private part” was her “virginity area.” Finally, when asked

whether she knew “how to make a baby,” J answered that,

“if somebody truly loves each other, and have sex, then yeah

that’s—eventually the woman will become pregnant.”

J’s testimony similarly reflected confusion with

respect to sexual decision making. For example, when

defense counsel asked J whether she thought that she

should be able to decide for herself whether to have sex with

someone, she answered, “Yes, you know, if I’m ready and if I

was married.” But when asked whether the church says that

people should not have sex before marriage, she gave a more

direct response, stating that it “seems like it’s the Christian

way.”

Throughout her testimony, J appeared to have dif-

ficulty tracking timelines, such as her age and how long

she and defendant had dated, as well as how many times

130 State v. Wallace

incidents like those she described had occurred. Further,

from her testimony, the jury could reasonably have inferred

that, although J responded to questions regarding her

familiarity with sexual behavior and various reproductive

processes, she had difficulty understanding some of the

questions and only a limited understanding of the concepts

underlying them. Moreover, as the Court of Appeals noted,

the jury could readily infer that J’s intellectual limitations

would be “obvious” to another person after only a brief inter-

action. Wallace, 321 Or App at 710. Finally, that evidence

could support inferences both that defendant knew about

those limitations and that J’s intellectual disability had ren-

dered her more vulnerable to manipulation than a person

without such a disability.

B. Relevant Statutes

The state charged defendant with various sexual

offenses that he had allegedly committed against J in early

2017. A jury subsequently convicted defendant of two counts

of first-degree rape, ORS 163.375(1)(a) and (d) (Counts 1 and

2, which merged into a single conviction on Count 1); two

counts of first-degree sodomy, ORS 163.405(1)(d) (Counts

3 and 4); and one count of first-degree sexual abuse, ORS

163.427(1)(a)(C) (Count 5).

The state prosecuted Counts 2 through 5 under

the theory that J had been “incapable of consent by rea-

son of mental defect.” At the time of the charged conduct,

the statutes defining the specific offenses—ORS 163.375

(first-degree rape), ORS 163.405 (first-degree sodomy),

and ORS 163.427 (first-degree sexual abuse)—all provided

that the conduct that they prohibited constituted a first-

degree offense if the “victim [was] incapable of consent by

reason of mental defect, mental incapacitation or physical

helplessness[.]”

ORS 163.315 and ORS 163.305 are related statutes.

They provide, first, when a person is deemed incapable of

consenting to a sexual act, ORS 163.315(1)(b) (a person is

incapable of consenting to a sexual act when, among other

circumstances, the person is “[m]entally defective”); and,

second, what “[m]entally defective” means, ORS 163.305(3)

Cite as 373 Or 122 (2024) 131

(“ ‘Mentally defective’ means that a person suffers from a

mental disease or defect that renders the person incapable

of appraising the nature of the conduct of the person.”). The

text of those statutes is central to the parties’ dispute on

review.

C. Defendant’s Motion for Judgment of Acquittal

At the conclusion of the state’s case-in-chief, defen-

dant moved for judgment of acquittal on Counts 2 through

5, citing Reed, 339 Or at 239. He argued that, although it

was “clear” that J had a limited vocabulary with which to

describe sexual conduct, she nevertheless had a sufficient

understanding of the conduct at issue to appraise its nature,

because she understood both that the conduct occurred in a

sexual context and that such conduct had potential short-

and long-term consequences. Thus, defendant contended,

the evidence was insufficient as a matter of law to establish

that J had been incapable of consent.

The trial court denied the motion, stating that it

found the state’s evidence to be “more compelling” than it

had anticipated when it heard a pretrial motion raising the

same arguments. Pointing to the overall circumstances, J’s

forensic interview, her related testimony, and defendant’s

own, inculpatory statements, the trial court concluded that

the state had produced sufficient evidence to establish,

under ORS 163.305(3), that J had been incapable of apprais-

ing the nature of her conduct.

D. The Court of Appeals’ Opinions

Defendant appealed, assigning error to the trial

court’s denial of his motion for judgment of acquittal. In

a split decision, a panel of the Court of Appeals held that

this court’s opinion in Reed requires “more than generalized

proof of mental disability,” and instead requires proof that

the victim lacked the “ ‘particularized ability’ to understand

the nature of the conduct that defendant initiated, i.e., to

understand that it was sexual, or to exercise judgment to

make the choice to consent to it.” Wallace, 321 Or App at 715-

16 (citing State v. Tilly, 269 Or App 665, 681, 346 P3d 567,

rev den, 357 Or 640 (2015)).

132 State v. Wallace

Applying its understanding of Reed, the Court of

Appeals majority reversed defendant’s convictions, conclud-

ing that (1) the record “require[d] the finding that J under-

stood that defendant had initiated sexual activity with her,”

and (2) the evidence was insufficient to support a finding

that, “because of her mental disability, J lacked the ability

to exercise judgment to consent to sexual conduct.” Wallace,

321 Or App at 718. The majority acknowledged that, due

to defendant’s “manipulations and misrepresentations,” J

may not have even understood that the activity that defen-

dant had initiated with her was “sex” and not “foreplay”; it

emphasized, however, that there was no evidence that the

victim’s intellectual disability prevented her from “under-

standing the sexual nature of [defendant’s] conduct.” Id. at

717-18.

Judge Mooney concurred in part and dissented in

part, reasoning that a person’s awareness of sexual behav-

iors or even an interest in learning about sex does not com-

pel a jury to find that the person has “sufficiently-developed

adaptive skills or the judgment necessary to negotiate the

complex dynamics of a sexual relationship[.]” Id. at 720

(Mooney, P.J., concurring in part and dissenting in part).

And here, given the “evidence of J’s compromised intellec-

tual capacity, mild mental retardation diagnosis,” and “lim-

ited adaptive skills,” Judge Mooney would have held that

the jury reasonably could have found that, “because of her

mental disability, [J] was not able to consent to sex with

defendant.” Id.

We allowed the state’s petition for review.

II. ANALYSIS

Here the fundamental dispute is whether, viewing

the evidence in the light most favorable to the state, a rea-

sonable juror could find that J’s intellectual disability ren-

dered her “incapable of appraising the nature of [her own]

conduct.” See ORS 163.305(3) (defining “[m]entally defec-

tive”); ORS 163.315(1)(b) (providing that a person is “incapa-

ble of consenting to a sexual act” if the person is “[m]entally

defective”); see also Reed, 339 Or at 244 (explaining that, for

purposes of ORS 163.305(3), “the person” in “conduct of the

Cite as 373 Or 122 (2024) 133

person” refers to the alleged victim). When, as here, a trial

court has denied a motion for judgment of acquittal based

upon a disputed interpretation of the statute defining the

relevant offense, we must first determine whether that court

correctly construed the statute, a ruling that we review for

errors of law. State v. Haley, 371 Or 108, 112, 531 P3d 142

(2023). Then, based upon our interpretation of the statute,

we must determine whether the evidence was sufficient to

establish every element of the charged offense. We proceed

with those inquiries in turn.

The first inquiry presents a question of statutory

interpretation, which we address by applying the well-

established framework articulated 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).

In applying that framework, we seek to determine the leg-

islature’s intended meaning by examining the statutory

text in context, taking into account any legislative history

that we find helpful. 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 legislature if possible.”). When

interpreting a statute, we also consider any earlier opinions

in which we have construed the statute itself, its statutory

predecessors, or related statutes. See Sherman v. Dept. of

Human Services, 368 Or 403, 411-12, 492 P3d 31 (2021) (con-

sidering case law at first level of Gaines analysis); Polacek

and Polacek, 349 Or 278, 284, 243 P3d 1190 (2010) (rele-

vant statutory context includes other provisions of same or

related statutes, the preexisting statutory framework, and

prior opinions of this court interpreting the pertinent text).

Like the Court of Appeals and both parties, we find

considerable guidance in our construction of the relevant

statutes in Reed. However, we understand that decision and

its significance here somewhat differently than either party.

Moreover, based on our understanding of Reed and the stat-

utes at issue here, we conclude that the Court of Appeals

erred in holding that the evidence in this case was insuf-

ficient to raise a jury question regarding J’s ability to con-

sent—that is, whether J was capable or incapable of apprais-

ing the nature of her conduct sufficiently to consent to the

134 State v. Wallace

sexual conduct at issue. We therefore conclude that the trial

court did not err in denying defendant’s motion for judgment

of acquittal on that ground.

A. State v. Reed

We agree, as the Court of Appeals and the parties

have recognized, that this court’s opinion in Reed provides

the proper starting point for our analysis. See Sherman, 368

Or at 411-12; State v. Toevs, 327 Or 525, 532, 964 P2d 1007

(1998) (“Case law interpreting the statute at issue * * * is con-

sidered at our first level of analysis.”). Although the parties

both expressly rely on Reed, they advance different argu-

ments as to its application. Thus, we begin our assessment of

ORS 163.305(3) and the meaning of “incapable of appraising

the nature of [the person’s] conduct” by reviewing Reed.

In Reed, this court considered whether the trial

court had erred in denying a motion for judgment of acquit-

tal as to various sexual offenses that the defendant had

allegedly committed against his adult daughter, who, like

J in this case, had been diagnosed with “mild mental retar-

dation.” 339 Or at 241-42, 246. The analysis in Reed turned

on the intended meaning of “incapable of consent,” which,

at the time—as with defendant’s charges—could be estab-

lished by proving that the victim was “mentally defective.”

339 Or at 243. In turn, “mentally defective” was defined in

the applicable version of ORS 163.305(3) as “suffer[ing] from

a mental disease or defect that renders the person incapable

of appraising the nature of the conduct of the person.”

In evaluating that provision, this court identified

the “key words” of the statute as “incapable,” “appraising,”

“nature,” and “conduct.” Reed, 399 Or at 244. Because the

legislature had not provided definitions for those terms, this

court looked to “common meanings” of the text, id. (citing

PGE, 317 Or at 611), which included the following:

• “ ‘Incapable’ means ‘lacking capacity, ability, * * * qual-

ification for the purpose or end in view[;] * * * lacking

legal qualification or power esp. because of some fun-

damental legal disqualification[;] lacking the personal

ability, * * * or understanding required in some legal

matter[.]’ ”

Cite as 373 Or 122 (2024) 135

• “ ‘Appraise’ means ‘to judge and analyze the worth, sig-

nificance or status of[.]’ ”

• “ ‘Nature’ means ‘the essential character or constitution

of something[.]’ ”

• “ ‘Conduct’ means ‘a mode or standard of personal

behavior esp. as based on moral principles[.]’ ”

Reed, 339 Or at 244 (quoting Webster’s Third New Int’l

Dictionary 1141, 105, 1507, 473 (unabridged ed 2002) (brack-

ets and omissions in Reed)).

Applying those definitions, this court concluded that

the applicable version of ORS 163.305(3) referred to a “men-

tal defect that prevents one from appraising the nature of

one’s own conduct.” Id. Further, “[t]he ‘appraisal’ must con-

stitute an exercise of judgment and the making of choices

based on an understanding of the nature of one’s own con-

duct.” Id. And, in the circumstances of that case—which to a

large extent mirrored the circumstances present here—”we

view[ed] that standard in the context of interactions with

other persons, such as offers and proposals from other per-

sons to engage in certain kinds of conduct.” Id.

We acknowledged in Reed that “the statutory defini-

tion of mentally defective does not support the notion that a

person who has a mental disability is necessarily incapable

of consenting to sexual relations under all circumstances.”

Id. Rather, we explained, “a person who can understand

that another person has initiated some kind of sexual activ-

ity with that person may be capable of appraising the nature

of the conduct and, thus, may be capable of consenting to a

sexual act * * *[.]” Id. (emphases added). Notably, however,

we did not suggest that a person who understands that

another person has initiated sexual activity would necessar-

ily be capable of appraising that conduct so as to preclude a

finding that the person is incapable of consenting to it.

Ultimately, this court’s decision in Reed that the

trial court had erred did not turn on the precise mean-

ing of “incapable of appraising the nature of the conduct

of the person.” Rather, because the applicable version of

ORS 163.307(3) required that the person’s incapacity be the

product of the person’s mental condition, see Reed, 339 Or

136 State v. Wallace

at 245 (noting state’s burden of establishing by affirmative

evidence that the alleged victim’s intellectual disability had

“rendered her incapable of consent”), and because the evi-

dence at trial failed to make that showing, this court con-

cluded that the state had not established that “necessary

link,” id. at 246. It was on that basis that we reversed the

trial court’s ruling. Id. at 247.

That caveat notwithstanding, we understand Reed

to have reached the following conclusions. First, to obtain

a conviction for a first-degree sex offense on the theory

that the alleged victim was incapable of consenting to the

charged conduct, the state must produce sufficient evidence

for a rational juror to find that the victim was incapable of

either (1) understanding the sexual nature of that conduct;

or (2) exercising judgment in choosing whether to partici-

pate in the conduct based on that understanding. Second,

for purposes of the statutes in effect at the time of Reed and

the charged acts in this case, the state must also prove that

the alleged victim has a qualifying intellectual disability.

And third, the evidence must support the finding that the

alleged victim’s incapacity either to understand the nature

of the conduct or to exercise judgment and choose whether

to engage in that conduct resulted from that disability.

B. The Parties’ Positions on Review

On review, neither party contends that Reed was

wrongly decided and should be overruled. Rather, the par-

ties disagree about the extent to which Reed’s interpretation

of the statutory provisions resolves the question presented

in this case. The state notes that, under Reed, capability to

consent to sexual conduct requires more than a mere under-

standing that the conduct is sexual in character. See 339

Or at 244 (so stating). The state emphasizes that capabil-

ity to consent also requires the ability to exercise judgment

in choosing whether to consent. See id. (“The ‘appraisal’

must constitute an exercise of judgment and the making of

choices based on an understanding of the nature of one’s

own conduct.”) And, in the state’s view, the required ability

to exercise judgment means that the person understands

the societal and moral implications of the conduct at issue,

or, as the state characterizes it, its “essential character.”

Cite as 373 Or 122 (2024) 137

The state argues that, unless a person understands the

“essential character” of conduct at the time it occurs, they

are incapable of consenting to it.

Defendant disagrees with the state’s understand-

ing of Reed. He does not dispute that, under the reasoning

of that opinion, capability of appraising sexual conduct “can

involve an understanding of the potential personal or social

consequences of such conduct, such as pregnancy or social

disapproval of the sexual relationship.” See id. at 245 (not-

ing the alleged victim’s apparent “capacity to consent and to

understand that having sexual relations with [the] defen-

dant was wrong”). Defendant rejects, however, any sugges-

tion that, to be capable of consent, one must be “capable of

understanding all of the possible moral, social, and personal

consequences of a decision to engage in sexual conduct[.]”

Defendant also does not dispute that the relevant time for

evaluating whether an alleged victim is capable of consent-

ing is the time of the sexual conduct. But, he contends, by

focusing on an alleged victim’s contemporaneous under-

standing of the specific sexual conduct at issue (as well as

of the broader moral implications of that conduct), the state

misunderstands what it means to be “capable.” Defendant

understands the state’s argument to mean that a person

could lack the capability to consent at one time but then

acquire that capability at a later time by coming to under-

stand the “essential character” of their conduct through

education, experience, or otherwise. In defendant’s opinion,

the state’s argument conflates understanding-in-fact with

capability of understanding, only the latter of which, he

argues, is necessary for a person to be capable of consent.

In our view, Reed does not fully answer the stat-

utory interpretation questions presented in this case. We

agree that, under Reed, a person who understands that con-

duct is sexual in character may nonetheless be incapable

of consenting to it. That follows from Reed’s determination

that, to have that capability, the person must also be able to

exercise judgment in choosing whether to consent. 339 Or

at 244. But Reed says little about what it means to be able

to exercise judgment, including whether and to what extent

an ability to understand the moral consequences of sexual

138 State v. Wallace

conduct is essential to appraising the nature of that con-

duct. Similarly, Reed did not specifically consider whether,

to prove that an alleged victim was incapable of consenting

to sexual conduct, the state must show that the person can

never acquire the knowledge or skills necessary to appraise

the nature of that conduct, or only that the person did not

have those tools at the time of the alleged offense. Thus, we

continue our examination of the relevant statutes with the

parties’ respective arguments in mind.

C. “Incapable of Consent” Amplified

As explained above, at the time of defendant’s

charged conduct, various sex crimes were elevated to first-

degree offenses if the victim was “incapable of consent by

reason of a mental defect.” Although “mental defect” had

no statutory definition, its role in the statutory scheme was

made clear by two other statutes, ORS 163.315(1)(b) and

ORS 163.305(3).7 First, ORS 163.315(1) provided in relevant

part that:

“(1) A person is considered incapable of consenting to a

sexual act if the person is:

“* * * * *

“(b) Mentally defective * * *[.]”

In turn, ORS 163.305(3) defined “[m]entally defective” as

“suffer[ing] from a mental disease or defect that renders the

person incapable of appraising the nature of the conduct of

the person.” Together, those statutes provided that “[a] per-

son is considered incapable of consenting to a sexual act”

if the person “suffers from a mental disease or defect that

renders the person incapable of appraising the nature of the

conduct of the person.”

Defendant does not dispute that J had a qualifying

intellectual disability under the law then in effect. Thus, as in

Reed, we focus our analysis on other aspects of ORS 163.305(3),

7

Although, as noted, the relevant substantive statutes in effect at the time

of the alleged offenses referenced “mental defect[s],” which is not defined, it is

undisputed that the meaning and application of that term are provided by ORS

163.315(1) (stating that a person is “incapable of consent” if the person is “men-

tally defective”), and ORS 163.305(3) (defining “mentally defective”). We therefore

focus on those two provisions.

Cite as 373 Or 122 (2024) 139

beginning with the terms “incapable” and “apprais[e].”

Starting with “apprais[e],” this court concluded in Reed that,

when referring to whether a person is capable of appraising

their conduct, the “apprais[al]” “must constitute an exercise

of judgment and the making of choices based on an under-

standing of the nature of one’s own conduct.” Reed, 339 Or at

244. The exercise-of-judgment component reflected the defini-

tion of “appraise.” See Webster’s Third New Int’l Dictionary 105

(unabridged ed 2002) (defining “[a]ppraise” as “to judge and

analyze the worth, significance or status of”). And, although

none of the terms or definitions that this court considered in

Reed expressly referred to “the making of choices,” the stat-

utory context in which “apprais[e]” appears relates to one’s

capacity to give consent—that is, capacity to choose whether

to allow or engage in sexual conduct. See Reed, 339 Or at 247

(describing inquiry as whether the alleged victim had the

“ability to make choices about having sexual relations with

others”). Thus, the relevant exercise of judgment relates to

that choice—the decision whether to consent to sexual con-

duct with another—and the statute’s focus is on the effect that

the person’s intellectual disability has on that decision.

In that context, the term “incapable” likewise focuses

on the person’s decision whether to consent to specific sexual

conduct, which would seem to be the product of the person’s

abilities at the time they give consent, not abilities that the

person may or may not be able to acquire. See ORS 163.315(1)

(defining when a person is “incapable of consenting to a sex-

ual act” (emphasis added)); ORS 163.305(3) (referring to effect

of a person’s mental disability on “the person[‘s capability] of

appraising the nature of the conduct of the person” (empha-

sis added)). That understanding of “incapable” is consistent

with our examination of the term in Reed. There, we noted

that the ordinary meanings of “incapable” include “ ‘lacking

capacity, ability * * * [or] qualification for the purpose or end

in view,’ ” as well as “ ‘lacking the * * * understanding required

in some legal matter[.]’ ” Reed, 339 Or at 244 (citing Webster’s

at 1141). And by equating “incapable” with a lack of “capac-

ity,” “ability,” or “understanding,” that definition supports the

idea that a person is “incapable” of giving consent if the per-

son lacks the intellectual tools needed to exercise judgment

with regard to that decision—”the purpose or end in view,”

140 State v. Wallace

Webster’s at 1141—and not only if the person is incapable of

ever acquiring those tools.

Indeed, our decision in Reed suggested as much by

stating that, to establish that a person is incapable of consent

by reason of an intellectual disability, the state must prove

that the person’s disability “prevents [them] from appraising

the nature of [their] own conduct.” 339 Or at 244. There is

a substantial difference between an intellectual disability

that prevents a person from making an appraisal, on the one

hand, and an intellectual disability that prevents a person

from acquiring the ability to appraise, on the other. Thus,

although it appears that a person who is presently incapable

of giving consent might at some later time be found to have

that capability, see Webster’s at 3 (defining “ability,” in part,

as an “acquired proficiency”), the statute’s focus seems to be

whether a person presently possesses the requisite degree

of understanding to make an informed choice. See ORS

163.305(3) (relevant inquiry is whether the person is “inca-

pable of appraising the nature of the conduct of the person”).

That understanding—that to be capable of consent,

one must have the present ability to appraise, not merely the

potential to acquire that ability—also makes sense, given the

broader context of consent with regard to sexual offenses.

Common sense alone tells us that, in precluding certain

individuals from consenting to sexual conduct, the legisla-

ture sought to protect persons whose intellectual disabilities

might otherwise render them vulnerable to sexually preda-

tory behavior. In that regard, it would make no difference

that a person presently incapable of giving consent might

acquire that capability at some later time. That is, a person’s

potential to someday acquire the requisite ability would seem

to have little if any bearing on the person’s current vulnera-

bility to predatory sexual behavior. Thus, to the extent that

defendant contends that a person is not incapable of consent

if their intellectual disability does not preclude them from

developing the ability to appraise their conduct the text and

context of ORS 163.315(1)(b) strongly suggest otherwise.

Turning to what a person must be capable of

appraising to give valid consent—the “nature” of the per-

son’s conduct—we noted in Reed that “nature” means “ ‘the

Cite as 373 Or 122 (2024) 141

essential character or constitution of something.’ ” 339 Or

at 244 (quoting Webster’s at 1507). The majority opinion in

Reed did not elaborate on that definition, such as by further

explaining what constitutes the “essential character” of con-

duct, so it is not clear whether the majority viewed the “essen-

tial character” of sexual activity to be anything more than

that—sexual.8 Nonetheless, the state urges us to conclude

that, under Reed, “essential character” means more than

merely sexual. Concerned that the Court of Appeals’ opin-

ion unduly focused on whether J understood that defendant

had initiated sexual activity with her, the state advances a

more robust understanding of Reed, one that expands upon

the meaning of “the nature of the conduct.” Emphasizing

Reed’s observation that the nature of something is defined

as its “essential character,” the state offers its view of what

that “essential character” is for purposes of ORS 163.305(3).

In the state’s view, the essential character of a sexual act is

more than its “sexual” quality. Rather, to understand the

“essential character” of a sexual act, the state contends, one

must recognize the “significance” of engaging in it, which

the state argues includes two things: (1) the potential per-

sonal, social, and moral consequences of engaging in the

conduct; and (2) an awareness that the person has the right

to refuse to engage in that conduct.9

As noted, defendant agrees that a person’s aware-

ness that sexual conduct has potential personal and social

consequences may play some role in whether the person is

capable of appraising its nature. He disagrees, however,

that “moral” consequences are an appropriate consideration.

And, to the extent that the state may contend that a person

8

As noted earlier, the majority in Reed did state that “a person who can

understand that another person has initiated some kind of sexual activity with

that person may be capable of appraising the nature of the conduct,” but it did

not explicitly equate the “nature” of conduct with its characterization of “sexual

activity.” 339 Or at 244.

9

The state draws its understanding in part by relying on the dissenting opin-

ion in Reed. In that opinion, the dissent agreed with the majority’s interpretation

of the statutory text but disagreed as to its application. 339 Or at 249 (Kistler,

J., dissenting). The dissent itself did not explicitly expand upon the meaning of

“nature” or “essential character.” Rather, based on the majority’s observation

that “appraise” means “to judge and analyze the worth, significance, or status

of,” the dissent characterized the majority’s standard as asking “whether the

person is capable of assessing the personal and social consequences of his or her

decision to engage in that activity.” Id. (internal quotation marks omitted).

142 State v. Wallace

must understand all personal and social consequences of a

sexual activity, defendant disagrees with that as well.

As an initial matter, we agree that, when used in

conjunction with “apprais[e]” in ORS 163.305(3), the “nature”

of a sexual act is most likely something more than merely

its sexual character. As we have explained, ORS 163.305(3)

requires an ability to appraise conduct, which, as the court

held in Reed, in turn requires an ability to exercise judg-

ment regarding that conduct, not simply the ability to know

that the conduct is sexual. Thus, we agree with the state

that the ability to recognize that another person has initi-

ated conduct that is “sexual” is not the same as being capa-

ble of appraising that conduct. That is, the mere awareness

that conduct is sexual does not enable a person to judge its

“significance.” See Reed, 339 Or at 244 (defining “appraise”).

That preliminary conclusion does not resolve the

parties’ larger dispute—whether, for a person to be capa-

ble of consenting to conduct within the meaning of ORS

163.315(1), it is necessary that they be able to recognize the

“moral” implications of that conduct. Although the majority

in Reed arguably touched on such implications when review-

ing the sufficiency of the evidence in that case, see id. at

245 (noting alleged victim’s recognition that “having sexual

relations with defendant was wrong”), that opinion does not

indicate whether a person’s understanding of those implica-

tions plays a necessary role in assessing whether the person

is capable of consent. Because the text and context of ORS

163.315(1) do not provide much guidance regarding the leg-

islature’s intent in that regard, we turn to the legislative

history for further clues about the intended meaning of the

statutory phrase.

D. Legislative History

The legislative history of ORS 163.315 and ORS

163.305 provides a little guidance. Those provisions were

originally enacted as part of the 1971 revision of the

Criminal Code as proposed by the Criminal Law Revision

Commission (Commission). Or Laws 1971, ch 743, §§ 104,

105. This court has long recognized that the records of the

Commission and its subcommittees “provide a rich source

Cite as 373 Or 122 (2024) 143

for determination of the drafters’ intent.” State v. Garcia,

288 Or 413, 416, 605 P2d 671 (1980). When considering

those records, we generally “assume in the absence of other

legislative history that the Legislative Assembly accepted

the Commission’s explanations.” State v. Woodley, 306 Or

458, 462, 760 P2d 884 (1988); see State v. Henderson, 366

Or 1, 10, 455 P3d 503 (2019) (stating the same); see also

State v. Carpenter, 365 Or 488, 497 n 4, 446 P3d 1273 (2019)

(“When evaluating statutes developed by the Criminal Law

Revision Commission, we look to both the commentary and

the discussions that preceded the adoption of the final draft

as legislative history for the resulting laws.”).

Although it is not directly at issue in this case, we

note that the definition of “mentally defective” was first pro-

posed at a May 1969 subcommittee meeting without substan-

tive discussion. Minutes, Criminal Law Revision Commission,

Subcommittee No. 2, May 3, 1969, 2; Criminal Law Revision

Commission, Article 13, Preliminary Draft No. 1, Jan 1969.

That definition also was not discussed at subsequent full

Commission and subcommittee meetings, and it remained

essentially unchanged at the time of its approval by the

full Commission in January 1970. Minutes, Criminal Law

Revision Commission, Jan 9, 1970, 5; Criminal Law Revision

Commission, Article 13, Preliminary Draft No. 3, Dec 1969.

The commentary accompanying the definition of

“mentally defective” explains that it states in the “language

of contemporary psychiatry when a person is, by reason of

mental disease or defect, incapable of consenting to a sexual

act.” Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Final Draft and Report,

§ 104, 104-05 (July 1970) (citing Michigan Revised Criminal

Code § 2301 (e)). According to the commentary, that defini-

tion, along with definitions for “mentally incapacitated” and

“physically helpless,” were taken from the Michigan Revised

Criminal Code. Id.

The commentary further explains that, although

the terms “mentally defective,” “mentally incapacitated,”

and “physically helpless” are “new to the statutory phrase-

ology of Oregon, the concepts which they describe are not

foreign to factors which the law has long recognized as

144 State v. Wallace

affecting one’s capacity to consent.” Id. at 106-07. It notes

that, as early as 1899, Oregon recognized the “inability of

[persons with intellectual disabilities] to consent.” Id. at 107

(citing State v. Lee, 33 Or 506, 509, 56 P 415 (1899)).

“The rule was early established * * * that the seeming

acquiescence of a [person with an intellectual disability] or

of very tender years to an act of sexual intercourse afforded

no defense to an action of rape, because such [a person],

being ignorant of the nature of the act, was incapable of

yielding consent, from a defect of understanding.”

Id. (emphasis in original).

The commentary goes on to explain that, under the

draft, if that “defect of understanding” renders a person

incapable of appraising the nature of that person’s conduct,

they are “in law unable to effectively consent.” Id. Although,

consistently with our earlier assessment, the reference to

the person’s “defect of understanding” arguably points to

the immediate effect that a person’s mental disability may

have on their decision whether to consent, it does little to

clarify whether the legislature intended the statutes to pro-

tect only those whose mental disabilities render them per-

manently incapable of appraising the nature of sexual con-

duct, or what exactly that appraisal entails.

What is more helpful is that the commentary next

discusses two cases regarding the mental capacity required

by law to classify a person as “[intellectually disabled].” Id.

(citing 93 ALR 918 (originally published in 1934)). The com-

mentary contrasts an Iowa case, State v. Haner, 186 Iowa

1259, 173 NW 225 (1919), with a Texas case, Lee v. State,

43 Tex Crim Rep 285, 64 SW 1047 (1901). The commentary

characterizes the determining factor in Haner as “the lack

of mental capacity to know the right or wrong of the sexual

conduct,” whereas it describes Lee as requiring the show-

ing of a mind “so defective as to lack power to give or with-

hold consent.” Commentary § 105 at 107 (emphasis added).

It further states that the Haner rule “closely approximates

the rule” in the draft, whereas the Lee rule “would in fact

abolish the legal conclusion of lack of consent of a [person

with an intellectual disability] by requiring that no power

to consent be present.” Id.

Cite as 373 Or 122 (2024) 145

In Haner, the court concluded that the Iowa legisla-

ture had intended its statute to protect both those who were

incapable of resisting sexual conduct and those who, “while

having some degree of intellectual power and some capac-

ity for instruction and improvement,” lacked the “mental

strength” to offer effectual resistance to sexual advances. 186

Iowa at 1262, 173 NW at 226. The court went on to state that

such persons would include individuals who are “so far below

the average in mental strength” that they are “incapable of

knowing or realizing the moral quality of their act[.]” Id.

The commentary’s observation that Haner “closely”

approximates the commission’s rule is informative. That

observation—and particularly the commentary’s further

explanation that, under Haner, the determining factor had

been whether the alleged victim lacked the mental capacity

to know the right or wrong of the sexual conduct—provides

some support for the state’s argument that the ability to

“apprais[e] the nature of the conduct” as described in ORS

163.305(3) includes the ability to consider the implications of

engaging in sexual conduct, not just to recognize that an act

is “sexual.” The commentary’s reference to our own Lee deci-

sion arguably reflects a similar concern for individuals who

may recognize sexual conduct as such but who nonetheless

are deemed incapable of consenting to it.10

We caution, however, that, although the commen-

tary and the cases it cites refer to person’s ability to recog-

nize whether sexual conduct is right or wrong—its “moral

quality”—the focus of the statutes at issue is the alleged

victim’s capacity to exercise judgment regarding proposed

conduct, and not whether others might view the resulting

decision as morally “correct.” As the commentary empha-

sizes, “ ‘[l]ack of capacity to appraise the nature of [the per-

son’s] conduct’ does not include appraisal involving value

10

This court’s opinion in Lee did not involve the capacity of adults with intel-

lectual disabilities to consent to sexual conduct. Rather, that case discussed the

presumed incapacity of children below a certain age to “consent to an act which is

palpably wrong, both in morals and in law.” Lee, 33 Or at 509; see also id. (discuss-

ing age at which one is presumed to be capable of “consenting to that particular

immoral act which, when discovered, ostracizes [them] from good society”). But,

at least in that context, the court and, by implication, the legislature, appear to

have viewed valid consent as requiring a recognition of more than the sexual

character of conduct.

146 State v. Wallace

judgments * * *.” Commentary §§ 109-11 at 112. Although

that comment is arguably in tension with the commentary’s

earlier focus on whether a person can recognize conduct as

right or wrong, we understand the latter comment to refer

to external notions of morality—whether those of a person’s

family or community or those of a court or jury—which do

not control whether an alleged victim can or has validly con-

sented to sexual conduct. What matters is whether they are

capable of exercising their own judgment regarding consent.

Though, as the state argues and defendant appears to agree,

that exercise of judgment may well involve some assessment

of the potential personal and social consequences of engag-

ing in sexual conduct, the ultimate question is whether the

person is capable of taking such consequences into consid-

eration in deciding whether to consent, and not whether the

person’s ultimate decision is subjectively right or wrong in

anyone else’s view.

Relatedly, the commentary suggests that, to the

extent that a person must be aware that sexual conduct has

personal and social consequences to be capable of consent-

ing to it, they need not be cognizant of all such potential

consequences. In addition to rejecting the notion of “value

judgments,” the legislature made it clear that the ability to

consent does not require the “consideration of remote con-

sequences of the immediate act.” Commentary §§ 109-11 at

112. That express reference to “remote consequences” sug-

gests that there are reasonable limits to how extensively a

person must understand the potential consequences of sex-

ual conduct before being deemed capable of consent. Thus,

we agree with defendant that a person may be capable of

consenting to sexual conduct even if the person does not

understand—or is not even capable of understanding—all

of the potential personal or social consequences associated

with it, so long as their understanding is sufficient to allow

them to form a judgment in light of those kinds of concerns.

As for the scope of a person’s incapacity, and

whether it is assessed with regard to the person’s ability

to ever acquire capacity or only with regard to the specific

instance of conduct at issue, the legislative history of a sep-

arate provision in ORS 163.315(1)—one related to mental

Cite as 373 Or 122 (2024) 147

incapacitation—supports the state’s argument that the leg-

islature did not intend to require the state to prove that a

person would never be able to appraise the nature of their

conduct.

When originally proposed, “mentally incapacitated”

was defined as “rendered temporarily incapable of apprais-

ing or controlling his conduct.” Criminal Law Revision

Commission, Article 13, Preliminary Draft No. 1, Jan 1969.

At a July 1969 full commission meeting, two commission

members (Judge James Burns and Bruce Spaulding) asked

why the definition of “mentally incapacitated” referred to

“temporary incapability.” Minutes, Criminal Law Revision

Commission, July 19, 1969, 3. The chairman explained that

“it was intended to refer to incapacity caused by hypnosis,

narcotics or alcohol, all of which would be temporary in

nature.” Id. Spauling argued that if someone were able to

“permanently incapacitate” another person with, for exam-

ple, an overdose of narcotics, he too should be guilty of the

offense. Another member moved to remove “temporarily,”

and the motion carried. Id. That change indicates that the

legislature understood “incapacity” to have potential tempo-

ral implications. In the Final Draft Report, the commission

appears to have reverted to its original position, as the final

version added that “[m]entally incapacitated means that a

person is rendered incapable of appraising or controlling his

conduct at the time of the alleged offense * * *.” Commentary

§ 104 at 104 (emphasis added); see also id. § 105 at 106 (clar-

ifying that a person is “mentally incapacitated * * * at the

time of the alleged offense” when that person is “rendered

temporarily incapable of appraising or controlling his con-

duct” (emphases added)). Those changes also suggests that

the legislature recognized that, if it wanted to limit incapac-

ity to one time or another—or one form or another, such as

present or permanent—it would be better to explicitly state

that qualifier, something that it chose not to do with regard

to the consent provision at issue here.

E. Summary of Statutory Interpretation

Based on the foregoing assessment of the text, con-

text, and relevant legislative history of ORS 163.305(3) and

ORS 163.315(1)(b), we adhere to our articulation of their

148 State v. Wallace

meanings in Reed, with some clarification. As we concluded

in Reed, for an alleged victim to be capable of consenting to

a sexual act, they must be capable of appraising the nature

of their conduct, and that “ ‘appraisal’ must constitute an

exercise of judgment and the making of choices based on an

understanding of the nature of one’s own conduct.” 339 Or

at 244. We clarify that whether a person is capable of mak-

ing that appraisal may include an assessment of whether

the person recognizes that the conduct at issue has poten-

tial personal and social consequences, but no specific under-

standing or consideration is determinative—what matters

is whether there is a basis for the jury to conclude that the

person was incapable of exercising judgment regarding the

significance of that conduct. Further, whether a person is

capable of appraising conduct is evaluated at the time of the

conduct and depends on whether the person is capable of

appraising that conduct. The state is not required to prove

that the person’s intellectual disability permanently pre-

vents them from acquiring that capability, but only that it

prevented them from appraising the nature of the conduct at

issue. Finally, as Reed specifically held, to rely on the theory

that an alleged victim was incapable of consenting because

of an intellectual disability, the state must establish a causal

connection between that disability and the person’s incapa-

bility of consenting to sexual conduct. Id. at 245-46.11

F. Application to this Case

Having interpreted the statute, we turn to whether

the trial court correctly denied defendant’s motion for judg-

ment of acquittal, that is, whether the state’s evidence was

legally sufficient to permit a rational jury to find that J was

incapable of consent under the statute as construed. On

appeal, the Court of Appeals agreed with defendant, holding

that the state’s evidence was insufficient as a matter of law

11

In his response brief to this court, defendant argues for the first time that,

as in Reed, the state in this case failed to establish that J’s intellectual disability

rendered her incapable of consenting to defendant’s conduct; that is, the state

did not establish that “necessary link.” Reed, 339 Or at 245-46 (so describing

the required causal connection). Because defendant has neither preserved that

argument nor asked that we review it as plain error, and because, in any event,

that requirement is in question following the more recent statutory change, ___

Or at ___ n 1 (slip op at 1 n 1) (discussing statutory change eliminating specific

reference to intellectual disability), we do not consider it further here.

Cite as 373 Or 122 (2024) 149

to establish that J was incapable of consenting to the sexual

acts that formed the basis of defendant’s charges. Wallace,

321 Or App at 718-19. As noted above, in reviewing whether

the evidence was sufficient to go to the jury under the cor-

rect interpretation of the law, we view the evidence in the

light most favorable to the state. Hedgpeth, 365 Or at 730.

For the reasons that follow, we conclude that the evidence at

trial was sufficient to go to the jury on the issue of whether J

was capable of consent, and that the Court of Appeals erred

in holding otherwise. Thus, we, affirm in part and reverse

in part the decision of the Court of Appeals and the judg-

ment of the trial court.12

In its own opinion, the Court of Appeals explained

its conclusion that the evidence was insufficient to go to the

jury on the issue of consent as follows. First, after recount-

ing many of the details of J’s testimony and acknowledg-

ing that J may well have misunderstood that the conduct

defendant referred to as “foreplay” was in fact sex, the court

held that “the evidence does not support the finding that

J did not understand that the activity initiated by defen-

dant was sexual in nature.” Wallace, 321 Or App at 717-18.

The court followed that statement with: “[H]ere, as in Reed,

there is no evidence that J’s mental disability prevented her

from understanding the sexual nature of the conduct that

defendant initiated.” Id. at 718. Finally, the court concluded:

“Nor would the evidence support a finding that, because of

her mental disability, J lacked the ability to exercise judg-

ment to consent to sexual conduct.” Id. The Court of Appeals

appears to have drawn that conclusion from its earlier con-

clusion that J necessarily understood that the charged con-

duct was sexual in nature, but it did not explain how one

conclusion compelled the other or otherwise explain why the

evidence fell short in the latter regard.

We view the evidence differently. Given J’s profound

confusion about what defendant was doing to her and why,

her testimony that the things that he had her do (or that he

12

As previously noted, our decision on this case does not affect the Court of

Appeals’ decision or the trial court’s judgment as to Count 1, ___ Or at ___ n 2

(slip op at 3 n 2), and we summarily reverse defendant’s conviction on Count 5

because it was the result of a nonunanimous jury verdict, ___ Or at ___ n 2 (slip

op at 3 n 3).

150 State v. Wallace

did to her) were disgusting and painful, and the associations

she made between sex, on the one hand, and love, marriage,

and childbearing (none of which she understood to apply

here), on the other, we are less confident than the Court

of Appeals regarding J’s understanding that the charged

conduct was “sexual in nature.” Even assuming, however,

that no rational juror could conclude that she lacked that

understanding, we disagree with the Court of Appeals’ con-

clusion that “the evidence [could not] support a finding that,

because of her mental disability, J lacked the ability to exer-

cise judgment to consent to sexual conduct.” Id.

We therefore conclude that the Court of Appeals

erred. To illustrate why, we first revisit the facts of Reed. In

Reed, we considered the alleged victim’s testimony, ultimately

concluding that it indicated that she was capable of consent-

ing, specifically, to understand that having sexual relations

with the defendant was wrong and that what the defendant

was attempting was “not something that she wanted to do.”

339 Or at 245. The alleged victim in Reed testified that:

• She told the defendant that she did not want to be

touched when he unbuckled her belt and put his hands

down her pants;

• She told defendant “Get your hands out of there. I don’t

want” when he unbuttoned her blouse and touched her

breast;

• She pushed defendant back and told him that she

wanted him to leave when he started getting “fresh”

with her; and

• She was “not the type of girl to do that” when describing

how defendant pulled down her pants and told her that

they were in his house and that he could do what he

wanted.

Id. Those statements—comprising the victim’s clear descrip-

tions of the incidents and characterizations of the defen-

dant’s actions as getting “fresh” with her—gave some indi-

cation that she understood the sexual nature of the conduct

that the defendant had initiated. And her statement that

she was “not the type of girl to do that” indicated that she

understood that there were potential personal and social

consequences of engaging in sexual conduct.

Cite as 373 Or 122 (2024) 151

Here, in contrast, the evidence more clearly sug-

gests that, even if J understood that the conduct that defen-

dant had initiated was sexual in nature, she was not capa-

ble of appraising that conduct—of exercising judgment with

regard to engaging in it. J said in her forensic interview

that, when defendant had her undress so that he could take

pictures of her, it seemed “strange that he would want to

take pictures of me nude” and that she did not know why he

had her do that. She repeatedly described the incidents as

“scary” and that they “did not felt [sic] right” and “did not

felt [sic] normal at all.” Those statements reflect an indi-

vidual who, if she understood that the conduct at issue was

sexual, not only failed to make a conscious decision whether

to go along—that is, exercise judgment with regard to that

conduct—but who also, due to an intellectual disability, was

incapable of doing so. Or so a jury could rationally find.

This court’s opinion in Reed again helps illustrate

that point. In that case, after concluding that the victim’s

testimony had not provided any affirmative support for the

state’s case, the court considered the testimony of the state’s

expert to determine whether it provided “affirmative evi-

dence that, at the time of the alleged crimes, the victim had

a mental defect and that that mental defect had rendered

her incapable of consent.” 339 Or at 245. We explained that

the state’s expert had provided a “general summary” of the

victim’s social functioning ability, testifying that the victim:

• has an IQ in the “mild to moderate mental retardation

range”;

• is a “very dependent person” who lives at home;

• depends on her mother for guidance and support;

• “couldn’t operate” in sheltered workplace settings like

Goodwill and the Salvation Army; and

• needs another adult to “direct her and care for her to

assure safety in all domains, particular with regard to

social functioning.”

Id. at 246-47. The expert also testified generally about indi-

viduals functioning at a similar intellectual level, stating

that they are “easily victimized,” typically have a payee

for their disability benefits, and need ongoing intensive

152 State v. Wallace

supervision to “make sure that they take adequate care of

themselves and * * * stay out of harm’s way.” Id. at 247.

As we noted in Reed, the expert in that case was never

asked directly whether the victim’s mental disability rendered

her incapable of consenting to sexual contact. Id. Instead, the

expert offered generalized testimony about the victim’s capac-

ity to function in other social situations, and even more gen-

eralized testimony about the social functioning capacity of

similar individuals. Id. The state did not sufficiently connect

that evidence of the victim’s impaired social functioning to her

alleged inability to appraise the nature of the conduct initi-

ated by the defendant. Id. The state conceded as much at oral

argument, acknowledging that it had not offered direct evi-

dence of how the victim’s intellectual disability had affected

her ability to appraise the nature of her conduct. Id. We there-

fore concluded that, on its own, the expert’s generalized testi-

mony could not establish that the victim had been incapable

of consenting to the charged sexual conduct in that case. Id.

Here, on the other hand, the state linked J’s arguable

inability to exercise judgment about defendant’s sexual con-

duct—as opposed to merely recognizing it as sexual—to the

manner in which she functioned in other social situations,

which undisputedly was due to her intellectual disability. For

example, J’s caseworker described her as a “concrete thinker”

who thinks about concepts in “very black and white” terms,

has difficulty with “abstract thought,” and tends to “fixate”

only on the tangible aspects of communications. Relatedly,

the challenges J experienced while testifying at trial reflected

similar difficulties processing her thoughts. Together with her

accounts of how she absorbed and responded to defendant’s

conduct, that evidence could support the inference that, at

the time of defendant’s charged conduct, J’s intellectual dis-

ability rendered her incapable of appraising the nature of her

conduct. Accordingly, the trial court did not err in denying

defendant’s motion for judgment of acquittal on that basis.

III. CONCLUSION

We conclude that a rational trier of fact could have

found that the victim’s mental disability rendered her

incapable of appraising the nature of the conduct, and we

Cite as 373 Or 122 (2024) 153

therefore affirm the denial of defendant’s motion for judg-

ment of acquittal. But because defendant’s conviction on

Count 5 was nonunanimous, we reverse that conviction and

remand to the trial court for a new trial on that count.

The decision of the Court of Appeals is reversed in

part and affirmed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.